                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit                  July 3, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-70057


                            ARTURO DIAZ,

                                             Petitioner-Appellant,


                               VERSUS


                   NATHANIEL QUARTERMAN, DIRECTOR,
               TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                 CORRECTIONAL INSTITUTIONS DIVISION,

                                              Respondent-Appellee.




           Appeal from the United States District Court
                for the Southern District of Texas
                          (7:04-CV-00225)




Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

      This is a death penalty case in which Petitioner Arturo Diaz

appeals the district court’s denial of federal habeas relief. The

facts of Diaz’s underlying capital offense are detailed in this

Court’s opinion of April 11, 2007. See Diaz v. Quarterman, No.



  *
   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opinion should not be published and is not precedent except under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.
05-70057, 2007 WL 1112044, at *1-*3 (5th Cir. Apr. 11, 2007). In

summary, Diaz brutally stabbed one man to death and attempted to

stab another man to death in the course of robbing the two men. He

was convicted by a Texas jury of capital murder, attempted capital

murder, and aggravated robbery, and he was sentenced to death. He

unsuccessfully pursued an appeal with the Texas Court of Criminal

Appeals. He also unsuccessfully pursued habeas relief with that

court. In 2004, he filed a federal habeas petition in the U.S.

District Court for the Southern District of Texas. That court

denied relief on all of Diaz’s claims and declined to issue a

Certificate of Appealability (COA). He then filed an appeal with

this   Court   and   requested    a   COA   on   seven   issues.    This   Court

certified for appeal one issue presented by Diaz: whether trial

counsel rendered ineffective assistance during the punishment phase

of trial by failing to adequately investigate and present readily

available mitigating evidence. See id. We now affirm the district

court’s denial of habeas relief.

I. Facts Relating to Counsel’s Investigation and Presentation of

                           Mitigating Evidence

                      A. Punishment Phase of Trial

       The trial record shows that the only witness offered by the

defense at     the   punishment   phase     of   trial   was   a   psychologist

appointed by the court to evaluate Diaz. The psychologist, Dr.

Pinkerman, testified that Diaz had a history of head trauma; an IQ


                                       2
of 89; some cognitive disabilities, which may have stemmed from

prolonged alcohol or substance abuse; and an early history of

behavior that indicated a propensity for delinquency and adult

criminal behavior. On cross, the State introduced Dr. Pinkerman’s

written report into evidence over defense’s objection. The report

included Dr. Pinkerman’s conclusions that Diaz “approached the

assessment in somewhat of an exaggerated manner which may reflect

an inability to cooperate with the testing or malingering in an

attempt to present himself with the false claim of mental illness”;

that Diaz was not mentally ill; and that Diaz’s profile matches

that of Type C offenders, whom Dr. Pinkerman described as the most

difficult criminal offenders -- those who are distrustful, cold,

irresponsible, and unstable. During closing arguments, defense

counsel referenced as mitigating evidence that Diaz was married

with a five-year-old daughter, had grown up with his grandmother,

had learning disabilities, and had strong feelings of guilt and

depression. No other mitigating evidence was presented.

                      B. State Habeas Court

     Regarding the issue certified for appeal, the state habeas

court found the following:

          Although Applicant’s argument . . . that he was
     denied effective assistance of counsel based on trial
     counsel’s   alleged   failure   to   present   sufficient
     mitigating evidence claims that some of Applicant’s
     family members were available and willing to testify on
     his behalf at the punishment phase, . . . Applicant does
     not provide any specifics concerning which family members
     were allegedly willing to testify on his behalf.


                                3
          In particular, he does not name said individuals,
     give their relationship to Applicant, or explain why he
     now claims that they had expressed a willingness to
     testify.

          Nor does Applicant attach any type of affidavit or
     other form of factual support for his claim that some of
     his family members would have been willing to testify.

          He likewise does not, in any way, suggest what the
     testimony of his family members would have been.

          . . . .

          Trial attorneys Rogelio Garza and Daniel R. Reyes
     have   provided  credible   information  that   two  of
     Applicant’s family members had been present during the
     punishment phase of trial; that they had, however,
     refused to be called to testify; and that Applicant had
     not wanted them to call his family members to testify.

          Said attorneys have likewise given credible
     testimony, by affidavit, indicating that they had made
     their decision concerning this topic based on their trial
     strategy; that they had conferred with Applicant before
     doing so; and that Applicant had agreed with said
     decision.

          Mr. Garza and Mr. Reyes have further provided
     credible affidavit testimony that they had presented all
     to [sic] the mitigation evidence which they had had
     available to them; that their decisions concerning use of
     said evidence, including Dr. Pinkerton’s testimony, had
     been based on their trial strategy; that they had
     conferred with Applicant before making said decision; and
     that Applicant had been in agreement with their decision.

Ex parte Diaz, No. CR-1464-99-G(1), paras. 1201-1204, 1208-1210

(370th Dist. Ct., Hidalgo County, Tex. Apr. 23, 2003) (proposed

order containing findings of fact, conclusions of law, and a

recommendation). Based on these findings, the court concluded that

Diaz was not entitled to habeas relief on the claim at issue here.

                     C. Federal Habeas Court

                                4
     When Diaz filed his petition with the district court, he

attached a series of affidavits in support of his argument that

counsel had provided ineffective assistance at the punishment phase

of trial. The affiants included his grandmother, his mother, one of

his sisters, a cousin, and a childhood teacher. All of the affiants

described Diaz’s difficult childhood and swore that they would have

testified on Diaz’s behalf if asked. The district court, adopting

the report and recommendation of the magistrate judge, determined

that Diaz was not entitled to habeas relief on this ground because

Diaz could not prove that counsel’s performance prejudiced his

defense. According to the court, the evidence of Diaz’s “childhood

privations” paled in comparison to the evidence presented to the

jury: “That Diaz committed an extremely violent murder, attempted

murder,   and   aggravated   robbery;   that   Diaz   committed   a   prior

unadjudicated homicide; and that Diaz committed numerous, and

sometimes violent, acts of misconduct while in the county jail

during his pretrial detention.” Diaz v. Dretke, No. M-04-225, at

17-18 (S.D. Tex. Aug. 19, 2005) (Magistrate Judge’s report and

recommendation). Accordingly, the court denied Diaz habeas relief,

holding that there was not a reasonable probability that the

evidence of Diaz’s childhood would have persuaded the jury to

impose a different sentence. We issued a COA on this issue and now

address Diaz’s appeal.

                             II. Discussion



                                   5
     Diaz’s appeal is governed by a familiar standard of review: we

review the district court’s findings of fact for clear error and

its conclusions of law de novo. See Martinez v. Quarterman, 481

F.3d 249, 253 (5th Cir. 2007). Because Diaz filed his petition

after the effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA), we are bound by AEDPA’s various requirements,

see id. (citing Lindh v. Murphy, 521 U.S. 320, 336 (1997)),

including the requirement that we not grant habeas relief unless

the state court’s adjudication of petitioner’s claim

     (1) resulted in a decision that was contrary to, or
     involved an unreasonable application of, clearly
     established Federal law, as determined by the Supreme
     Court of the United States; or (2) resulted in a decision
     that was based on an unreasonable determination of the
     facts in light of the evidence presented in the State
     court proceeding.

28 U.S.C. § 2254(d). Further, we must presume “a determination of

a factual issue made by [the] State court . . . to be correct”

unless   the   petitioner   rebuts       the   presumption   by   clear   and

convincing evidence. § 2254(e)(1).

     The sole issue certified for appeal is whether Diaz’s trial

counsel rendered ineffective assistance during the punishment phase

of trial by failing to adequately investigate and present readily

available mitigating evidence. Under Strickland v. Washington, 466

U.S. 668, 684-86 (1984), a defendant’s Sixth Amendment right to

counsel includes the right to the effective assistance of counsel.

A defendant has not received his constitutionally guaranteed right


                                     6
to effective assistance of counsel if counsel’s performance was

deficient and the defendant was prejudiced thereby. Id. at 687.

Counsel’s performance is deficient if it falls below an objective

standard of reasonableness, as measured by prevailing professional

norms,     see      id.     at    688;       and   counsel’s       deficient    performance

prejudices the defendant’s case “only if, but for counsel’s errors,

there is a reasonable probability that the final result would have

been different and confidence in the reliability of the verdict has

been undermined,” Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.

2005). Failure to prove either deficient performance or prejudice

will defeat an ineffective assistance of counsel claim. Id. In the

context of the punishment phase of trial, the Supreme Court has

indicated that prevailing professional norms require counsel to

investigate thoroughly the defendant’s background, including his

“medical history, educational history, employment and training

history, family and social history, prior adult and juvenile

correctional experience, and religious and cultural influences.”

Wiggins v. Smith, 539 U.S. 510, 524 (2003) (quoting ABA GUIDELINES                        FOR

THE   APPOINTMENT   AND   PERFORMANCE   OF   COUNSEL   IN   DEATH PENALTY CASES 11.4.1(C), at

93 (1989)).

        Petitioner         Diaz    argues          that      counsel’s    performance    was

constitutionally            deficient         because         counsel    did   not   “review,

investigate, or even attempt to introduce evidence” of the type

required under Wiggins. Diaz contends that counsel could have


                                                   7
obtained Wiggins-type evidence by speaking to his family members,

who were “ready, willing, and able to testify.” Further, Diaz

argues that counsel’s performance prejudiced his defense because if

counsel had interviewed his family members, counsel would have

discovered evidence of an unstable and deprived childhood, poverty

and neglect, violence and instability, a lack of male role models,

abandonment, and self-mutilation. He presents affidavits from four

family members and one childhood teacher evidencing the above, the

same affidavits offered in support of his federal habeas petition.

Respondent   Quarterman’s   response   is   three-fold:   (1)   Diaz’s

affidavits should be excluded because they were not presented to

the state court and are therefore “unexhausted”; (2) counsel’s

performance was not deficient because he was following Diaz’s

instruction not to call any family members as mitigation witnesses;

and (3) counsel’s performance was not prejudicial because the

anticipated testimony was weak and Diaz would not have permitted

the evidence to be admitted anyway.

     As stated above, the state habeas court determined that Diaz

had not provided “any specifics concerning which family members

were allegedly willing to testify,” nor attached “any type of

affidavit or other form of factual support for his claim that some

of his family members would have been willing to testify,” nor

suggested “what the testimony of his family members would have

been.” It also determined that Diaz’s trial counsel had provided



                                 8
“credible information that two of [Diaz]’s family members had been

present    during      the    punishment         phase     of   trial,       that   they

had . . . refused to be called to testify, and that [Diaz] had not

wanted [counsel] to call his family members to testify.” Finally,

the   court     determined    that       Diaz’s    trial    counsel      had    provided

“credible affidavit testimony” that their decisions relating to the

presentation of mitigating evidence were based on “trial strategy.”

Pursuant to AEDPA, we must presume these factual determinations to

be correct absent clear and convincing evidence to the contrary.

The only evidence Diaz offers to rebut the state court’s findings

is the series of affidavits presented for the first time to the

district      court.   Regardless         of    whether     these      affidavits    are

“unexhausted” per 28 U.S.C. § 2254(b)(1), as the State contends, we

cannot consider        them   per    §    2254(e)(2)       as   they    comprise    “new

evidence” that was not properly presented to the state court, and

they do not evidence a factual predicate that could not have been

discovered through the exercise of due diligence. See Roberts v.

Dretke, 356 F.3d 632, 641 (5th Cir. 2004). Without the affidavits,

Diaz has failed to rebut the presumption of correctness that

attaches to the state court’s findings, and he cannot make his case

that counsel were constitutionally ineffective at the punishment

phase of trial. The finding that Diaz did not want his family

members    to    testify      precludes         both   a   finding      of     deficient

performance and a finding of prejudice. See Dowthitt v. Johnson,


                                            9
230 F.3d 733, 748 (5th Cir. 2000) (“Counsel will not be deemed

ineffective for following their client’s wishes, so long as the

client made an informed decision.”); see also Schriro v. Landrigan,

127 S. Ct. 1933, 1941 (2007) (“If [defendant instructed his counsel

not   to   offer   any   mitigating   evidence],    counsel’s   failure   to

investigate    further     could   not     have   been   prejudicial   under

Strickland.”). A finding of prejudice is also precluded by the

state court’s determination that Diaz presented nothing to evidence

what his attorneys could have found if they had investigated his

background. A petitioner cannot show prejudice with respect to a

claim that counsel failed to investigate and present mitigating

evidence without adducing what the investigation would have shown.

See Strickland, 466 U.S. at 696 (recognizing that some evidence is

required to show that “the decision reached would reasonably likely

have been different”). Accordingly, the state court’s denial of

relief was in line with Strickland and its progeny, and Diaz is not

entitled to federal habeas relief.

                              III. Conclusion

      For the reasons stated above, we AFFIRM the district court’s

denial of habeas relief.




                                      10
