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

                                                                            FILED
                                                                          March 17, 2008

                                       No. 06-70021                   Charles R. Fulbruge III
                                                                              Clerk

DAVID MARTINEZ

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                   for the Western District of Texas, San Antonio
                            USDC No. SA-03-CA-665-FB


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge.*
       Petitioner David Martinez, convicted of capital murder in Texas and
sentenced to death, requests this Court to issue a Certificate of Appealability
(COA) pursuant to 28 U.S.C. § 2253(c)(2). Martinez contends that his counsel
rendered ineffective assistance and that his death sentence was obtained in
violation of the Fifth and Sixth Amendments. Finding that Martinez has not
made a substantial showing of the denial of a constitutional right, we DENY a
COA.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 06-70021

       I.     FACTUAL AND PROCEDURAL HISTORY1
              A.     The Murders
       Late on the evening of July 10, 1994, 11-year-old Belinda Prado was
watching television on the living room couch of the home she shared with her
mother Carolina and her 14-year-old brother Eric. Eric fell asleep on a mattress
on the floor in the living room while Carolina slept in her bedroom. Later that
night, Martinez, who had been staying with Carolina, and another man whom
Belinda had never seen before came to her home. The other man left after 15-20
minutes, and Belinda saw Martinez go to her mother’s bedroom. Early on the
morning of July 11, 1994, Belinda awoke to the sound of a baseball bat striking
something in the living room. Belinda saw Martinez, who was dressed only in
a pair of boxer shorts, repeatedly strike Eric in the head with a baseball bat.
Belinda saw blood flying as Martinez beat Eric with the bat. When Belinda
asked Martinez “to behave,” he told her to be quiet or he would kill her, too.
Fearful for her life, Belinda asked where her mother was and he replied Carolina
was in the shower. When Belinda looked in the bathroom, however, she did not
see her mother.
       Martinez forced Belinda into Eric’s bedroom at knife-point and tied her to
the bed. Martinez was dressed in a white shirt, a pair of black pants, a leather
vest Belinda recognized as belonging to her uncle, and a pair of boots. Before
leaving the house, he gave Belinda a handwritten note and directed her to take
the note to her grandmother, who lived a short distance down the street.
Martinez’s handwritten note, which was admitted into evidence at trial, read “I
messed up. I'LL Be at the Friends on the EAst side.” Still fearful for her life,
Belinda waited several minutes after Martinez left the house before she took his


       1
          The factual and procedural history section is taken essentially verbatim from the
district court’s meticulously detailed opinion. Martinez v. Dretke, 426 F.Supp.2d 403, 413-26
(W.D. Tex. 2006).

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note to her grandparents’ home. Belinda gave her grandmother the note and
accompanied her grandparents back to her home, where she learned her mother
was dead in her bedroom.
      Carolina Prado’s mother, Rosa Ramirez, testified at trial as follows: (1) she
first met Martinez in June 1994, when Carolina introduced him to her and
informed her mother she and Martinez were going to live together; (2) she gave
Martinez a black tie, one of her other daughters gave him a white shirt, and
Carolina helped him find work at a nearby grocery store; (3) Carolina was
divorced from Eric and Belinda’s father, with whom the two children had stayed
for several weeks prior to date of the murders; (4) around 5:10 a.m. on the
morning of the murders, Martinez telephoned her and informed her Carolina
was tired and did not plan to go to work that day; (5) she had no difficulty
understanding anything Martinez told her during their brief telephone
conversation, and he did not appear to her to have slurred his speech; (6) around
8:30 a.m. the same morning, Belinda rang her door bell and, when she answered
the door, Belinda, who appeared nervous, handed her the note and told her Eric
had a lot of blood on his head; (7) as she and Belinda walked down to Carolina’s
house, Belinda told her Carolina was at work; (8) when they arrived at
Carolina’s home, Belinda directed her to go inside but Belinda refused to enter
the house; (9) she entered the house and walked into the living room, where she
found Eric lying dead with a towel covering his head; (10) when she lifted the
towel, she observed that Eric’s head was “broken,” his brains were “all over the
place,” and there was “lots of blood”; (11) after her husband entered the house
and observed Eric, they walked back to their home where her husband called 911
and then called Carolina’s place of employment; (12) by the time they returned
to Carolina’s home, a police officer had sealed the house and would not allow
them to enter; (13) the officer told her there was a dead woman in the back



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bedroom; (14) she observed drops of blood on the curtains and window of
Carolina’s bedroom; and (15) she never again saw Carolina.
      San Antonio Police Officers who arrived at the scene found Eric lying dead
from obvious head injuries in the living room and Carolina dead from even more
gruesome head injuries in the blood-drenched bedroom. Police officers also
found what appeared to be a bloody baseball bat covered by a towel on a living
room chair.
      An autopsy established Carolina Prado: (1) sustained a large contusion on
her right shoulder and arm, a bruise on the back of her elbow, bruising of the
eyelids secondary to a massive skull fracture, and the right side of her head
caved in due to blunt trauma; (2) suffered multiple fractures in all areas of the
skull, including behind the eye and at the base of the skull; (3) suffered a
massive stellate or multi-rayed laceration on the right side of her head with
multiple loose fragments of skull; (4) lost approximate one-half of her brain
tissue from her cranial cavity due to massive blunt force trauma; and (5) died as
a result of multiple, massive skull fractures and severe underlying brain
injuries.
      An autopsy established Eric Prado: (1) sustained a large contusion in the
right parietal occipital area above and behind the right ear accompanied by a
large laceration due to bony skull fragments and brain matter protruding from
the defect, as well two smaller lacerations just behind the larger one; (2) suffered
a hinge fracture laterally across the base of the brain from ear to ear; (3) was
likely rendered unconscious immediately and died almost immediately after he
was assaulted; (4) received “a tremendous blow” by something heavy; (5) did not
show any sign of defensive injuries; and (6) died as a result of cranial cerebral
injuries, including severe fractures of the skull and severe underlying brain
injuries.



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             B.    Arrest and Confessions
      At approximately 3:30 a.m. on July 13, 1994, San Marcos Police Officers
arrested Martinez on a capital murder warrant at the residence of his
grandmother. Upon his arrest, Martinez repeatedly gave police a fictitious name
even after they discovered his identification in his back pocket and noted the
identifying tattoos on his arm. Immediately upon his arrest, Martinez received
his Miranda warnings and gave a nod to indicate he understood same. Following
his arrest, while police were examining a baseball bat they found in the bedroom
where he had been arrested, Martinez volunteered a comment along the lines
of “that’s not what you’re looking for” or “that’s not it.”
      During the brief drive to the Hays County Law Enforcement Center,
Martinez: (1) asked if he were going to San Antonio that night and, when the
officer driving the vehicle indicated negatively, Martinez volunteered that he
had known there were police officers outside watching the house and that he
could have done something if he had wished to do so; (2) spontaneously inquired
“who ratted on me?” and, when the officer driving the vehicle responded the
matter was in the papers, Martinez sat up straight, appeared to be proud, and
later volunteered “I killed them just like cockroaches”; and (3) spoke English
without difficulty and displayed no slurred speech, smell of alcohol, or other
overt sign of intoxication.
      Much later on the morning of July 13, 1994, a pair of San Antonio Police
homicide detectives traveled to San Marcos to interview Martinez but were
forced to wait several hours while Martinez went before a local magistrate.
While they waited, the two detectives: (1) went to the residence where Martinez
had been arrested, (2) obtained consent from Martinez’s grandmother and uncle
to search the residence, (3) took custody of a backpack his grandmother indicated
belonged to Martinez, (4) took custody of a Dallas Cowboys baseball cap and a
pair of tennis shoes, both of which Belinda testified belonged to her brother Eric,


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and (5) took custody of a shirt and pair of trousers Martinez’s uncle indicated
belonged to Martinez. Inside the backpack, the detectives found a black leather
vest which Belinda testified at trial belonged to one of her uncles.
      The San Antonio homicide detectives returned to the Hays County Law
Enforcement Center and interviewed Martinez. At approximately 12:30 p.m.,
after again receiving his Miranda warnings, Martinez agreed to be interviewed
and signed a waiver of his rights. In his written confession, Martinez stated, in
pertinent part as follows:2
      I want to talk to you about what I remember about the murder of
      Carol Prado and Eric Prado, 231 Obregon, San Antonio, Texas, on
      Monday, July the 11th, 1994.

      I have been dating Carol for about two months. I had drank a
      12-pack of Bud Light beer, a big bottle of Bacardi rum. I got off
      work at Handy Andy at 1:45 a.m., and I walked to Carole’s house.
      I am living with Carole, and when I got home I started drinking. I
      got home about 1:50 a.m. When I got there, Carole was awake. Eric
      was asleep in the living room on a mattress on the floor. Belinda
      was on the couch also in the living room. Belinda was awake. I had
      a friend of mine there but I don’t want to tell you who he is. I
      walked my friend down the street at about 3:00 a.m., and I returned
      a short time later. I went outside and drank more, and then I
      walked down the street and threw the bottle. I went back in the
      house at 5:10 a.m. I was freaking and tripping and I hit Carole for
      no reason. I picked up a baseball bat that I tripped on. It was
      wooden. I hit Carole in the head with the bat. I must have hit her a
      lot to make her pass away. When I came in at 5:10 a.m., she told me
      to call her mom and tell her mom that she was going to stay home
      with the kids and would not be going to work.

      After acknowledging his statement extended to a second page, Martinez
continued his confession as follows:
      After I hit Carole, I went back to the living room and put the bat on
      the side of the couch, and I sat on the couch. Belinda was half


      2
          The confession contains the victim’s name spelled as “Carol” and “Carole.”

                                              6
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      awake and half asleep. Belinda wanted to go see her mother, and I
      told Belinda not to go in the bedroom because Carole was in the
      shower. I didn’t want Belinda to see her mother. I told Belinda to
      lay down and go to sleep. I thought I saw Eric coming at me, so I
      grabbed the bat and hit him in the head. I realized he was still
      laying on the floor. I stood up and hit Eric about four times with the
      same bat. I looked at Eric and said to myself, What the fuck AM I
      doing. I then tied Belinda’s hands in front of her with a tie. I told
      her to go to her grandmother’s house after I left. I tied her hands
      loosely. Belinda asked me what she was supposed to tell her
      grandmother. I then wrote a note that said “I messed up. I’LL be on
      the Friends at the EAst side.” I gave Belinda the note. I then left
      and went to a friend's house on the east side of San Antonio. I told
      him what I had done and I asked my friend to just put a bullet in
      my head. I can't give you my friend’s name. I don’t know why I hit
      Carole and Eric. Carole had told me when I came home that she had
      seen me talking to a lady at Handy Andy but we didn’t argue. I
      understand my rights and I am waiving my rights and I am giving
      this statement because I want to. My statement is true and correct
      and this happened in San Antonio, Bexar County, Texas.

      After making a correction to the draft of his confession, Martinez wrote the
following appendix to his confession in his own handwriting:
      I feel for the actions I took, I'm requesting the only just sentence for
      me is the “Death Penalty.” I took a life of someone who I cared about
      a lot. I feel that I can never bring her back. Please, give me the
      “Death Penalty”!! I'll never forget Carol. The pain swells within my
      heart forever. Carol, wherever you are please forgive me. “I Do Love
      you”!!

            C.     Pretrial
      On October 4, 1994, a Bexar County grand jury indicted Martinez on a
single count of capital murder charging him with having: (1) murdered Carolina
Prado by striking her with a deadly weapon, i.e., a bat, (2) murdered Eric Prado
by striking him with a deadly weapon, i.e., a bat, and (3) committed both
murders during the same criminal transaction.



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         On October 20, 1994, Martinez’s trial counsel filed a motion requesting
that Martinez be evaluated for competence to stand trial as well as for sanity.
In an Order issued October 26, 1994, the trial court granted those requests. On
January 9, 1995, Dr. Julia B. Spears filed separate reports concluding Martinez
was: (1) not insane at the time of his offense and (2) fully competent to stand
trial.
         On October 19, 1995, the state trial court held a pretrial hearing on
Martinez’s motions to suppress his confession and various items of physical
evidence obtained by police during the course of the investigation, including a
backpack of pornographic magazines allegedly belonging to Martinez which had
been discovered by relatives of Carolina Prado in a storage shed located at her
residence. In an ex parte hearing held before the start of the hearing on the
motions to suppress, Martinez’s trial counsel advised the trial court on the
record: (1) Martinez had requested said counsel call Mark Martinez and Tomas
Guadalupe, two residents of the Rio Grande Valley, to testify at the hearing; but
(2) after interviewing those two persons, said counsel was not going to call either
to testify at the hearing because to do so might alert the prosecution to the fact
those persons could furnish inculpatory testimony.
         One of the San Marcos Police officers who assisted in Martinez’s arrest
testified during the hearing as follows: (1) Martinez was given his Miranda
warnings at the time of his arrest; (2) during the short drive to the Hays County
Law Enforcement Center, Martinez volunteered several inculpatory statements;
(3) he observed nothing about Martinez’s appearance or demeanor which
indicated that he was intoxicated at the time of his arrest; and (4) he saw no beer
cans or alcoholic beverage containers inside the home where Martinez was
arrested.
         Another San Marcos Police Officer who participated in Martinez’s arrest
testified: (1) he gave Martinez his Miranda warnings at the time of the arrest;


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(2) Martinez nodded responsively and appeared to understand those rights as he
read them; (3) when other officers discovered a baseball bat in the bedroom,
Martinez spontaneously remarked either “that’s not what you’re looking for” or
“that’s not it”; (4) he did not observe any alcoholic beverage containers in or
around the house where Martinez was arrested; and (5) Martinez gave officers
a false name and persistently insisted he was someone else even after officers
discovered Martinez’s identification card in his pocket and pointed out
identifying tattoos on his arm.
      One of the San Antonio Homicide Detectives who interviewed Martinez
following his arrest testified at the same hearing as follows: (1) while they
waited for Martinez to be taken before a magistrate, he and his colleague went
to the residence where Martinez had been arrested, secured a consent to search
same from Martinez’s grandmother, Sophie Castilleja, and found a backpack
containing a black vest, a tie, digital watch, and white tee shirt; (2) he was aware
of no information indicating Martinez had ever possessed any expectation of
privacy in the residence in question or any of the contents of same; (3) after
Martinez had been taken before a magistrate, he and another detective
interviewed Martinez; (4) during their interview, Martinez displayed no
indications of intoxication; (5) after his colleague read petitioner his Miranda
warnings, Martinez executed a card acknowledging having been read and
understanding those warnings; (6) Martinez then gave the written statement
quoted extensively above; (7) no promises, threats, or others forms of coercion
were directed to induce the confession; and (8) none of the occupants of the
residence where Martinez had been arrested informed him or his partner about
any consumption of alcoholic beverages by petitioner prior to his arrest.
      At the conclusion of the hearing, the state trial court overruled the motions
to suppress various items discovered at both the crime scene and Martinez’s
grandmother’s address in San Marcos, specifically finding Martinez had no


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standing to challenge any seizures made at either location. The trial court also
ruled: (1) Martinez’s written confession was freely and voluntarily given and
therefore, admissible and (2) Martinez’s inculpatory, oral, post-arrest statements
were also admissible.
            D.     Guilt-Innocence Phase of Trial
      In addition to the evidence summarized above, including Martinez’s
written confession and inculpatory, oral statements, the prosecution presented
testimony from a forensic documents examiner establishing the same person
who wrote the final paragraph of Martinez’s handwritten confession had also
written the note Martinez gave to Belinda Prado on the date of the murders.
Defense counsel presented no evidence. After deliberating slightly more than an
hour, the jury returned its verdict finding petitioner guilty of capital murder as
charged in the indictment.
      E.    Punishment-Phase of Trial
            1. Prosecution Evidence
      A police officer from Pharr, Texas, testified regarding his arrest of
Martinez on September 19, 1988, while Martinez was in the course of
burglarizing a convenience store. A Hidalgo County juvenile probation officer
testified Martinez: (1) was charged with six counts of burglary arising from
crimes committed June through September 1988, (2) received a one-year
probated sentence on December 13, 1988, (3) was arrested less than a week later
for another burglary, (4) once threatened the officer’s life, and (5) was committed
to the custody of the Texas Youth Commission (TYC) on January 30, 1989. A
former TYC case manager, who met weekly with Martinez during his
subsequent stay at a TYC-contract facility, testified Martinez: (1) became
enraged, threw his chair, and broke a 50-gallon aquarium in March 1989, when
she denied his request for a furlough to visit his mother, (2) briefly escaped in
June 1989, (3) habitually tried to stare down anyone who would not do what he


                                        10
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wanted, (4) was a “manipulator” who frequently tried to “sweet talk” her but
would try to intimidate her if he did not get what he wanted, (5) had a problem
with authority figures, (6) often talked back to officials at his TYC facility, (7)
had trouble controlling his temper and aggressive impulses, (8) was intelligent,
as demonstrated by his completion of his GED while under TYC supervision, and
(9) was discharged from the TYC in May, 1990.
      A McAllen shoe store employee testified Martinez: (1) entered her store on
the morning of May 30, 1990, (2) waited until a courier left the store, (3) followed
her to the back of the store where he grabbed her around the neck and waist and
held her tightly against him while she screamed and fought unsuccessfully for
her freedom, (4) said he “wanted to be alone” with her and touched her breast
and buttocks, (5) told her to stop yelling and pulled her down to the floor,
injuring her back in the process, (6) finally released her only after she begged
him not to hurt her and convinced him she was pregnant, (7) left the store only
after she promised not to call the police and begged him to leave, and (8)
threatened to return if she called the police. The store clerk also testified she
saw Martinez walking along a city street on July 9, 1990, and identified him as
her assailant when police brought him to her store later that same day. A
McAllen police officer testified: (1) he arrested Martinez on July 9, 1990, (2) the
store clerk identified Martinez as her assailant during a show-up that same
date, and (3) Martinez was subsequently charged with attempted sexual assault.
      A former Hidalgo County adult probation officer testified: (1) Martinez
received a probated 10-year sentence in May 1991, following his conviction for
attempted sexual assault, (2) the conditions of Martinez’s probation included
making financial contributions, reporting weekly, and participating in a weekly
sex offender group program, (3) in early-July, 1991, Martinez stopped reporting
weekly, stopped attending weekly group counseling sessions, and ceased working
or making his required financial contributions, (4) after several months of


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unsuccessful attempts to contact Martinez, he filed a motion to revoke probation
in December 1991, (5) when law enforcement officers went to execute the
warrant for Martinez’s arrest, he fled and was later charged with evading arrest,
(6) Martinez never advised his probation officer he suffered from any drug or
alcohol problems, and (7) Martinez pleaded “true” to the motion to revoke and
was sentenced to serve a 5-year prison term. A McAllen police officer testified:
(1) he assisted in the arrest of Martinez on April 1, 1992, on a motion to revoke
probation, (2) when officers announced their presence at the front door of
Martinez’s residence, he fled out the back door, (3) Martinez then led several
officers on a chase through several backyards, over fences, and through
alleyways, (4) the chase did not terminate until the officer, traveling in a police
vehicle, interrupted Martinez’s attempted flight some three city blocks north and
two and a half blocks east of Martinez’s residence, and (5) he arrested Martinez
for evading arrest and pursuant to the motion-to-revoke warrant.
      A fingerprint expert testified Martinez’s fingerprints matched those on a
pen packet admitted into evidence. A Texas Department of Criminal Justice
parole supervisor testified: (1) Martinez was paroled December 2, 1992, (2) the
conditions of Martinez’s parole included mandatory participation in
psychological sex offender counseling and making three face-to-face reports to
his parole officer each month, (3) a parole revocation was issued September 10,
1993, based on Martinez’s failure to attend sex offender counseling, (4) following
Martinez’s arrest for capital murder, he waived both preliminary and final
revocation hearings and admitted he was guilty of capital murder, and (5) while
the conditions of Martinez’s parole included drug and alcohol counseling,
Martinez never reported to his parole officer that he had ever been under the
influence of either.
      Five Bexar County Adult Detention Center officers testified regarding a
series of incidents in which Martinez violated the rules of that facility or


                                        12
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otherwise engaged in violent misconduct. More specifically, those officers
testified: (1) on November 19, 1994, Martinez cursed and threatened a detention
officer while the officer was escorting him to a visit; (2) on April 14, 1995,
Martinez shouted and kicked a food tray out of the food slot under his cell door,
spilling food across the floor; (3) on May 27, 1995, Martinez disobeyed a verbal
order to stop changing the channel on a television and, when an officer wrote
him up for that rule violation, profanely threatened to harm that officer’s family;
(4) Martinez engaged in a verbal altercation with another inmate over the
television during which Martinez assumed a fighter’s stance and had to be
restrained by detention officers before blows were exchanged between the
inmates; and (5) on or about August 21, 1995, Martinez attempted to assert
“tank boss” status by demanding other inmates pay him with food for the
privilege of using the telephone.
      A Hidalgo County psychologist who had attempted to treat Martinez in a
sex offender program in 1991 testified Martinez: (1) was not a successful
participant in the program because he would not often attend group sessions
and, even when he did, he refused to divulge any information about himself, (2)
showed a lack of progression throughout his life, (3) displayed a defiant refusal
to admit he had a problem, which makes Martinez dangerous, (4) displayed an
extremely poor ability to empathize with others, especially in situations in which
dominance or control is an issue, which also makes Martinez dangerous, (5)
showed no sign of having sustained any neurological injury or brain damage, (6)
tested well above average on one intelligence test, (7) suffers from an antisocial
personality, i.e., Martinez demonstrates a pervasive, non-flexible pattern of
behavior characterized by the disregard for, and violation of, the rights of others,
(8) Martinez’s antisocial personality manifests itself through his persistent
unlawful conduct, deceitfulness, impulsiveness, irritability, aggressiveness,
irresponsibility, and lack of remorse for his misconduct, (9) is not mentally ill,


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(10) displays a powerful sex drive directed toward children, (11) refused to admit
he had sexually assaulted the shoe store clerk even after he had pleaded guilty
to that offense, and (12) poses an obvious danger to society.
      Belinda Prado returned to the stand near the conclusion of the
prosecution’s evidence at the punishment-phase of trial and testified Martinez:
(1) touched her on her breasts and vagina for five-to-ten minutes immediately
after he had beaten Eric to death, (2) forced her into Eric’s bedroom at
knife-point when she told him to stop touching her, (3) tied her hands behind her
to the bed with a necktie, and (4) then wrote the note he directed her to take to
her grandmother.
      Finally, a court bailiff testified: (1) on October 10, 1995, Martinez
demanded to be placed in handcuffs because, otherwise, he was going to “go off”
on his attorney and (2) two days later, Martinez threatened a prosecutor during
a heated exchange before the trial judge.
                   2. Defense Evidence
      The defense presented four witnesses who knew Martinez when he was
growing up, all of whom requested the jury dispense mercy.           A cousin of
Martinez’s mother testified: (1) Martinez’s mother had mental problems, (2)
Martinez’s father died in a fatal shooting in a bar, (3) Martinez was hurt very
deeply by his father's untimely death, (4) before his father’s death, Martinez’s
parents argued frequently, (5) Martinez’s parents did not treat him with love,
and (6) Martinez had always been helpful to her and respectful of her, working
part-time and living and helping her after she underwent surgery.
      Martinez’s former coach during his stay at a TYC residential facility
testified Martinez was very trustworthy and had spoken to children about the
dangers of drugs. The coach’s testified: (1) she met Martinez in 1988, (2) he
stayed in their home one weekend, and (3) he very effectively spoke to her
elementary school students about the dangers of drugs.


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      Martinez then took the stand and: (1) denied he had killed either Carolina
Prado or Eric Prado, (2) denied he had sexually molested Belinda Prado, (3)
denied he had given the written confession admitted into evidence, claiming he
was intoxicated at the time he “gave” his confession and merely wrote what law
enforcement officers told him to write after they threatened to bring additional
charges against him, (4) claimed he never read the confession he admitted he
signed, (5) denied he ever had a drug or alcohol problem, (6) admitted he drank
liquor and smoked marijuana on the night of the murders, (7) claimed he did not
remember what he had meant when he wrote “I messed up” on the note he gave
to Belinda Prado, explaining he only wrote what Belinda told him to write, (8)
stated “I can’t say I'm sorry for killing them because I did not kill them,” (9)
admitted the bag containing adult magazines found at the crime scene belonged
to him, (10) claimed he was innocent of the attempted sexual assault of the shoe
store clerk who had testified at his capital murder trial even though he pleaded
guilty to that charge, explaining he entered his plea solely to get a probated
sentence, (11) admitted he does not like it when people show him disrespect, (12)
admitted he had an altercation in jail with five black inmates while awaiting
trial for capital murder, and (13) admitted he gets bored with jobs and has never
held a job for longer than nine months.
      On October 30, 1995, the jury returned its verdict, finding: (1) beyond a
reasonable doubt there was a probability petitioner “would commit criminal acts
of violence that would constitute a continuing threat to society” and (2) taking
into consideration all of the evidence, including the circumstances of the offense,
Martinez’s character, background, and personal moral culpability, there were
insufficient mitigating circumstances to warrant a sentence of life imprisonment,
rather than a death sentence, be imposed on petitioner.
      Martinez appealed his conviction to the Texas Court of Criminal Appeals.
In an unpublished opinion, the Court affirmed his conviction and sentence.


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Martinez v. State, No. 72,288 (Tex.Crim.App. Nov. 4, 1998), cert. denied, 528 U.S.
825 (1999). On May 6, 1999, Martinez filed an application for state habeas
relief. The state trial court held an evidentiary hearing and subsequently
recommended denying relief. The Court of Criminal Appeals denied relief in an
unpublished order adopting all except two of the trial court’s findings and
conclusions. Ex parte David Martinez, No. 54,794-01 (Tex.Crim.App. July 2,
2003).
      On June 28, 2004, Martinez filed a petition for federal habeas relief in
district court. In a very detailed opinion, the district court conducted an
exhaustive review of Martinez’s claims and denied habeas relief. Martinez v.
Dretke, 426 F.Supp.2d 403 (W.D. Tex. 2006). The court also denied a COA.
Martinez now moves this Court for a COA.
         II.   STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a
petitioner must obtain a COA before he can appeal the district court’s denial of
habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas petitioners.”).
      The COA determination under § 2253(c) requires an overview of the claims
in the habeas petition and a general assessment of their merits. We look to the
district court’s application of AEDPA to petitioner’s constitutional claims and
ask whether that resolution was debatable among jurists of reason. This
threshold inquiry does not require full consideration of the factual or legal bases
adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537
U.S. at 336.
      A COA will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree

                                        16
                                   No. 06-70021

with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327 (citation omitted). “The question is
the debatability of the underlying constitutional claim, not the resolution of that
debate.” Id. at 342. “Indeed, a claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.” Id. at 338. Moreover,
“[b]ecause the present case involves the death penalty, any doubts as to whether
a COA should issue must be resolved in [petitioner’] favor.” Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).
        III.   Ineffective Assistance of Counsel
        To establish ineffective assistance of counsel, Martinez must show (1)
defense counsel’s performance was deficient and (2) this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
must find that trial counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. The
Supreme Court instructs courts to look at the “norms of practice as reflected in
the American Bar Association standards” and to consider “all the circumstances”
of a case. Id. at 688. While “[j]udicial scrutiny of counsel’s performance must be
highly deferential,” Martinez can demonstrate deficient performance if he shows
“that    counsel’s   representation    fell   below   an   objective   standard   of
reasonableness.” Id. at 688-89. However, “[t]here is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.’” United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting
Strickland, 466 U.S. at 689).         Strickland’s “prejudice” prong requires a
reasonable probability that, but for the deficient performance of his trial counsel,
the outcome of his capital murder trial would have been different. Id. at 694.
               A.    Hearing to Suppress Statements

                                         17
                                         No. 06-70021

          Martinez contends that counsel rendered ineffective assistance by failing
to call him as a witness during the pretrial hearing on the motion to suppress his
statements.3 Counsel had filed a motion to suppress the confessions, arguing
that they were involuntary because Martinez was intoxicated.                     During the
hearing on Martinez’s motion to suppress, two of the arresting officers testified.
Officer Derrickson testified that Martinez did not smell of alcohol. Officer
Caldwell testified that he did not smell marijuana or see any liquor bottles or
beer at the house where Martinez was arrested. The officers testified that
Martinez indicated that he understood his Miranda4 rights. The trial court
subsequently denied the motion to suppress, finding that “the statement was
made freely, voluntarily, made without any compulsion or persuasion.” The
confessions were admitted against Martinez at trial.
          During his state writ proceedings, Martinez raised the instant claim, and
the court held an evidentiary hearing. On cross-examination by the State,
Martinez testified that he was in an “intoxicated state” when he was arrested.
Martinez also testified that because he was intoxicated, he “was not cognizant
of what [he] was writing” in his statements. The state habeas court denied
relief.
          In Colorado v. Connelly, the Supreme Court explained that “a defendant’s
mental condition, by itself and apart from its relation to official coercion” is not
determinative of whether the statement is voluntary. 479 U.S. 157, 164 (1986).
The Court held that “coercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning of the Due
Process Clause of the Fourteenth Amendment.” Id. at 167; accord Perry v.

          3
           In his state writ proceedings and in his federal habeas petition, Martinez also
asserted that counsel rendered ineffective assistance by failing to call two other witnesses in
support of his claim of intoxication. Martinez does not make this assertion in his motion for
a COA.
          4
              Miranda v. Arizona, 384 U.S. 436 (1966).

                                               18
                                  No. 06-70021

State, 158 S.W.3d 438, 446 (Tex. Crim. App. 2004) (explaining that “evidence of
appellant’s intoxication and injury does not raise any constitutional
voluntariness issues because this evidence does not involve any police coercion
or other official over-reaching”). Additionally, in United States v. Garcia Abrego,
the defendant argued that the injections of valium he received while in the
custody of Mexican officials, “coupled with the solicitousness of U.S. law
enforcement officials, rendered his custodial statement involuntary.” 141 F.3d
142, 170 (5th Cir. 1998). The district court found that the drugs had not
impaired the defendant’s mental capacity. Id. More importantly, this Court
explained that the defendant had failed to demonstrate overreaching on the part
of law enforcement, which “is a prerequisite to a determination that a confession
is involuntary.” Id. Accordingly, we affirmed the district court’s finding that
his statement was admissible.
      Here, during cross-examination at the state writ evidentiary hearing, the
State’s attorney inquired whether the police officer had “threaten[ed] you, in any
fashion, to get you to sign this document?” Martinez responded: “Quite the
contrary.” Martinez explained that he had not been threatened and that the
officer had “tried to sugar-coat it,” by offering to attempt to have an out-of-state
charge “dropped.”
      We will assume arguendo that counsel’s failure to call Martinez to testify
during the suppression hearing constituted deficient performance. With respect
to the prejudice prong, even assuming the trial judge would have credited
Martinez’s testimony that he was intoxicated, Martinez fails to show any
overreaching or coercive treatment by the police. Indeed, he admitted that he
was not threatened. The record is devoid of any evidence even suggesting
overreaching on the part of law enforcement. Thus, there is no showing that his
statements were involuntary and would have been suppressed but for counsel’s
deficient performance. Under these circumstances, Martinez has failed to make

                                        19
                                  No. 06-70021

a substantial showing that counsel rendered ineffective assistance with respect
to this claim.
            B.      Hearing to Suppress Physical Evidence
      Martinez next contends that counsel rendered ineffective assistance by
failing to demonstrate that he had standing to contest the improper seizure of
physical evidence from the residences of his grandmother and Carolina Prado.
At a hearing on the motion to suppress, the evidence demonstrated that the
police obtained consent to search from his grandmother, and she directed the
officers to a backpack and a closed paper bag. The backpack and bag contained
a black leather vest, a t-shirt, a tie, and a digital watch. Also, Carolina Prado’s
sister, Rosemary Ramirez, testified that after the murders she had returned to
her sister’s home and inside a shed discovered a gym bag, which she brought to
the police. The police opened this bag and found “adult” magazines.
                    1.   Evidence from Grandmother’s Residence
      On direct appeal, Martinez argued that his Fourth Amendment rights had
been violated by the above described warrantless searches. With respect to the
evidence obtained from his grandmother’s house, the State conceded, and the
Texas Court of Criminal Appeals found, that there were no exigent
circumstances allowing the police to search the backpack and bag without a
warrant.    However, the Court held that “there is no possibility that the
erroneously admitted clothing” moved the jury from a state of nonpersuasion to
one of persuasion. The Court thus held that the error was harmless beyond a
reasonable doubt.
      In his motion for COA, Martinez asserts that counsel erred in failing to
call Martinez as a witness at the suppression hearing and thus he “was not
afforded an opportunity to explain the privacy interests he enjoyed at either
location where his property was found, or to assert his standing in his personal
property.” We note that in his motion he does not provide what his testimony


                                        20
                                  No. 06-70021

would have been at the hearing. Nonetheless, even assuming arguendo that
counsel rendered ineffective assistance by failing to call Martinez as a witness,
we are convinced that he cannot make a substantial showing that he was
prejudiced.
      Martinez contends that clothing found at his grandmother’s house served
to “bolster” the testimony of Belinda Prado. Martinez does not explain what or
how it bolsters her testimony. In any event, Belinda did testify that the vest
belonged to her uncle. She also testified that Martinez was wearing the vest
when he left her house that morning after the murders. The fact that the
clothing recovered matched Belinda’s description of Martinez’s clothing the
morning of the murders does offer some corroboration of her testimony.
However, such corroboration is of no moment because that testimony is with
respect to undisputed facts. Martinez has admitted that both he and Belinda
were at the scene of the crime.         Thus, any corroboration of Belinda’s
identification of Martinez on the morning of the murders is not prejudicial.
Martinez has failed to make a substantial showing on the prejudice prong of this
particular claim of ineffective assistance of counsel.
                  2.     Evidence from the Prado Residence
      As previously set forth, Carolina Prado’s sister, Rosemary Ramirez,
discovered a gym bag in a storage shed at the Prado residence.             After
determining that the bag belonged to Martinez, Ramirez turned the bag over to
the police. The bag contained pornographic magazines. The actual magazines
were not admitted into evidence at either phase of the trial. However, during
the punishment phase, Martinez admitted on cross-examination that the
magazines belonged to him.
      On direct appeal, Martinez argued that his Fourth Amendment rights
were violated by the denial of the motion to suppress the magazines. The Court
of Criminal Appeals found that because Martinez had abandoned that property,


                                       21
                                   No. 06-70021

he had no standing to challenge the search and seizure of the magazines. The
evidence shows that Martinez left Prado’s residence in the early morning hours
on July 11, and was arrested while staying at his grandmother’s two days later.
Martinez points to no evidence to indicate that he intended to retrieve his bag.
Under these circumstances, Martinez has not shown that he did not abandon the
bag. See United States v. Piaget, 915 F.2d 138, 140 (5th Cir. 1990) (“Once a bag
has been abandoned, and the abandonment is not a product of improper police
conduct, the defendant cannot challenge the subsequent search of the bag.”).
Thus, it does not appear that counsel’s performance was deficient.
      Assuming arguendo that Martinez made a substantial showing on the first
Strickland prong, he cannot make a substantial showing of prejudice. As stated,
Martinez’s admission that the magazines were his occurred during the
punishment phase. To demonstrate prejudice, Martinez points to: (1) the State
psychologist’s reference to Martinez’s interest in pornography in the context of
making a “future dangerousness” determination; and (2) the prosecutor’s
statements during closing argument that Martinez was a sexual deviate who
collects pornography. Although we acknowledge that the evidence of Martinez’s
ownership of pornographic magazines could be viewed as aggravating by the
jury, we are persuaded that such evidence does not rise to a substantial showing
of prejudice in view of all the evidence, including: (1) Martinez’s prior guilty plea
to attempted sexual assault; (2) the assault victim’s testimony regarding the
specifics of the attempted sexual assault; (3) eleven year-old Belinda’s testimony
that Martinez sexually molested her after the murders; (4) Martinez’s prior
burglary convictions; and (5) Martinez’s unremorseful testimony during the
punishment phase.
             C.    Handwriting Exemplars
      Martinez argues that counsel rendered ineffective assistance by failing to
move to suppress the handwriting exemplars he was required to provide while

                                         22
                                 No. 06-70021

in custody. A forensic document examiner testified that he compared Martinez’s
handwriting exemplars with the note that read: “I messed up. I’LL Be At the
Friends on the EAST Side,” and concluded that Martinez wrote the note.
      It is undisputed that Martinez was in custody and that the police officer
told him that he had to provide handwriting exemplars. It is also undisputed
that counsel was not present. Martinez contends that counsel should have
moved to suppress the handwriting exemplars based on a violation of his Fifth
Amendment right against self-incrimination and a violation of his Sixth
Amendment right to counsel.
      In Gilbert v. California, the petitioner argued that the FBI requiring him
to provide a handwriting exemplar without the presence of counsel violated his
Fifth Amendment right against self-incrimination and Sixth Amendment right
to counsel. 388 U.S. 263, 266 (1967). The Supreme Court held that because the
handwriting exemplar was not “testimonial or communicative,” the Fifth
Amendment privilege against self-incrimination was not violated. Id. at 266-67.
The Supreme Court also rejected his Sixth Amendment claim, explaining that
providing such handwriting exemplars was not a “critical” stage of the
proceedings entitling him to the presence of counsel. Id. at 266-68. Supreme
Court precedent thus precludes Martinez from making a substantial showing of
the denial of a federal right.




            D.     Prosecutor’s Opening Statement
      Martinez argues that counsel rendered ineffective assistance by failing to
object to the prosecutor’s characterization of the instant offense as “mass
murder” in his opening statement. In relevant part, the prosecutor stated:



                                      23
                                  No. 06-70021

            Now, you have heard the indictment. You have heard the
      allegations. Simply put, as we stated to each and every one of you
      during Voir Dire, the State is alleging that this Defendant
      committed mass murder.

             The State will prove to you that the defendant viciously killed
      his girlfriend of approximately three to five weeks, Carolina Prado,
      the 39-year-old mother of two, and that after doing that, he went
      into another room and that he killed her son, a 14-year-old boy
      named Eric Prado.

           But that wasn’t all that he did. He killed Eric in front of her
      daughter, a ten-year-old girl, Belinda Prado. And Belinda saw it
      happen.

During the state habeas hearing, defense counsel conceded that he should have
objected to the term “mass murder” as inflammatory because it implies more
than two individuals were killed. We, however, are not bound by his apparent
concession of deficient performance. Indeed, as the federal district court noted,
the Sixth Circuit has repeatedly characterized death penalty statutes that
authorize capital punishment for the murder of two or more persons as “mass
murder” provisions. Martinez, 426 F.Supp.2d at 465 (citing e.g., Coleman v.
Mitchell, 268 F.3d 417, 443 (6th Cir. 2001)). Moreover, in the instant case,
immediately after referring to the instant offense as “mass murder,” the
prosecutor stated that the evidence would show that Martinez killed Carolina
and Eric.      He never contended that Martinez had killed more than two
individuals.
      Nonetheless, even assuming arguendo that counsel’s failure to object to the
term “mass murder” constituted deficient performance, Martinez cannot show
prejudice. Belinda Prado, an eyewitness, testified that she saw Martinez beat
her sleeping brother to death with a baseball bat. Martinez signed a confession
admitting that he killed both Carolina and Eric Prado.          Upon his arrest,
Martinez bragged that he had “killed them just like cockroaches.” In light of the

                                       24
                                     No. 06-70021

overwhelming evidence that Martinez committed these gruesome murders, it is
not debatable among jurists of reason that the state court reasonably concluded
he cannot demonstrate that referring to the offense as “mass murder” prejudiced
him.
             E.     Lay Testimony
       Martinez asserts that counsel rendered ineffective assistance by failing to
object to the testimony of two police officers that there was blood on the bat and
on Martinez’s boxer shorts, which were recovered at the time of his arrest.
Martinez asserts that whether the substance was blood should have been the
subject of expert testimony.
       With respect to whether counsel’s failure to object constituted deficient
performance, Martinez cites no cases to show that had counsel made such an
objection, the testimony would have been excluded.5 We note that there is Texas
precedent indicating one does not necessarily have to be an expert to testify
regarding blood at a crime scene. McCray v. State, 873 S.W.2d 126, 127-28
(Tex.App.-Beaumont 1994, no pet.) (admission of testimony of police detective
that, based on a photograph of blood splatters on wall, it appeared victim was
“trapped” behind door of her bedroom during her fatal encounter with defendant
was not abuse of discretion, regardless of whether witness was considered lay
witness or expert). See also AMJUR HOMICIDE § 407, Presence of blood;
bodily fluids (“Nonexperts may testify to finding blood near the place where the
body of the deceased was found, and bloodstains on a car, where the blood was
in large quantities and the stains recent.”) (citations omitted). Accordingly, we
do not believe that Martinez has made a substantial showing that counsel’s
failure to object to the testimony constituted deficient performance.

       5
          Martinez does cite William G. Eckert, M.D. & Stuart H. James, Interpretation of
Bloodstain Evidence At Crime Scenes. He states that it is a source used by the San Antonio
Police Department. Martinez fails to carry his burden of showing that Texas law would have
excluded the complained of testimony.

                                           25
                                       No. 06-70021

       Assuming arguendo counsel’s failure to object constituted deficient
performance, Martinez fails to make a sufficient showing with respect to the
prejudice prong. According to Martinez’s brief, the bat and other physical
exhibits are available. He has offered no evidence to show that the substance
was not blood.6 In view of the overwhelming evidence of his guilt, Martinez has
not made a substantial showing that, but for counsel’s failure to have the
testimony excluded, the outcome of his capital murder trial would have been
different. Martinez fails to make a substantial showing of the denial of a
constitutional right.
              F.     Jury Instruction on Lesser Included Offense
       Martinez contends that counsel rendered ineffective assistance by failing
to request a jury charge on the lesser included offense of murder. Because
Martinez has failed to demonstrate that he would have been entitled to such an
instruction, he cannot make a substantial showing with respect to the claim of
ineffective assistance of counsel.
       The Supreme Court has explained that “when the evidence unquestionably
establishes that the defendant is guilty of a serious, violent offense-but leaves
some doubt with respect to an element that would justify conviction of a capital
offense,” failing to provide a jury with the option of convicting on a lesser
included offense would almost inexorably increase the risk of an unjustified
conviction. Beck v. Alabama, 447 U.S. 625, 637 (1980). This Court has held
that a defendant is entitled to the lesser included charge “if the jury could
rationally acquit the defendant on the capital crime and convict on the non-




       6
         We note that the state court record contains the report of Dr. Spears, who conducted
competency and sanity evaluations of Martinez. During the clinical interview, Martinez
reported to Dr. Spears that he was intoxicated at the time of the crime and did not recall the
offense. Martinez also reported that he awoke to discover blood on his shorts and decided to
leave.

                                             26
                                  No. 06-70021

capital crime.” Aguilar v. Dretke, 428 F.3d 526, 531 (5th Cir. 2005) (citation
omitted).
      In his motion for COA, Martinez cursorily notes that there was another
male present at the house on the night of the murders. Martinez also points to
the following closing argument by defense counsel that the evidence suggests
there were two killers.
            There is some aspect of the case that the State police maybe
      could have done a better job. Asking about the voided footprints. If
      you stand over a person and you hit them with a bat with all that –
      what our medical expert called tremendous force, the blood is going
      to go up, it’s going to come down, it’s going to fall on your shoes.
      When you step away, there will be a shoe print on the carpet that’s
      a void. There’s no blood in that spot where the foot is. The State
      didn’t bother -- The one footprint that we did have in the case, the
      bloody footprint on the sheet, didn’t bother to bring to you the size.

             I want you to take that circumstance and connect it with the
      circumstances of what Dr. Bux [the state medical examiner] said.
      The injury that was done to Carolina Prado’s head was done with
      much more force than was done to Eric Prado’s head, suggesting
      perhaps that there were two assailants; one administering this kind
      of force and another one administering this kind of force.

             Well, those two facts together would have been helpful to the
      jury as fact finders. How big was that footprint? Or, oh, no, that
      was just a policeman. When they were checking out the scene he
      had to step on the blood and so when he stepped on the sheet, that
      was a policeman’s footprint. We don’t know that, nor do we know
      that it fits the Defendant. That’s a dangling piece of evidence in the
      case that might cause some of you to have reasonable doubt.

      In his closing argument, defense counsel was apparently attempting to
create reasonable doubt regarding whether Martinez had also killed Carolina.
Counsel referred to the testimony of Dr. Bux, the medical examiner, who
testified that although the injuries would be consistent with the proposition that
more force was used when hitting Carolina, he was unable to make that


                                       27
                                       No. 06-70021

determination.7 Although the jury could have rationally concluded that more
force was used on Carolina, that does not provide evidence such that a rational
jury would find that there were two different killers.
      We have read the trial record and are persuaded that the evidence would
not allow a rational jury to find that Martinez killed Eric, but not Carolina. On
the night of the murders, Belinda Prado testified that Martinez came home with
a friend. After fifteen or twenty minutes, Martinez’s friend left the house, and
Belinda heard the gate to the chain link fence around the yard shut. She saw
Martinez enter her mother’s bedroom and shut the door. Belinda fell asleep
watching television and awoke to the gruesome spectacle of Martinez beating
her brother to death with a baseball bat. Martinez threatened to kill her when
she protested. When she asked where her mother was, Martinez indicated
Carolina was in the shower. Belinda looked for her mother but could not find
her. At knifepoint, Martinez tied Belinda to the bed. Martinez gave her a note
that read: “I messed up. I’LL Be At the Friends on the EAST side.” Martinez
then left the house. She never saw her mother again. Additionally, Martinez’s
written confession, wherein he admits the deadly assaults with the bat on both
Carolina and Eric, provides that his friend left the house prior to the murders.
      Again, we are persuaded that the evidence would not permit a rational
jury to find that Martinez killed Eric, but not Carolina. Martinez therefore was
not entitled to a jury instruction on the lesser included offense of murder.
Because     Martinez      has    not     shown    that    he    was     entitled    to   a
lesser-included-offense instruction, he fails to make a substantial showing that


      7
          During cross-examination of Dr. Bux, defense counsel inquired whether he had “an
opinion that the force used on the trauma to Carolina Prado was more than the force used on
that of Eric Prado?” Dr. Bux responded “I can’t tell, except to note that she seems to have
much more massive collapse of her skull.” Defense counsel then asked whether the injuries
would be “consistent with the proposition that more force was used on Carolina Prado than
Eric Prado . . . .?” Dr. Bux replied that it would be consistent.


                                            28
                                  No. 06-70021

counsel was ineffective for failing to request such an instruction. See Wilson v.
Cockrell, 70 F. App’x 219, 228 (5th Cir. July 17, 2003) (explaining that because
petitioner “cannot show that he was entitled to a lesser-included-offense
instruction, he fails to demonstrate that counsel was ineffective for failing to
request such an instruction”).
            G.    Prosecutor’s Closing Argument
      Martinez argues that counsel rendered ineffective assistance by failing to
object to the State’s closing argument. Martinez contends that the prosecutor’s
following remarks constituted an improper comment on his failure to testify:
             I want you to understand that the Defendant’s failure to
      testify is absolutely no evidence. You are not to take that into
      consideration for any purpose. Whoever amongst you is chosen to
      be the presiding juror, the foreman, that’s your job, to make sure
      that any reference to that is quelled; is stopped. It doesn’t make any
      difference. It can’t be in his favor; it can’t be held against him.
      Please don’t refer to that in any fashion. That is the law. Your job
      is to follow the law and render a true verdict.

      To determine whether a prosecutor’s remarks constitute a comment on a
defendant’s failure to testify, this Court looks to: “(1) whether the prosecutor’s
manifest intent was to comment on the defendant’s silence or (2) whether the
character of the remark was such that the jury would naturally and necessarily
construe it as a comment on the defendant’s silence.” United States v. Jones, 648
F.2d 215, 218 (5th Cir. Unit B 1981) (per curiam).
      With respect to the first question, “the prosecutor’s intent must be
‘manifest’; in other words, the test is not met ‘if some other explanation for his
remark is equally plausible.’” United States v. Collins, 972 F.2d 1385, 1406 (5th
Cir. 1992) (quoting United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir.
1977)). “As to the second, ‘the question is not whether the jury possibly or even
probably would view the challenged remark in this manner, but whether the



                                       29
                                       No. 06-70021

jury necessarily would have done so.’” Id. (quoting United States v. Carrodeguas,
747 F.2d 1390, 1395 (11th Cir.1984)) (emphasis in original).
      In the instant case, both the state habeas court and the federal district
court concluded that these remarks were a restatement of the trial court’s proper
guilt-innocence phase instruction to disregard for any purpose Martinez’s
silence.8 Under Texas law, a prosecutor’s “mere reading of the charge of the
court [does] not constitute an allusion or reference to the failure of appellant to
testify.” Meadow v. State, 42 S.W.2d 785, 786 (Tex. Crim. App. 1931) (emphasis
added). In his motion for COA, Martinez points to no other remarks that would
indicate it was the prosecutor’s manifest intent to comment on Martinez’s
silence. Further, the prosecutor’s statement regarding the instruction was an
isolated reference and not repeated. Most importantly, we do not believe that
the jury would necessarily have viewed the prosecutor’s remarks as a comment
on Martinez’s failure to testify. Thus, because there was no basis for objection,
Martinez cannot show that counsel’s performance was deficient. Johnson v.
Cockrell, 306 F.3d 249, 255 (5th Cir. 2002). Martinez has failed to make a
substantial showing of ineffective assistance with respect to this claim.


              H.     Evidence of Temporary Insanity from Voluntary Intoxication
      Martinez contends that counsel rendered ineffective assistance by failing
to develop and present mitigating evidence of his temporary insanity due to
voluntary intoxication at the time of the offense.

      8
          The court instructed the jury as follows:

              Our law provides a defendant may testify in his own behalf if he elects
      so to do. This, however, is a right accorded a defendant; and, in the event he
      elects not to testify, that fact cannot be taken as a circumstance against him.
              In this case, the defendant has elected not to testify; and you are
      instructed that you cannot and must not refer or allude to that face throughout
      your deliberations or take it into consideration for any purpose whatsoever as
      a circumstance against him.

                                             30
                                 No. 06-70021

      Under Texas law, voluntary intoxication does not constitute a defense to
a crime. Tex. Penal Code § 8.04(a). However, “[e]vidence of temporary insanity
caused by intoxication may be introduced by th actor in mitigation of the penalty
attached to the offense for which he is being tried.” Tex. Penal Code § 8.04(b).
      During the punishment phase of his trial, Martinez denied committing the
murders. When questioned about his confession to the murders, he testified that
the police had told him what to write. During the evidentiary hearing conducted
by the state habeas court, Martinez testified that he did not want counsel to
present an insanity defense because he was not insane. He further testified that
he did not try to help counsel pursue an insanity defense.
      The record makes abundantly clear that Martinez denied committing the
murders and would not cooperate with counsel regarding proving his insanity
at the time of the offense. In other words, the record demonstrates that counsel
cannot be blamed for Martinez’s failure to testify that he was so intoxicated
during the murders he was temporarily insane. Nonetheless, Martinez points
to the records of Dr. Spears, who interviewed him and also performed a battery
of psychological tests on him. He asserts that those records indicate that he was
highly intoxicated at the time of the murders. However, as the district court
noted, during the state habeas hearing, Martinez did not inquire of defense
counsel why he did not call Dr. Spears to testify at the punishment phase.
Moreover, in light of Martinez’s refusal to testify regarding his state of
intoxication while he committed the murders, he has not shown that it is
debatable among jurists of reason whether counsel’s decision not to put on more
evidence of intoxication constituted deficient performance.
      Finally, assuming arguendo that failing to put on more evidence of
intoxication was deficient performance, Martinez has not made a substantial
showing of prejudice. As stated above, during the punishment phase Martinez
testified emphatically that he did not commit the murders. We are hard pressed


                                       31
                                     No. 06-70021

to envision how more evidence of Martinez’s intoxication would have swayed the
jury in light of his unremorseful testimony.
               I.    Jury Instruction on Voluntary Intoxication
         Martinez next contends that counsel’s failure to request a jury instruction
on voluntary intoxication at the punishment phase constitutes ineffective
assistance of counsel. For the same reasons that we concluded Martinez failed
to make a substantial showing of ineffective assistance based on counsel’s failure
to present evidence of his temporary insanity due to voluntary intoxication, his
claim that counsel’s failure to request an instruction on voluntary intoxication
fails.
               J.    Mitigating Evidence
         Martinez contends that counsel’s failure to develop and present additional
mitigating evidence at the punishment phase constitutes ineffective assistance.
More specifically, Martinez asserts that counsel should have called Dr. Spears
to testify that: Martinez was only 21 at the time of the murders; Martinez’s
father used cocaine and marijuana and was physically abusive to his mother and
older sister; his father served time in prison and was shot to death at age 48; his
mother suffered from brain tumors and mental illness during his childhood; his
mother left his father when he was six and he essentially “raised himself.”
         Martinez has not made a substantial showing of deficient performance
regarding presentation of mitigating evidence at the punishment phase because,
as set forth below, most of the above evidence was presented through other
witnesses.9     In any event, assuming arguendo counsel’s performance was
deficient, Martinez has not made a substantial showing of prejudice.



         9
           We note that, during the state writ hearing, defense counsel testified that his
recollection was that Martinez’s family was unwilling to testify. Additionally, Martinez
admitted that he would not cooperate with counsel and that calling family members would be
senseless.

                                           32
                                  No. 06-70021

      During the punishment phase, counsel called Rosemary Vargas. She
testified that her mother had “taken care of [Martinez] off and on as [she] was
growing up.” She further testified that Martinez was homeless and had “family
problems” with his mom. His mother, who was “not well,” abandoned him.
Vargas testified that she felt “very close to” Martinez and she trusted him.
Although he wasn’t a relative, she loved him like one. She never had any
complaints about Martinez from her two young sons. Vargas asked the jury to
be merciful to Martinez.
      Defense counsel also called Vargas’s mother, Cecilia Flores, to testify.
Flores testified that Martinez called her his “aunt.” Flores further testified that
Martinez’s mother “has mental problems.” Flores took Martinez into her home
because she was concerned regarding the lack of care he was receiving.
Martinez’s parents “were having problems.” Martinez was deeply hurt when his
father was shot at a bar. When Flores had surgery, Martinez “was there for
[her]. He would help [her] with [her] son and [her] grandsons. He was very
lovable to them.” Flores also asked for mercy for Martinez based on “his abusive
life. He was not treated with love by [his] father and mother like he should have
been.”
      Defense counsel also called Roy Lopez as a witness. In 1988, Lopez was
working in the state juvenile system and met Martinez. Lopez was a counselor-
coach, and Martinez was assigned as his student for about eight months. Lopez
took Martinez to the Special Olympics. Martinez was one of Lopez’s leading
students and, as a guest speaker, would give speeches regarding drug awareness
at various elementary and junior high schools. Lopez also asked the jury to
show mercy.
      Defense counsel next called Lopez’s wife, Maria Lopez. Maria testified
that she was a teacher and met Martinez through her husband.                Maria
remembered taking Martinez to her class and having him “share his life and to


                                        33
                                 No. 06-70021

share also what had happened to him.” She believed he helped the younger
students. Martinez stayed at their home over the weekend and was “very
supportive, very cooperative.” She, too, asked the jury to “be merciful” in
deciding whether Martinez received the death penalty.
      Finally, defense counsel called Martinez, who testified that he was 23
years old and born on May 9, 1972. Martinez testified that his mother left his
father when he was five years old. Thereafter, his father was not involved in his
life. When his mother was hospitalized because of her brain tumors, Flores
“helped” him. He went “back and forth” between homes when his “dad passed
away.”
      Similarly, in Tucker v. Johnson, the petitioner contended that counsel
rendered ineffective assistance by failing to discover and present evidence at
punishment that he suffered from brain impairment, was severely sexually and
physically abused as a child and addicted to cocaine. 242 F.3d 617, 622 (5th Cir.
2001).   However, counsel had presented evidence showing that the petitioner
was “emotionally abused and neglected as a child and that he had a problem
with illegal drugs.” Id. at 623. As in the instant case, Tucker’s argument
essentially was that “counsel should have put on a stronger case in mitigation
of the death penalty.” Id. at 622. Although recognizing the relevance of the
newly proffered evidence to the jury’s determination of moral culpability at the
time he committed the murder, we were not convinced that there was a
reasonable probability of a different outcome had the evidence been presented.
Id. at 624.
      In the case at bar, as previously indicated, although defense counsel did
not call Dr. Spears as a witness, counsel did elicit most of the mitigating
evidence that Martinez now asserts should have been presented. As in Tucker,
a reading of Martinez’s record demonstrates that defense counsel did present the
jury with evidence that he “was raised in an environment of rejection and

                                       34
                                  No. 06-70021

neglect.” Id. at 623. Additionally, although we are mindful that such a prejudice
inquiry is difficult, the newly proffered evidence in Tucker (petitioner suffered
from severe physical and sexual abuse and brain impairment) appears stronger.
The evidence not presented here was that Martinez’s father had been in prison,
used drugs, and was abusive to Martinez’s mother and sister, but not to
Martinez. Thus, in light of the evidence already presented to the jury, we are
unpersuaded that Martinez has made a substantial showing that there is a
reasonable probability that, had additional evidence of his troubled life been
presented, the outcome of the sentencing hearing would have been different.
            K.     Cross-Examination
      Martinez contends that counsel rendered ineffective assistance by failing
to object to the prosecutor’s cross-examination of him regarding statements he
had made during their heated exchange at a pretrial hearing. We understand
Martinez to contend that counsel should have made a Fifth Amendment
objection to the prosecutor’s questions. However, as discussed in Section IV.A.
infra, Martinez has not shown a Fifth Amendment violation. Thus, he has not
shown that counsel’s lack of objection on this basis constituted deficient
performance.
      Assuming arguendo deficient performance, Martinez must make a showing
of prejudice due to the cross-examination. During the complained of cross-
examination, Martinez admitted that the prosecutor had provoked him at the
pretrial hearing by stating that “[w]e’re definitely going to kill you the right
way.” Although the cross-examination provided the jury evidence that Martinez
could be provoked and spar with the prosecutor, it only provided evidence of
sparring that did not culminate in violence. Such evidence pales in comparison
to the other evidence of his future dangerousness, especially the brutality of this
double homicide. Simply put, we are not persuaded that but for Martinez’s



                                        35
                                       No. 06-70021

responses to the prosecutor’s cross-examination there is a reasonable probability
of a different outcome.
              L.     Preservation of Issues for Appeal
       Martinez contends that counsel failed to preserve issues for appellate
review. Martinez points to certain issues the Court of Criminal Appeals ruled
were not preserved on direct appeal. Assuming counsel’s failure to preserve
issues constituted deficient performance, Martinez must show that, but for the
deficient performance, he suffered Strickland prejudice—i.e., a reasonable
probability that the outcome of the appeal would have been different. See
Amador v. Quarterman, 458 F.3d 397, (5th Cir. 2006). However, Martinez does
not even attempt to show prejudice; indeed, he expressly admits that he
cannot.10 Martinez has failed to make a substantial showing with regard to his
claim of ineffective assistance of appellate counsel.
              M.     Constructive Denial of Counsel
       Martinez also argues that, viewing counsel’s errors “in their totality,”
counsel failed to subject the State’s case to adversarial testing. We understand
Martinez to be raising a denial of counsel claim. “‘A constructive denial of
counsel occurs in only a very narrow spectrum of cases where the circumstances
leading to counsel’s ineffectiveness are so egregious that the defendant was in
effect denied any meaningful assistance at all.’” United States v. Griffin, 324
F.3d 330, 364 (5th Cir. 2003) (quoting Gochicoa v. Johnson, 238 F.3d 278, 284
(5th Cir. 2000)). We need not tarry long with this claim. Prior to trial, counsel
utilized an investigator, attempted to present an insanity defense but was
rebuffed by Martinez, moved to suppress the confessions and other evidence.
Counsel cross-examined witnesses and made numerous objections. Martinez

       10
          Some of the issues that were not preserved Martinez has raised as instances of
ineffective assistance of trial counsel, and we have found no prejudice. “When we do not find
prejudice from the trial error, by extension, we cannot find prejudice from an appellate error
predicated on the same issue.” Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir. 1999).

                                             36
                                    No. 06-70021

falls woefully short of making a substantial showing with respect to a
constructive denial of counsel claim.
      IV.     Unconstitutional Death Sentence
              A.     Fifth Amendment violation
      Martinez contends that his death sentence was obtained in violation of the
Fifth Amendment.        During the punishment phase of his trial, the State
introduced evidence of a heated exchange between Martinez and the prosecutor
that had occurred during a pretrial hearing. He asserts that the exchange he
had with the prosecutor amounted to a custodial interrogation. Therefore, he
argues, his Fifth Amendment rights were violated because he was not advised
of his Miranda11 rights prior to the interrogation.
      This Court has previously rejected a claim that Miranda warnings are
required when a witness is questioned in open court.            United States v.
Armstrong, 476 F.2d 313, 315 (5th Cir. 1973). In Armstrong, a witness had
refused to testify before the grand jury. Id. Subsequently, the court held a
hearing and found her in contempt for refusing to testify. On appeal, she argued
that the district court should have appraised her of her Miranda rights prior to
questioning her at the hearing. Id. at 315. This Court explained that “her
reliance on Miranda is totally inapposite,” pointing out that she was questioned
in “open court, on the record, in the course of a judicial proceeding” and in the
presence of counsel. Id. Accordingly, “Miranda warnings were not required
here, just as they are not required when any other witness or defendant is
questioned in open court.” Id.
      In addition, defense counsel were present during the “interrogation.” As
the Supreme Court explained in Miranda, the presence of counsel is an
“adequate protective device” to ensure the interrogation is not in violation of the


      11
           Miranda, 384 U.S. 436.

                                        37
                                       No. 06-70021

Fifth Amendment. 384 U.S. at 466. See also United States v. Tyler, 592 F.2d
261, 263 (5th Cir. 1979) (per curiam) (explaining that “[i]t is not the right to
counsel that the Fifth Amendment protects but the freedom from custodial
interrogation without counsel”). Martinez has not made a substantial showing
of a Fifth Amendment violation.
              B.      Sixth Amendment violation
       Martinez also contends that his counsel’s failure to intervene during this
exchange with the prosecutor constituted a constructive denial of counsel in
violation of the Sixth Amendment. As previously set forth in Section III.M.,
supra, “‘[a] constructive denial of counsel occurs in only a very narrow spectrum
of cases where the circumstances leading to counsel’s ineffectiveness are so
egregious that the defendant was in effect denied any meaningful assistance at
all.’” Griffin, 324 F.3d at 364 (quoting Gochicoa, 238 F.3d at 284).
       The record reveals that defense counsel objected twice during this
exchange and subsequently filed a motion in limine, seeking to preclude the
admission of Martinez’s statements during the punishment phase. Martinez
acknowledges counsel’s objections and motion in limine but nonetheless contends
that counsel should have raised constitutional challenges to the evidence.
Allegations of “counsel’s errors, omissions, or strategic blunders” do not support
the presumption of prejudice. Childress v. Johnson, 103 F.3d 1221, 1229 (5th
Cir. 1997).      Because Martinez “received some meaningful assistance, it [is]
necessary to prove prejudice.” Id.12 Martinez has failed to make a substantial
showing of the denial of counsel on this claim.
       V.     CONCLUSION
       For the above reasons, the motion for a COA is DENIED.



       12
           Martinez also raises an ineffective assistance of counsel claim regarding the failure
to object to cross-examination regarding this exchange. See III. K., supra.

                                              38
