                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 17, 2004
                         _____________________
                                                           Charles R. Fulbruge III
                              No. 03-41059                         Clerk
                         _____________________

                       VIRGIL EURISTI MARTINEZ,

                        Petitioner - Appellant,

                                versus

                           DOUG DRETKE,
         Director, Texas Department of Criminal Justice,
               Correctional Institutions Division,

                        Respondent - Appellee.

_________________________________________________________________

           Appeal from the United States District Court
          for the Southern District of Texas, Galveston
                District Court Cause No. 02-CV-718
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PER CURIAM.

     Petitioner Virgil Euristi Martinez was convicted of capital

murder in Texas state court and sentenced to death.       After

exhausting his state remedies, Martinez applied for federal

habeas relief.    The district court denied Martinez’s application

for a writ of habeas corpus, but it granted Martinez a

certificate of appealability for his ineffective assistance of

counsel claim.    After considering that claim on appeal, this

     1
      Pursuant to 5TH CIRCUIT RULE 47.5, this court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                   1
court vacates the portion of the district court’s judgment that

rejects Martinez’s ineffective assistance of counsel claim and

remands the case for development of the record on that claim.

                      Background for this Appeal

     A jury convicted Martinez of murdering his ex-girlfriend,

Veronica Fuentes; Veronica’s two children, five-year-old Joshua

and three-year-old Cassandra; and bystander John Gomez.       During

the sentencing portion of Martinez’s trial, the State of Texas

presented the testimony of several witnesses to establish

Martinez’s future dangerousness.       Martinez’s lawyers, however,

called only one witness, Dr. Anand Mehendale.       Dr. Mehendale, a

neurologist from Kerrville State Hospital, testified that

Martinez’s EEG indicated an epileptic focus in the right temporal

lobe of Martinez’s brain and that epilepsy can cause amnesia

during a seizure.     Dr. Mehendale indicated that a person having a

seizure cannot engage in planned activity.       After hearing this

evidence, the jury determined a probability existed that Martinez

would commit criminal acts of violence that would constitute a

continuing threat to society and that insufficient mitigating

circumstances existed to warrant a sentence of life imprisonment

rather than death.2    Accordingly, the state trial court entered a

judgment sentencing Martinez to death by lethal injection.


     2
      See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2 (Vernon Supp.
2004) (setting forth issues that jury must consider during
punishment phase of capital case in Texas).

                                   2
     During his state habeas proceeding, Martinez argued that his

trial attorneys were ineffective because they did not fully

investigate his epilepsy as a mitigating factor.    Martinez

contended that evidence of his condition “would have rebutted the

State’s case of future dangerousness, provided the jury with a

vehicle to spare his life, both in terms of future dangerousness

and mitigation, and provided an explanation for [his] behavior

and violent crime.”   Without conducting a hearing, the state

habeas judge determined that the attorneys’ performance did not

fall below an objective standard of reasonableness.    After

reviewing the record and the habeas judge’s findings, the Texas

Court of Criminal Appeals denied Martinez’s application for

habeas relief.

     Considering the same claim, the district court agreed that

trial counsel’s performance during the punishment phase of

Martinez’s trial did not fall below professional norms and denied

Martinez’s application for federal habeas relief.    Although not

explicitly stated in its order, the district court implicitly

determined the state court’s disposition of the claim was not an

unreasonable application of clearly established federal law.    The

district court did not conduct a hearing.

                        Standard of Review

     In a habeas corpus appeal, this court reviews the district

court’s findings of fact for clear error and its conclusions of



                                 3
law de novo, applying the same standards to the state court’s

decision as did the district court.3     This court may not grant

relief on a claim that a state court has adjudicated on the

merits “unless the adjudication of the claim . . . 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.”4     “A state court's

decision is deemed ‘contrary to’ clearly established federal law

if it relies on legal rules that directly conflict with prior

holdings of the Supreme Court or if it reaches a different

conclusion than the Supreme Court on materially indistinguishable

facts.”5   “A state court's decision constitutes an unreasonable

application of clearly established federal law if it is

objectively unreasonable.”6     This court presumes the state

court’s findings of fact are correct, and the petitioner has the

burden of rebutting the presumption of correctness by clear and

convincing evidence.7

         Martinez’s Ineffective Assistance of Counsel Claim

     On appeal, Martinez maintains that the decisions of the

     3
      See Busby v. Drekte, 359 F.3d 708, 713 (5th Cir. 2004).
     4
      28 U.S.C. § 2254(d)(1).
     5
      Busby, 359 F.3d at 713 (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)).
     6
      Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir. 2003).
     7
      See 28 U.S.C. § 2254(e)(1).

                                   4
state habeas court and the district court were unreasonable

applications of Strickland v. Washington8 because the decisions

assumed that the strategy of defense counsel was reasonable even

though that strategy was based on unreasonably inadequate

investigation.   Martinez contends that his trial attorneys were

ineffective during the punishment phase of his trial because they

failed to investigate his disease, temporal lobe epilepsy.

Martinez maintains that if his attorneys had investigated the

nature of temporal lobe epilepsy, they would have learned about

its impact on aggression and violence.   According to Martinez, a

reasonable probability exists that at least one juror would have

considered the disease as a mitigating circumstance warranting a

sentence of life imprisonment rather than death.   Martinez

contends that his lawyers simply gave up on the punishment phase

of trial without considering the impact of his disease.

     To establish ineffective assistance of counsel under

Strickland, a criminal defendant must show that his attorney’s

assistance was deficient and that the deficiency prejudiced him.9

“To establish deficient performance, a petitioner must

demonstrate that counsel's representation ‘fell below an




     8
      Strickland v. Washington, 466 U.S. 668 (1984).
     9
      See Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.),
cert. denied, 124 S. Ct. 430 (2003).

                                 5
objective standard of reasonableness.’”10     This court’s primary

concern in deciding whether defense counsel exercised reasonable

professional judgment is not whether counsel should have

presented a mitigation case, but rather whether the investigation

supporting counsel's decision not to introduce mitigating

evidence of the defendant’s background was itself reasonable.11

“In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to

counsel's judgments."12     After applying these principles to

Martinez’s claim, this court concludes that the record is not

sufficiently developed regarding the adequacy of the

investigation into Martinez’s epilepsy to resolve Martinez’s

claim.

     To support his complaint that his attorneys did not fully

investigate his condition, Martinez relies, in part, on an

affidavit by Dr. Theodore Pearlman which Martinez first presented

to the state habeas judge.     One of Martinez’s trial attorneys,

Jeri Yenne, sought Dr. Pearlman’s assistance in determining

Martinez’s competency to stand trial, the viability of an

insanity defense, and Martinez’s potential for future

     10
      See Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)(quoting
Strickland).
     11
          See Wiggins, 123 S. Ct. at 2536.
     12
          Strickland, 466 U.S. at 690.

                                   6
dangerousness.   In his   affidavit, Dr. Pearlman attests that

“never have I been presented with such tangible evidence

supporting a diagnosis of Epilepsy related to criminal behavior.”

Dr. Pearlman explained that if he had testified during the

punishment phase of Martinez’s trial, he would have explained

that:

     individuals with [temporal lobe epilepsy], even
     individuals who seem to behave seemingly deliberately,
     are pathologically driven by seizure activity occurring
     in the brain.... An attack of [temporal lobe epilepsy]
     does not necessarily cause total lack of consciousness.
     There might be a narrowing of full awareness during an
     attack, impairing the ability to think and act
     normally. While an episode of [temporal lobe epilepsy]
     is not exclusive of some degree of willful behavior,
     [temporal lobe epilepsy] diminishes capacity for full
     responsibility.

This information could be important mitigation evidence because

it suggests that Martinez may have acted with diminished capacity

and could have provided the jury with an explanation for why he

committed his crime.   The record, however, does not confirm how

much of this information Yenne learned in her investigation.

     Although Martinez’s habeas attorney stated in the state

habeas application that Dr. Pearlman reported to Yenne that

Martinez suffered from temporal lobe epilepsy, Dr. Pearlman’s

report is not part of the record.     Instead of indicating that Dr.

Pearlman reported that Martinez suffers from temporal lobe

epilepsy, Yenne’s notes state that: Dr. Pearlman found that

Martinez was competent to stand trial, but insane at the time of

the murders; Dr. Pearlman explained that the outreach center had

                                  7
been correct in its initial finding that Martinez did not use

drugs; Dr. Pearlman believed that Kerrville Hospital mis-

diagnosed Martinez and gave him a medication which aggravated his

seizures; and Dr. Pearlman opined that future dangerousness was

highly unlikely.   But Yenne’s notes do not include Dr. Pearlman’s

diagnosis.   Thus, it is impossible to confirm whether Dr.

Pearlman advised Yenne that Martinez suffers from temporal lobe

epilepsy or whether Dr. Pearlman’s report should have triggered

further investigation.

     Martinez also relies on a habeas affidavit by Dr. Mehendale,

the neurologist who testified during the punishment phase of

trial.   Martinez presented the affidavit to the state habeas

judge.   Although his trial testimony did not address this aspect

of Martinez’s epilepsy, Dr. Mehendale attested in his affidavit

that:

     while [Martinez] may not have been experiencing a
     seizure while he was allegedly committing acts of
     murder, [temporal lobe epilepsy] definitely played a
     role in [Martinez’s] aggression. Patients with
     [temporal lobe epilepsy] are odd, bizarre patients and
     there are significant intercital abnormalities of a
     psychiatric nature in these patients. If [Martinez] had
     been diagnosed and treated as epileptic while he was
     still a child, [Martinez] would have had stable brain
     functioning. This would have reduced his chances of
     progressive personality deterioration that can
     occasionally occur in patients with [temporal lobe
     epilepsy]. With proper diagnosis and management...,
     [Martinez’s] propensity for committing acts of murder
     would be somewhat diminished.

This information could be important mitigation evidence because

it suggests that Martinez suffers from personality deterioration

                                 8
and may not have committed his crime if he had been treated as a

child.   It also suggests that Martinez might not commit future

acts of violence if he received treatment.   But as with Dr.

Pearlman’s affidavit, the record does not confirm how much of

this information Yenne learned in her investigation.

     Instead of indicating that Dr. Mehendale believed temporal

lobe epilepsy caused Martinez to act aggressively, Yenne’s

interview notes reflect that Dr. Mehendale advised her that an

EEG indicated Martinez suffered from a seizure disorder and that

Martinez’s drug test did not indicate drug use.   Yenne’s notes,

however, do not indicate whether Dr. Mehendale told her that

Martinez suffered from temporal lobe epilepsy or about its

potential for causing aggressive behavior.   Although it is clear

that Yenne knew Martinez suffered from some type of seizure

disorder, it is impossible to determine whether Dr. Mehendale

told Yenne that Martinez suffers from temporal lobe epilepsy or

about its effect on aggressive behavior.

     Martinez further relies on his educational records.     These

records reflect that Martinez experienced learning difficulties

in school that may have resulted from mental problems, that

Martinez had average intelligence, and that he was often

disruptive in class.   This information could be important

mitigation evidence because it supports Dr. Pearlman’s assessment

of an impaired ability to act normally and Dr. Mehendale’s

description of a progressive personality disorder.   Yenne’s

                                 9
notes, however, do not indicate whether she read the school

records and considered how Martinez’s behavioral problems might

be related to what she learned from Dr. Pearlman and Dr.

Mehendale, or whether she simply forwarded the records to Dr.

Pearlman for evaluation.    Because the record reflects only that

Yenne obtained the records and forwarded them to Dr. Pearlman, it

is impossible to determine whether Yenne investigated how the

records might serve as mitigation evidence.

     Martinez also relies on the affidavits that his trial

attorneys submitted to the state habeas judge.    The state habeas

judge instructed the attorneys to file affidavits that responded

to Martinez’s allegation that they “[f]ailed to recognize Complex

Partial Seizure Disorder and/or Temporal Lobe Epilepsy as a

mitigating factor.”   Despite this specific instruction, Yenne

explained little in her affidavit.    In regard to mitigation,

Yenne explained that she and co-counsel, Stan McGee, concluded

that “if we forwarded any information concerning other good acts

performed by the defendant or character [sic] this would open the

door to other witnesses as to his bad character and it was not

worth the same.”   Yenne did not address whether she learned that

Martinez suffers from temporal lobe epilepsy or whether she

considered using Martinez’s epilepsy as mitigation evidence

during the punishment phase of trial.

     McGee’s affidavit is somewhat more detailed, but

nevertheless unhelpful.    McGee attested that:

                                 10
     it appeared to me that we were pursuing a defense of
     mistaken identity, among others, that [Martinez’s]
     statements to the court appointed experts may have been
     admissible as a result of the introduction of evidence
     concerning issues of learning problems, mental
     disabilities, and a claim of mitigation. As to a
     failure to develop a defense to the State’s arguments
     for future dangerousness, I cannot say that we did not
     do that.

Notably, McGee does not indicate what he and Yenne knew about

Martinez’s epilepsy or whether they considered the condition as

mitigating evidence.     As a result, it is impossible to ascertain

whether the attorneys investigated Martinez’s epilepsy condition.

     Without having some indication of what Yenne and McGee knew

about Martinez’s condition, and what they did to investigate the

condition, the district court lacked the evidence needed to

determine whether the investigation supporting the decision not

to use evidence of Martinez’s condition during the punishment

phase of trial was reasonable,13 or whether the decision not to

investigate further was reasonable.14        To make those

determinations, the district court needed evidence that is beyond

the present record.     Where the petitioner's allegations cannot be

resolved without examining evidence beyond the record, the

district court should conduct a hearing.15       An evidentiary

hearing is required where a state habeas petitioner did not


     13
          See Wiggins, 123 S. Ct. at 2536.
     14
          Strickland, 466 U.S. at 690.
     15
          See Byrne v. Butler, 845 F.2d 501, 512 (5th Cir. 1988).

                                   11
receive a state court hearing and alleges facts which, if proved,

would entitle him to relief, and the record reveals a genuine

factual dispute as to the alleged facts.16

     In his application for federal habeas relief, Martinez

alleged that Dr. Pearlman’s report “brimmed with mitigating

information,” but that “[t]here is no evidence in the attorney’s

files that the mitigating evidence provided by [Dr.] Pearlman was

recognized by either trial attorney.”   Martinez further asserted

that although testimony was available from both Dr. Pearlman and

Dr. Mehendale that he suffered from temporal lobe epilepsy, and

that both doctors agreed that temporal lobe epilepsy caused some

of his aggression, his attorneys failed to recognize, develop and

introduce the mitigating evidence these doctors offered.   These

allegations, if proved, would entitle Martinez to relief because

it would have given the jury an explanation for Martinez’s crime.

In addition, the record reveals a genuine factual dispute as to

the allegations – that is, did Martinez’s attorneys know about

his condition; if so, what did they do to investigate the nature

of his condition and to develop it as mitigating evidence?

     The district court should have conducted an evidentiary

hearing to determine whether Martinez’s attorneys undertook any

strategic calculation or informed balancing about presenting

temporal lobe epilepsy as mitigating evidence.   Because the

     16
      See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000);
see also Townsend v. Sain, 372 U.S. 293, 312-13 (1963).

                                12
district court did not conduct a hearing, this court VACATES that

portion of the district court’s judgment that addresses

Martinez’s ineffective assistance of counsel claim based on the

failure of his attorneys to investigate temporal lobe epilepsy as

mitigating evidence, and REMANDS the case to the district court

with instructions to conduct an evidentiary hearing on that

issue.   Following the hearing, the district court should consider

whether counsel’s investigation of Martinez’s temporal lobe

epilepsy was unreasonably deficient and, if so, whether counsel’s

failure to investigate this condition and produce evidence

relating to it amounted to ineffective assistance of counsel.

VACATED and REMANDED.




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