     Case: 17-70019      Document: 00514647039         Page: 1    Date Filed: 09/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 17-70019                            FILED
                                                                      September 18, 2018
                                                                         Lyle W. Cayce
MARK ANTHONY SOLIZ,                                                           Clerk

              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-4556


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Mark Anthony Soliz was convicted of capital murder and sentenced to
death. After his unsuccessful direct appeal and petition for habeas relief to the
state court, he filed a federal habeas application that raised 21 claims. The
district court denied relief but granted a certificate of appealability for one of




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-70019
the claims. Soliz also seeks a COA on three additional claims. We DENY any
additional COA and AFFIRM the district court’s denial of any relief.


              FACTUAL AND PROCEDURAL BACKGROUND
      A Texas jury convicted Mark Anthony Soliz of capital murder and
sentenced him to death. The Texas Court of Criminal Appeals unanimously
affirmed the judgment on direct appeal and denied habeas corpus relief. Soliz
v. State, 432 S.W.3d 895 (Tex. Crim. App. 2014); Ex parte Soliz, No. WR-82,429-
01 2014 WL 12713257 (Tex. Crim. App. Dec. 17, 2014).
      On direct appeal, the Court of Criminal Appeals’ opinion summarized
the facts surrounding Soliz’s conviction.     Soliz does not challenge these
determinations of fact, and thus, we presume them to be true. See 28 U.S.C.
§ 2254(e)(1). As summarized by that court, the relevant facts are these:
            The instant offense was one of numerous offenses that
      appellant and his accomplice, Jose Ramos, committed during an
      eight-day crime spree that ended when appellant and Ramos were
      arrested. Most of these offenses were committed in the Fort Worth
      area, but the instant offense took place in Godley, which is in
      Johnson County. This offense was discovered when Ramos
      mentioned it in response to a Fort Worth police detective’s question
      about another offense that appellant and Ramos had committed.

            Appellant’s and Ramos’s crime spree began with a June 22,
      2010 burglary in which they took several long guns and a Hi-Point
      9-millimeter semiautomatic handgun, among other items. Later
      that evening, appellant showed the stolen weapons to a potential
      buyer, Ramon Morales. Morales wanted to buy all five weapons,
      but appellant was not willing to part with a rifle and the handgun.
      Appellant told Morales that he had plans for them. Morales
      bought the three long guns and pawned them the following day.

            On the morning of June 24, 2010, appellant approached a
      stranger, Justin Morris, in the parking lot of a shopping mall,
      pointed a gun at him, and demanded his wallet. Morris complied,
      and appellant took Morris’s wallet and left. Appellant was later
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                           No. 17-70019
 videotaped by a convenience-store security camera as he
 attempted to use Morris’s debit card at an ATM.

       Later that morning, after witnessing an argument between
 Luis Luna and a female friend of appellant’s, appellant asked his
 friend if she wanted him to “get [Luna] wet,” which was street talk
 for drawing Luna’s blood or killing him. Appellant fired the gun
 in the direction of Luna’s head, but the bullet passed through
 Luna’s ear lobe without seriously injuring him.

       That afternoon, appellant and Ramos held Jorge Contreras
 at gunpoint in a store parking lot while they stole his green Dodge
 pickup truck. Later the same day, appellant approached Sammy
 Abu-Lughod in a different store parking lot as Abu-Lughod was
 getting into his green Dodge Stratus. Appellant pointed a black
 handgun at Abu-Lughod and demanded his wallet, cell phone, and
 car. After taking Abu-Lughod’s personal items, appellant told him
 to walk away. Abu-Lughod complied while appellant drove away
 in the Stratus.

       Around 2:00 a.m. on June 28, 2010, appellant and Ramos
 approached four people who were leaving a bar and demanded
 their money and wallets. The victims complied. After taking their
 wallets, appellant and Ramos left in the Stratus.

        At 3:30 a.m. on June 29, 2010, Ramos and appellant
 committed a “drive-by” shooting. Ramos drove the car while
 appellant fired shots into a house where they thought a rival gang
 member might be staying. At about 5:00 a.m., appellant and
 Ramos approached Enrique Samaniego as he was walking to his
 pickup truck to leave for work. Either appellant or Ramos shot
 Samaniego four or five times in the stomach. Samaniego sustained
 life-threatening injuries, but he survived.

       Around 5:30 a.m., appellant and Ramos approached Ruben
 Martinez, a delivery truck driver who had just completed a beer
 delivery at a Texaco gas station, as Martinez was walking back to
 his truck. Appellant pointed the gun at Martinez and demanded
 his wallet. Martinez complied, offering his cell phone as well.
 Disappointed that Martinez’s wallet contained only ten dollars,


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                            No. 17-70019
 appellant shot him in the neck.         Martinez later died from
 complications of this injury.

       Less than an hour after shooting Martinez, appellant
 approached Kenny Dodgin as Dodgin was exiting his car in the
 parking lot of a Lowe’s store. Appellant pointed a gun wrapped in
 a blue bandanna at Dodgin. Upon seeing appellant, Dodgin locked
 his car and ran toward the store. He heard three gun shots behind
 him.

       Around 7:00 a.m., appellant burglarized two homes in
 Benbrook, a town southwest of Fort Worth. Later that morning,
 appellant and Ramos drove to Weatherly’s home and committed
 the instant offense.

       The Fort Worth Police Department’s Communications
 Division received the call when appellant robbed Abu-Lughod of
 his green Stratus, as well as later calls reporting robberies and
 shootings involving a green or teal sedan. A 9-1-1 call-taker
 supervisor informed detectives that the stolen Stratus might be
 the green or teal sedan involved in the later offenses. Detectives
 subsequently reviewed offense reports and compared notes. Based
 on the close physical and temporal proximity of some offenses as
 well as similarities in the descriptions of the suspect, weapon,
 vehicle, and modus operandi, they determined that approximately
 thirteen burglaries, aggravated robberies, and shootings in the
 Fort Worth area, dating from June 22 to June 29, were likely to be
 connected. Because of the escalation of violence in the Samaniego
 and Martinez offenses, all Fort Worth police officers were
 instructed to be on the lookout for the stolen Stratus.

       Around 10:30 p.m. on June 29, officers in an unmarked
 vehicle established surveillance on the house of a known gang
 member, Arturo Gonzales, which was near the last known location
 of the Stratus. Eventually they observed the Stratus leaving
 Gonzales’s house, closely following a Jeep Liberty. The two
 vehicles appeared to be traveling together. Officers identified the
 Stratus by its license plate as the vehicle they were searching for
 and radioed for a marked patrol unit to initiate a stop. With lights
 and siren activated, a marked unit began following the Stratus.
 Instead of stopping, however, the Stratus accelerated and passed

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                           No. 17-70019
 the Liberty. After a brief pursuit, the Stratus crashed into a
 parked eighteen-wheeler.

        Appellant exited through the passenger side window and ran
 through parking lots and across a freeway before officers stopped
 and arrested him. The other occupant of the Stratus, Elizabeth
 Estrada, exited the Stratus and ran behind the eighteen-wheeler,
 where officers quickly arrested her. The stolen handgun and the
 blue bandanna were found inside the Stratus. Meanwhile, police
 officers stopped the Liberty for an equipment violation and
 transported its occupants, including Ramos, to the police station
 for questioning.

       Ramos admitted his participation in some of the offenses and
 provided useful information about them.           However, when
 detectives questioned Ramos about the aggravated robbery in
 which Contreras’s green pickup truck had been stolen, Ramos
 provided information that was inconsistent with the information
 detectives had already obtained about that offense. Specifically,
 Ramos indicated that the offense had ended badly and stated that
 it did not have to “end that way.” This statement puzzled
 detectives because no one had been hurt and no shots had been
 fired during the offense. Ramos also referred to a female victim
 rather than a male victim. After some initial confusion, detectives
 ascertained that Ramos was describing a previously unknown
 offense committed in Johnson County. Ramos indicated that a
 female victim had been shot during a burglary or robbery and her
 green Toyota Tundra pickup truck had been stolen.

       Ramos provided directions to the stolen Tundra, which
 detectives found parked about a block from Gonzales’s house.
 Detectives checked the truck’s registration and obtained the name
 and address of its owner, Nancy Weatherly. They then contacted
 the Johnson County Sheriff’s Office and drove to Weatherly’s
 house. A sheriff’s deputy joined them at the house. They observed
 that the gate and garage door were open, and the back door of the
 house was partially open. The interior had been ransacked.
 Weatherly’s body was lying in the kitchen area next to a table and
 chair. She had been shot once in the back of the head.



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                            No. 17-70019
       The investigation of this offense was ongoing when Fort
 Worth Detectives William “Danny” Paine and Thomas Boetcher
 began questioning appellant at the police station. The interview
 was recorded. Boetcher advised appellant of his rights and
 appellant stated that he understood them. When asked if he was
 willing to talk about the offenses, appellant answered, “All right.”
 Paine and Boetcher initially questioned appellant about the Fort
 Worth offenses. Later, as they received information about the
 Johnson County investigation, they questioned appellant about
 that offense as well.

       Paine and Boetcher also obtained two typed and signed
 statements from appellant that summarized his oral statement.
 The first typed statement concerned the Fort Worth offenses. In
 it, appellant admitted his involvement in the Abu-Lughod,
 Contreras, Morris, Martinez, Dodgin, and bar patron robberies, as
 well as the Luna shooting. He also acknowledged that Ramos did
 not participate in all of these offenses.

       Appellant’s second typed statement concerned the instant
 offense. In it, appellant admitted that he and Ramos had driven
 to Godley, where appellant had threatened Weatherly with a gun
 and had burglarized her house. Appellant denied shooting
 Weatherly, stating that after he and Ramos had loaded what they
 wanted into the Tundra, appellant left the gun inside with Ramos
 and went outside to start the car. He then heard a shot and saw
 Ramos walking out of the house. With Ramos driving the Tundra
 and appellant driving the car, they returned to Fort Worth.

        After appellant signed the second typed statement,
 detectives questioned him further. Appellant wavered about
 whether he or Ramos was the person who shot Weatherly.
 Eventually, appellant stated that he would confess to the shooting
 just to “get this over with,” and admitted that he shot Weatherly.
 He also wrote and initialed a sentence at the end of his second
 typed statement: “It was me that shot that wom[a]n!!!”

       Appellant’s statements were not the only evidence that
 appellant committed the instant offense. Estrada, who was riding
 in the Stratus with appellant when it crashed, testified that
 appellant bragged to her about killing an “old lady” in a house in

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                           No. 17-70019
 Godley. Appellant told Estrada that he knocked on the door, and
 when the lady opened it, he pointed the gun at her. The lady
 backed up, and appellant made her sit down. Appellant told
 Estrada that he killed one of the lady’s horses, which made the
 lady cry. She begged for her life and prayed. When appellant
 showed the lady that he was stealing her jewelry box, she asked
 him not to take it because it had been a gift from her mother, who
 was now deceased. Appellant then told her to go with her mother
 and shot her in the head. He demonstrated for Estrada how he
 held out the gun and fired. He laughed about the incident and
 ridiculed the lady’s “country” accent. He said that later, while
 taking methamphetamine, he had flashbacks about killing the
 lady and “seeing her brains go everywhere.”

       Weatherly’s neighbor testified that she passed Weatherly’s
 house around 10:30 a.m. on June 29 and saw a green Stratus
 parked by the house, facing the road. The next day, when she
 watched the news, she recognized the car that had been recovered
 in Fort Worth as the car she had seen at Weatherly’s house.
 Further, a law-enforcement officer testified that, while he was
 transporting appellant and Ramos from Fort Worth to Johnson
 County for pretrial proceedings, he overheard appellant telling
 Ramos that all they needed to do was “play dumb,” and authorities
 would “get” the man who pawned the guns (presumably a reference
 to Morales) on capital murder.

       Forensic evidence also connected appellant to the instant
 offense. Jennifer Nollkamper, a forensic scientist with the Fort
 Worth Police Department crime laboratory, determined that the
 shell casing recovered from Weatherly’s home had been fired
 through the Hi-Point 9-millimeter semi-automatic handgun
 recovered from the Stratus. Nollkamper testified that the bullet
 recovered from Weatherly’s home was too damaged for her to state
 affirmatively that it was fired from the recovered weapon, but she
 could state affirmatively that it was fired from a Hi-Point 9-
 millimeter semi-automatic handgun. Lannie Emanuel, a tool
 mark and firearm examiner for a private forensic laboratory,
 agreed with Nollkamper’s determination that the shell casing had
 been fired through the recovered weapon. Emanuel, however, did
 not think that the bullet was too damaged for a positive


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                                   No. 17-70019
      comparison. He testified affirmatively that the bullet recovered
      from Weatherly’s home was fired from the recovered weapon.

            William Walker, a fingerprint examiner with the Tarrant
      County Medical Examiner, positively identified a latent
      fingerprint on an audiocassette case in Weatherly’s spare bedroom
      as appellant’s fingerprint. A trace analyst from the Tarrant
      County Medical Examiner’s Office identified gunshot residue on
      appellant’s clothing and hands, the interior of the Stratus, and a
      blue bandanna and towel that were recovered from the Stratus.

Soliz, 432 S.W.3d at 896-900 (alterations in original).
      Notably, the Court of Criminal Appeals also found that at trial, defense
counsel   offered    Soliz’s   videotaped       statement into    evidence    “without
qualification and for all purposes while cross-examining one of the detectives
who interviewed” him. Id. at 903. The trial court admitted the videotape. Id.
Though the statement is often referred to as a confession, on the videotape
Soliz blames Ramos for the Weatherly murder. In a difficult case for the
defense, the videotape offered jurors some mitigation evidence. Soliz’s written
statements, which the court found to be summaries of the videotaped
confession, were later offered by the State and admitted in evidence. Id.
      Following his direct appeal and petition for habeas relief to the state
court, Soliz applied to the United States District Court for the Northern
District of Texas for a writ of habeas corpus under 28 U.S.C. § 2254. He
presented 21 claims. Soliz had presented all but one of them in state court.
The district court denied relief for each of the claims.           It then granted a
certificate of appealability (“COA”) only on Claim 20, which generally concerns
the trial court’s admitting Soliz’s videotaped statement into evidence. Soliz
argued that the videotape was inadmissible under Miranda v. Arizona, 384
U.S. 436 (1966). The district court held that the claim was procedurally barred



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                                  No. 17-70019
and, alternatively, unmeritorious. The district court’s grant of a COA for
Claim 20 concerns those two holdings.
      Soliz has filed with this court a petition for an additional COA. He
contends that reasonable jurists would find debatable the district court’s
rejection of these three claims: (A) trial counsel rendered ineffective assistance
by offering Soliz’s videotaped statement into evidence; (B) the Supreme Court’s
decision in Atkins v. Virginia, 536 U.S. 304 (2002) encompasses individuals
who suffer from fetal alcohol syndrome disorder; and (C) trial counsel rendered
ineffective assistance by failing to object to the admissibility of a letter written
by Soliz to a prospective juror. Soliz further argues the district court erred in
applying a procedural bar to Claim 20 and maintains that the videotaped
statement was inadmissible under Miranda.


                                  DISCUSSION
      We first discuss Soliz’s request for a COA on the three issues not included
within the district court’s grant. We then analyze Claim 20 for which the
district court did grant a COA.


I.    Petition for Additional COA
      Rule 11 of the Rules Governing Section 2254 Cases provides that a
district court “must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” That request in district court is the
prerequisite for requesting a COA from this court under 28 U.S.C. § 2253(c)(1).
Cardenas v. Thaler, 651 F.3d 442, 445 (5th Cir. 2011). Without a COA, we do
not have jurisdiction to consider the merits of an appeal from the denial of
habeas relief.    Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir. 2006).
Uncertainties about a COA are resolved in favor of those facing the death
penalty. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
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                                 No. 17-70019
      Neither the district court nor this one should grant a COA absent “a
substantial showing of the denial of a constitutional right.”         28 U.S.C.
§ 2253(c)(2). The showing necessary to satisfy this standard varies according
to whether the district court resolved a petitioner’s claim on the merits or on
procedural grounds. “When the district court denies relief on the petitioner’s
constitutional claim on the merits, ‘[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Flores v. Stephens, 794 F.3d 494,
502 (5th Cir. 2015) (alteration in original) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). “Where a petition is dismissed on procedural grounds, the
petitioner must also demonstrate ‘that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.’” Fratta v.
Davis, 889 F.3d 225, 228 (5th Cir. 2018) (quoting Slack, 529 U.S. at 484).
      Regardless of whether the district court’s resolution was on a procedural
ground or on the merits, we are to decide whether the district court’s resolution
is “debatable.”     Our appraisal is conducted with the deference the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) “mandates federal
courts show their state peers.” Prystash v. Davis, 854 F.3d 830, 835 (5th Cir.
2017). Unless rebutted by the petitioner with clear and convincing evidence,
we assume that the state court’s determination of facts is correct. 28 U.S.C.
§ 2254(e)(1). When the state court has considered and rejected the merits of a
petitioner’s claims, we may grant relief only if the state court judgment
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id. § 2254(d).


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                                     No. 17-70019
        We now consider the three claims for which Soliz seeks a COA by
applying these rules.


        A. Counsel’s Offering Confession
        Soliz claims that trial counsel rendered ineffective assistance by offering
his    videotaped      confession   into   evidence    without   qualification.     He
acknowledges this claim is procedurally defaulted because it was not presented
in state court, but he argues there is cause to excuse the default under
Martinez v. Ryan, 566 U.S. 1 (2012). The district court concluded that Soliz
had not shown cause because he failed to demonstrate that the underlying
ineffective assistance of trial counsel (“IATC”) claim had merit and,
alternatively, because he had not attempted to show that state habeas counsel
was ineffective for not raising the claim. The district court also denied relief
on the IATC claim because it was without merit. In summary, the district
court found no merit to the claim of deficient attorney performance at trial and
thus no merit to the claim of ineffectiveness by habeas counsel in not raising a
claim of deficient trial counsel.
        In order to establish cause to excuse the procedural default, Soliz must
show “(1) that his claim of ineffective assistance of counsel at trial is
substantial — i.e., has some merit — and (2) that habeas counsel was
ineffective in failing to present those claims in his first state habeas
proceeding.” Segundo v. Davis, 831 F.3d 345, 350 (5th Cir. 2016) (italics added)
(quoting Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013)). The second
requirement, showing that state habeas counsel was ineffective, requires
evidence “both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense.” Wessinger v. Vannoy, 864 F.3d 387, 391
(5th Cir. 2017). As to ineffective counsel claims generally, the “performance
inquiry [is] whether counsel’s assistance was reasonable considering all the
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                                       No. 17-70019
circumstances.” Id. (alteration in original) (quoting Strickland v. Washington,
466 U.S. 668, 688 (1984)).          We “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689 (1984). As to the prejudice inquiry, “a
petitioner must demonstrate that ‘there is a reasonable probability that he
would have been granted state habeas relief’ if not for counsel’s deficiency.”
Wessinger, 864 F.3d at 391 (quoting Newbury v. Stephens, 756 F.3d 850, 871-
72 (5th Cir. 2014)). “The likelihood of a different result must be substantial,
not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
       Thus, a Section 2254 application seeking to excuse procedural default
must show counsel was deficient at two different proceedings — both the
counsel at the time of the state criminal conviction and then the counsel at the
time of state habeas. Soliz argues his habeas counsel 1 deficiently performed
because it “should have been obvious” to habeas counsel that trial counsel
provided ineffective assistance by offering his videotaped confession into
evidence. Besides claiming obviousness, there was not much effort to refute
the reasonableness of trial counsel’s explanation for introducing the confession,
which we discuss next.
       What we see from the record is considerable zeal by state habeas counsel,
including filing a 141-page state habeas application that raised 18 claims for
relief, ten of which were IATC claims. Additionally, it was not unreasonable
for habeas counsel to avoid making an IATC claim based on trial counsel’s
offering the confession into evidence. The record supports that trial counsel
offered the confession into evidence in support of the defense’s mitigation
theory. Throughout trial, counsel attempted to establish that Soliz’s mental



       1In his state habeas proceedings, Soliz was represented by the Office of Capital Writs,
which is a public defender’s office that specializes in post-conviction capital litigation.
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                                 No. 17-70019
impairments, drug use, and chaotic upbringing caused him to behave in a way
that was irrational and impulsive.         When trial counsel introduced the
confession, he contrasted Soliz from “smart criminals” who do not implicate
themselves on videotape. He suggested that “smart criminals,” unlike Soliz in
the video, invoke their rights, request a lawyer, and do not sign statements.
During closing argument, trial counsel reminded the jury that he had
introduced the confession and suggested that because of Soliz’s mental
impairments, the evidence did not support finding him guilty of capital
murder; he urged the jury to convict Soliz of the lesser offense of murder.
      Regardless of ultimate effectiveness, trial counsel was attempting to
show jurors that Soliz was not culpable for capital murder. The district court
analyzed the reasonableness of counsel’s actions this way:
            A reasonable argument exists that trial counsel met
      Strickland’s objective standard. Reasonable counsel could have
      decided that the chance of success on appeal was slim given the
      circumstances of the confession and other, strong evidence of guilt.
      See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (establishing
      that erroneous admission of confession is harmless if [the] State
      can establish beyond a reasonable doubt that it did not contribute
      to the conviction). By offering the confession rather than waiting
      for the State to do it, counsel diluted its negative impact and
      presented himself to the jury as forthright and honest. In doing
      so, counsel did not give up his adversarial role, but used the
      confession to support the mitigation theory, undermine the
      reliability of the confession, and argue for a murder conviction.
            There are “countless ways” to provide effective assistance in
      any given case. Strickland, 466 U.S. at 689. “Attorneys
      representing capital defendants often face daunting challenges in
      developing strategies, not least because the defendant’s guilt is
      often clear.” Florida v. Nixon, 543 U.S. 175, 191 (2004). In such
      cases, “avoiding execution may be the best and only realistic result
      possible.” Id. (internal quotations and brackets omitted). Such
      strategic choices, made after a thorough investigation of the law
      and facts relevant to plausible options, are “virtually
      unchallengeable.” Strickland, 466 U.S. at 690. “Such tactical

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                                 No. 17-70019
      decisions, made on an informed and reasoned basis, do not fall
      below Strickland standards simply because they do not succeed as
      planned.” See Jones v. Butler, 837 F.2d 691, 693-94 (5th Cir. 1988).

      Reasonable jurists would not debate the district court’s conclusion. We
reach that conclusion because of the extensive evidence, including written
confessions, forensic evidence, and witness testimony, that independently
implicated Soliz.   See Soliz, 432 S.W.3d at 900–02.       Thus, trial counsel’s
decision to introduce the videotape would not have suggested to a reasonable
habeas attorney that by doing so, trial counsel rendered ineffective assistance.
      We deny a COA on the claim concerning trial counsel’s offering his
confession into evidence.


      B. Fetal Alcohol Syndrome Disorder
      In his direct appeal to the Court of Criminal Appeals, Soliz contended
that sentencing him to death is unconstitutional because he has permanent
brain damage stemming from partial fetal alcohol syndrome disorder
(“FASD”). Soliz, 432 S.W.3d at 903. The court rejected the claim, holding that
there was not “an emerging national consensus in favor of barring the
execution of adult offenders convicted of capital murder who are not mentally
retarded but who have permanent brain damage resulting from partial fetal-
alcohol syndrome.” Id.
      In his Section 2254 application to the district court, Soliz argued that his
death sentence violated his Eighth Amendment right against cruel and
unusual punishment. He contended that the Supreme Court’s holding that it
is unconstitutional to execute a mentally retarded individual should be
expanded to make those afflicted with FASD categorically ineligible for the
death penalty. See Atkins, 536 U.S. at 321.



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                                  No. 17-70019
      The district court rejected Soliz’s claim, concluding that it had no basis
upon which to conclude that the state court unreasonably applied clearly
established federal law. The court reasoned that Soliz had cited no Supreme
Court decision barring the execution of people with FASD.            Rather than
attempting to show how the state court’s rejection of his claim was an
unreasonable application of clearly established federal law, Soliz only sought
to expand federal law. We agree.
      “In assessing whether the district court’s rejection of [Soliz’s] claims is
debatable, we consider them under the deference AEDPA mandates federal
courts show their state peers.” Prystash, 854 F.3d at 835. “A state court’s
application of clearly established federal law is ‘unreasonable’ within the
meaning of AEDPA when the state court identifies the correct governing legal
principle from Supreme Court precedent, but applies that principle to the case
in an objectively unreasonable manner.” Nelson v. Quarterman, 472 F.3d 287,
292 (5th Cir. 2006) (en banc).
      The state court’s rejection of Soliz’s claim that Atkins should be expanded
to include individuals with FASD “could not have been an unreasonable
application of Atkins because the Supreme Court has not clearly established
the precise boundaries of determining mental retardation.”          See Hearn v.
Thaler, 669 F.3d 265, 272 (5th Cir. 2012). “When the Supreme Court refuses
to provide a specific rule, ‘it is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a specific legal rule
that has not been squarely established by th[e] Court.’” Id. (quoting Knowles
v. Mirzayance, 556 U.S. 111, 122 (2009)).
      Because the Supreme Court’s “cases give no clear answer to the question
presented,” the state court did not unreasonably apply clearly established
federal law. Wright v. Van Patten, 552 U.S. 120, 126 (2008). A COA on this
claim is denied.
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                                        No. 17-70019
       C. Counsel’s Failure to Object
       Soliz argues that trial counsel was ineffective for not objecting to a
redacted letter 2 under Texas Evidence Rule 403. 3 The Court of Criminal
Appeals rejected the claim, concluding that a Rule 403 objection would have
been a “futile act,” and under Texas law, “an attorney is not ineffective for
failing to do that which amounts to a futile act.” Soliz reasserted the claim in
his application in federal district court, which rejected it. The district court
concluded that Soliz had failed to demonstrate that the state court
unreasonably applied Strickland or that it made a ruling based on an
unreasonable determination of the facts. The court reasoned that because a
state court had concluded that an objection to the redacted letter under state
law would have been futile, a federal habeas court could not conclude
otherwise.
       To succeed on the IATC claim, Soliz must show that counsel’s failing to
object was deficient and that he was prejudiced by the deficiency.                          See
Strickland, 466 U.S. at 687. “In order to show that counsel was deficient for
failing to object,” though, “the objection must have merit.” Ries v. Quarterman,
522 F.3d 517, 530 (5th Cir. 2008). We defer to a state court’s determination
that an objection would have been meritless under state law because “in our



       2  Soliz wrote the letter to a prospective juror who was subsequently excused during
jury selection. The State offered the letter during its rebuttal case in the punishment phase
of trial to rebut a defense expert who had testified that Soliz had deficits in adaptive and
mental functioning. Trial counsel objected to the letter’s admission into evidence because it
could have forced counsel to testify on the issue of how Soliz was able to obtain the prospective
juror’s address. Trial counsel later agreed, however, to the admission of a redacted portion
of the letter. The redacted letter removed the prospective juror being identified as the letter’s
addressee.

       3Texas Evidence Rule 403 provides that a “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.”
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                                      No. 17-70019
role as a federal habeas court, we cannot review the correctness of the state
habeas court’s interpretation of state law.” Young v. Dretke, 356 F.3d 616, 628
(5th Cir. 2004).
        Soliz cannot make a substantial showing under Strickland because
Soliz’s “counsel cannot have rendered ineffective assistance of counsel by
failing to make an objection that would have been meritless.”                   Turner v.
Quarterman, 481 F.3d 292, 298 (5th Cir. 2007). We deny a COA on this claim.


II.     Claim 20
        We now consider Claim 20, the only claim for which the district court
granted a COA.         In contrast to Soliz’s claim that trial counsel rendered
ineffective assistance by offering the videotaped confession into evidence,
Claim 20 concerns the trial court’s admission of the confession. 4 The district
court denied habeas relief for Claim 20 because it was procedurally defaulted
and, alternatively, because it was unmeritorious. We do not consider the
merits of Claim 20 here, as we affirm the district court’s denial of habeas relief
on the basis that Claim 20 is procedurally defaulted.
        “[A] federal court may not review federal claims that were procedurally
defaulted in state court — that is, claims that the state court denied based on
an adequate and independent state procedural rule.” Davila v. Davis, 137 S.
Ct. 2058, 2064 (2017). “The exhaustion requirement is designed to avoid the
‘unseemly’ result of a federal court ‘upset[ting] a state court conviction without’
first according the state courts an ‘opportunity to . . . correct a constitutional




        4Soliz contends the trial court erred in admitting the videotaped confession because
it was inadmissible under Miranda. Soliz had previously challenged the admission of the
evidence in a motion to suppress. The trial court denied the motion following an evidentiary
hearing. And as earlier discussed, defense counsel introduced the confession into evidence
during cross-examination of an investigating officer.
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                                       No. 17-70019
violation.’” Id. (alterations in original) (quoting Rose v. Lundy, 455 U.S. 509,
518 (1982)).
       An adequate state procedural ground must be “firmly established and
regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard
v. Kindler, 558 U.S. 53, 60 (2009)).               “A state procedural rule operates
independently of the merits of the federal claim when a federal court could
reverse the state court’s disposition of any federal-law issues presented by the
petition and, because of the state court’s resolution of the state-law issues, the
outcome of the case would not change.” Rocha v. Thaler, 626 F.3d 815, 821
(5th Cir. 2010). Our examination of the procedural bar issue is within the
context of what the Court of Criminal Appeals likely was doing, as the court
was not explicit. We end our analysis with caselaw on how clear the reliance
on a procedural bar must be.
       In Texas criminal appeals, “the law of invited error estops a party from
making an appellate error of an action it induced.” Cary v. State, 507 S.W.3d
750, 755 (Tex. Crim. App. 2016) (quoting Prystash v. State, 3 S.W.3d 522, 531
(Tex. Crim. App. 1999)). “To hold otherwise would be to permit [the appellant]
to take advantage of his own wrong.” Prystash, 3 S.W.3d at 531. Texas courts
have applied the dictates of this broad doctrine to various contexts. 5 One of



       5 See, e.g., Ex parte Pete, 517 S.W.3d 825, 833 (Tex. Crim. App. 2017) (“A defendant
who positively asks the trial court to grant a mistrial that is limited to the punishment phase
may not be heard later to complain, after the trial court grants his request, that the limited
mistrial compromised his right to have ‘the same’ jury resolve both phases of his trial.”)
(emphasis omitted); Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003) (“Because
appellant requested the discharge as an alternative to mistrial, he is now estopped from
complaining about it.”); Livingston v. State, 739 S.W.2d 311, 341 (Tex. Crim. App. 1987) (“[A]
defendant may not request a [jury] charge and when that charge is given as requested,
complain on appeal of any error.”); Hawkins v. State, 628 S.W.2d 71, 75 (Tex. Crim. App.
[Panel Op.] 1982) (“At the conclusion of that hearing, appellant stated ‘I want her to testify
before the jury.’ We find that in view of such request, appellant is in no position to complain
with regard to the court’s failure to enter written findings of fact and conclusions of law with
regard to the admissibility of the complainant’s in-court identification testimony.”).
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                                        No. 17-70019
the relevant contexts is when an appellant seeks to challenge the admission of
evidence that he introduced at trial. As a general rule, “when the defendant
offers the same evidence to which he earlier objected, he is not in a position to
complain on appeal.” Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App.
1985).
       In short, under Texas law “a party is estopped from seeking appellate
relief based on error” “that it invited or caused, even if such error is
fundamental.” Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011).
The Court of Criminal Appeals declined to address the merits of Soliz’s claim
because it concluded that “[b]y offering his oral statement into evidence, [Soliz]
waived error concerning the trial court’s ruling on his motion to suppress this
statement.” See Soliz, 432 S.W.3d at 903. Although the court did not explicitly
state that it was relying upon the invited-error doctrine, this language
supports that it was applying the invited-error doctrine to the specific issue it
was presented. Similar language appears in other decisions where that court
has seemingly relied upon the invited-error doctrine to prevent an appellant
from challenging the admission of evidence that he introduced. 6


       6  See, e.g., Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (“[E]rror
regarding improperly admitted evidence is waived if that same evidence is brought in later
by the defendant or by the State without objection.”); Wilkerson v. State, 736 S.W.2d 656, 662
(Tex. Crim. App. 1987) (“It is well established that when the defendant offers the same
testimony as that objected to . . . he may not complain on appeal.”); Adams v. State, 685
S.W.2d 661, 669 (Tex. Crim. App. 1985) (“The record reveals that appellant’s attorney elicited
the statement during questioning of one of the police officers. Appellant introduced the
evidence of which she now complains. No error is presented.”); Lamb v. State, 680 S.W.2d
11, 14 (Tex. Crim. App. 1984) (“The appellant having offered the offending statement, he
cannot now on appeal complain that the State relied upon such evidence.”); Cameron v. State,
530 S.W.2d 841, 843 (Tex. Crim. App. 1975), overruled on other grounds by Boutwell v. State,
719 S.W.2d 164 (Tex. Crim. App. 1985) (“In the instant case, appellant admitted his guilt in
the robbery in Pecos after first objecting to the admission of any evidence of that offense. . . .
Therefore, the appellant is in no position to claim that he was harmed by a ruling of the
court.”); Decker v. State, 717 S.W.2d 903, 905 (Tex. Crim. App. 1983) (“[T]he earlier
confession, the giving of which the appellant says tainted the confession offered by the State,
was offered in evidence before the jury by the appellant and admitted by the court as defense
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                                     No. 17-70019
      Our conclusion that the Court of Criminal Appeals was relying on the
invited-error doctrine is further supported by the case that it cited in support
of its holding that Soliz could not raise his claim on appeal. See Soliz, 432
S.W.3d at 903 (citing Decker v. State, 717 S.W.2d 903, 908 (Tex. Crim. App.
1986)). The Decker case is within a long line of decisions from the Court of
Criminal Appeals that recognize an appellant generally may not challenge the
admission of evidence that he offered. Notably, the court did not cite any
federal law as the basis for its refusal to consider Soliz’s claim. See id. at 902-
03. The court also did not reach the merits of Soliz’s claim. See id. Hence,
“any ambiguity that may have existed in its opinion was only on the question
of precisely what state procedural ground the court relied upon in failing to
reach the merits of [Soliz’s] claim.” See Young v. Herring, 938 F.2d 543, 550
(5th Cir. 1991) (en banc).
      In denying federal habeas relief on Claim 20 because it was procedurally
defaulted, the district court noted that it was not clear from the Court of
Criminal Appeals’ opinion whether the court applied the contemporaneous
objection rule or the invited-error doctrine as the basis for its refusal to review
the merits of Soliz’s claim.       Either rule, the court held, was sufficient to
preclude federal review.
       Soliz contends that the district court erred in concluding that the state
court relied upon a procedural bar because the state court never said that it
was doing so.      According to Soliz, Supreme Court caselaw “requires that
application of the state procedural bar must be uncertain if it is to pretermit



Exhibit Number One. Therefore, the appellant waived his objection to the admission of the
confessions.”); Crawford v. State, 617 S.W.2d 925, 932 (Tex. Crim. App. 1980) (“[T]he
confession was introduced by appellant himself. Any complaints regarding its voluntariness
were thereby waived.”); Morales v. State, 466 S.W.2d 293, 300 (Tex. Crim. App. 1970) (“When
appellant’s counsel introduced his confession, he waived any complaints that he might have
regarding the voluntariness of said confession.”).
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                                  No. 17-70019
federal review.” In support of this contention, Soliz cites a Supreme Court
decision holding that “a procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the last state court
rendering a judgment in the case clearly and expressly states that its judgment
rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989).
      Following Harris, though, the Supreme Court held that the presumption
the state court did not rely on a state procedural bar absent a clear statement
that it was doing so applied only when the decision otherwise “fairly appear[s]
to rest primarily on federal law or [is] interwoven with federal law.” Coleman
v. Thompson, 501 U.S. 722, 735 (1991). Applying Coleman and Harris, we held:
“The key is not the clarity of the state court’s language, or even whether the
state court addressed the merits of the federal claim, but whether the state
court may have based its decision on its understanding of federal law.” Young,
938 F.2d at 553-54. In that case, because the state court decision did “not fairly
appear to rest primarily on federal law,” we could not reach the merits of the
petitioner’s federal claim “absent a showing of cause and prejudice.” Id. at 554.
      As already discussed, the record does not support that the state court
rested its decision based upon federal law. The state court neither cited nor
referred to federal law in rejecting Soliz’s claim, nor did it reach the merits of
the claim. The state court opinion thus “‘fairly appears’ to rest primarily on
state law.” See Coleman, 501 U.S. at 740.
      We have previously held that “[t]he invited-error doctrine qualifies as a
state procedural bar.” Druery v. Thaler, 647 F.3d 535, 545 (5th Cir. 2011).
That doctrine is what the state court seemed to rely upon here. “Because
[Soliz] has neither claimed nor shown ‘cause’ for th[e] default or that a
‘miscarriage of justice’ would result if the default barred federal habeas relief,”
federal habeas relief on Soliz’s claim is barred. See Hogue v. Johnson, 131 F.3d


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                                 No. 17-70019
466, 498 (5th Cir. 1997). The district court committed no error in denying relief
for Claim 20.
      We AFFIRM the district court’s denial of habeas relief for Claim 20 and
DENY a certificate of appealability on any other claim.




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