     Case: 16-70005      Document: 00513780048         Page: 1    Date Filed: 12/01/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-70005                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
WALTER ALEXANDER SORTO,                                                  December 1, 2016
                                                                           Lyle W. Cayce
              Petitioner–Appellant,                                             Clerk

v.

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

              Respondent–Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CV-613


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       This is an appeal of the district court’s denial of habeas relief in the case
of Walter Alexander Sorto, who was convicted of capital murder and sentenced
to death in Texas in 2003.
       Sorto first argues the district court abused its discretion in denying
requests for funding that would have enabled him to hire an expert to
determine whether he has an intellectual disability. He asserts that these


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 16-70005   Document: 00513780048     Page: 2   Date Filed: 12/01/2016



                                 No. 16-70005
funds were necessary in order to develop his claim under Atkins v. Virginia,
536 U.S. 304 (2002). A certificate of appealability (“COA”) is not required for
Sorto to appeal the district court’s denial of funds. Woodward v. Epps, 580 F.3d
318, 333 n.8 (5th Cir. 2009). In connection with this issue, Sorto may file a
supplemental brief discussing whether 28 U.S.C. § 2254(b)(1)(B)(ii) applies in
the present case. The supplemental brief may be filed with this Court no later
than thirty days after the date of this order and should address only matters
that have not already been briefed. If Sorto files a supplemental brief, Appellee
may file a response no later than twenty days thereafter, also limited to
matters that have not already been briefed.
      In addition, Sorto requests COAs with respect to claims that (1) he was
subjected to custodial interrogation prior to being warned of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and (2) his trial counsel
provided ineffective assistance by failing to develop and present certain
mitigation evidence. For the following reasons, we DENY COAs with respect
to Sorto’s Miranda and ineffective assistance of counsel (“IAC”) claims.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On June 1, 2002, the police found two deceased women in a vehicle in an
industrial area of Houston, Texas. The police identified the women as Maria
Rangel and Roxana Capulin, both of whom had been missing since leaving
their jobs at a restaurant the previous night. Rangel had been shot twice in the
head, and Capulin had died from a single gunshot wound. Both bore signs of
sexual trauma.
A.    Police Interviews
      At approximately 7:45 p.m. on August 20, 2002, Harris County Sheriff’s
Deputy Miguel Gonzalez and Detective Alejandro Ortiz met Sorto and a
confidential informant in a hotel room. Sorto told the officers that although he
was not a participant in the offense, he had seen Edgardo Cubas and Eduardo
                                       2
     Case: 16-70005   Document: 00513780048     Page: 3   Date Filed: 12/01/2016



                                 No. 16-70005
Navarro abduct Rangel and Capulin and had followed them to a remote
location. Sorto claimed he left the scene of the crime when he heard gunshots.
      Considering Sorto a witness to the crime, Detective Ortiz asked him to
continue the interview at the Harris County Sheriff’s homicide office. The
police and Sorto traveled to the police station in separate vehicles. During a
videotaped interview that commenced at 9:52 p.m., Sorto initially repeated the
story he had told the officers at the hotel. At 10:48 p.m., Detective Ortiz asked
Sorto to provide a saliva sample to the police. Sorto was “kind of stunned” by
the request and asked: “What is this exam? Is it pretty good, 100 percent or
what?” According to Detective Ortiz, after providing the saliva sample, Sorto
began to change his story. Sorto said that after Cubas had shot the two women,
Cubas forced Sorto to return to the scene and have sexual intercourse with
Rangel’s corpse.
      Around 11:21 p.m., the police read Sorto his Miranda warnings in
Spanish, although they still did not consider him to be in custody. During a
series of interrogations that occurred over the next few hours, Sorto admitted
to committing several crimes, many of which involved Cubas. At 1:10 a.m.,
after learning that Sorto had an outstanding arrest warrant, Detective Ortiz
formally took Sorto into custody. In an interview beginning around 8:25 a.m.
the following morning, Sorto gave the police a third version of the events—he
admitted that he had participated in sexually assaulting Rangel but
maintained he was not involved in the women’s murders.
B.    Trial
      The State of Texas charged Sorto with capital murder for intentionally
and knowingly killing Rangel and Capulin during the same criminal
transaction. The State also notified Sorto that it intended to seek the death
penalty.


                                       3
     Case: 16-70005    Document: 00513780048     Page: 4   Date Filed: 12/01/2016



                                  No. 16-70005
      Sorto’s trial counsel moved to suppress Sorto’s statements to police,
arguing that he was in custody long before the police read him the Miranda
warnings. The defense also contended that, even after the Miranda warnings
were read, Sorto did not understand the constitutional rights he had waived.
After a lengthy hearing, the trial court refused to suppress Sorto’s statements
to police.
      During the trial that followed, the jury instructions provided that Sorto
could be convicted if: (1) he actually shot the victims; (2) he was a party to the
offense; or (3) he conspired to kill the victims. The State supported its
argument that Sorto was a party to or conspirator in the murders by pointing
to an earlier crime, in which fifteen-year-old Esmeralda Alvarado had been
raped and murdered. DNA evidence linked Sorto and Cubas to Alvarado’s rape,
and Sorto had confessed to involvement in the rape, though he maintained that
Cubas was the shooter. The State argued that Sorto knew Cubas would kill
Rangel and Capulin after the sexual assaults because Cubas had previously
killed Alvarado. The jury found Sorto guilty of capital murder.
      After a Texas jury has convicted a capital defendant, the appropriate
sentence is determined pursuant to state law through answers to special issue
questions that are presented to the jury. In this case, the trial court instructed
the jury to decide whether (1) Sorto would be a future danger to society,
(2) Sorto caused the two killings or anticipated that a human life would be
taken, and (3) sufficient circumstances mitigated against the imposition of a
death sentence. Both parties presented extensive evidence during the
sentencing phase. Ultimately, the jury answered the special issues in a manner
that required imposition of a death sentence.
C.    Direct Appeal and Habeas Proceedings
      Sorto raised sixteen claims on automatic direct appeal. The Texas Court
of Criminal Appeals (“TCCA”) affirmed Sorto’s conviction and sentence. Sorto
                                        4
     Case: 16-70005       Document: 00513780048          Page: 5     Date Filed: 12/01/2016



                                       No. 16-70005
v. Texas, 173 S.W.3d 469, 471 (Tex. Crim. App. 2005). In 2005, during the
pendency of his direct appeal, Sorto also filed a state habeas application
pursuant to Article 11.071 of the Texas Code of Criminal Procedure, raising
fifteen claims, including an IAC claim under Wiggins v. Smith, 539 U.S. 510
(2003). The TCCA dismissed the 2005 state habeas application, adopting the
trial judge’s findings and conclusions and denying habeas relief. Ex parte Sorto,
No. WR-71,381-01, 2009 WL 483147, at *1 (Tex. Crim. App. Feb. 25, 2009) (per
curiam).
       Sorto then brought the present case seeking a writ of habeas corpus in
federal district court. On July 12, 2010, the district court issued an order
staying the case and directing Sorto to present an unexhausted Atkins claim
in state court.
       Accordingly, Sorto filed a state habeas application with the TCCA on
November 8, 2010, arguing that he should be granted relief under Atkins. Sorto
also asserted an expanded IAC claim under Wiggins and supplied the TCCA
with additional evidence in support of that claim. On April 20, 2011, the TCCA
issued a short order dismissing Sorto’s 2010 state habeas application pursuant
to Article 11.071, Section 5(a). Ex parte Sorto, No. WR-71381-03, 2011 WL
1533377, at *1 (Tex. Crim. App. Apr. 20, 2011) (per curiam). Section 5(a) states
that if a prisoner files a subsequent habeas application after filing an initial
application, Texas courts will not consider the merits or grant relief unless the
subsequent application contains sufficient specific facts establishing that one
of three narrow exceptions applies. Tex. Code Crim. Proc. art. 11.071, § 5(a). 1
Examining Sorto’s Wiggins claim under the relevant exception, the court


       1 In relevant part, Section 5(a) states the application must contain “sufficient specific
facts establishing that . . . (3) by clear and convincing evidence, but for a violation of the
United States Constitution no rational juror would have answered in the state’s favor one or
more of the special issues that were submitted to the jury in the applicant’s trial.” Tex. Code
Crim. Proc. art. 11.071, § 5(a).
                                               5
    Case: 16-70005     Document: 00513780048    Page: 6   Date Filed: 12/01/2016



                                 No. 16-70005
concluded that “the application does not contain sufficient specific facts
establishing that but for a violation of the United States Constitution, no
rational juror would have answered one or more of the special issues in the
State’s favor.” Ex parte Sorto, 2011 WL 1533377, at *1.
      The case then returned to the federal district court. On September 30,
2015, the district court issued a memorandum and order denying habeas relief
on all claims and declining to issue a COA. Sorto subsequently filed a motion
to alter or amend the judgment under Federal Rule of Civil Procedure 59(e),
which the district court denied. Sorto now appeals.
                        II. STANDARD OF REVIEW
      Sorto may only appeal the district court’s denials of habeas relief with
respect to his Miranda and IAC claims if this Court grants COAs for those
claims. 28 U.S.C. § 2253(c)(1). A COA may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). For claims denied on the merits, a defendant must demonstrate
that “reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 (1983)). For claims denied on procedural grounds, the defendant must
show that “jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right, and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Id. at 478.
      When a defendant seeks a COA on a claim that was adjudicated in state
court, the claim must be reviewed in light of 28 U.S.C. § 2254(d). Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Section 2254(d) “imposes a highly
deferential standard for evaluating state-court rulings and demands that
                                       6
     Case: 16-70005    Document: 00513780048     Page: 7   Date Filed: 12/01/2016



                                  No. 16-70005
state-court decisions be given the benefit of the doubt.” Hardy v. Cross, 132 S.
Ct. 490, 491 (2011) (per curiam) (quoting Felkner v. Jackson, 131 S. Ct. 1305,
1307 (2011) (per curiam)). Thus, when § 2254(d) applies, a federal court may
not grant habeas relief unless the state-court adjudication (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” 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).
                              III. DISCUSSION
A.    Custody During the 9:52 p.m. Interview
      During the state court proceedings, Sorto claimed that the state trial
court should have suppressed statements he made before the police warned
him of his constitutional rights under Miranda at 11:21 p.m. He contended
that he was subjected to custodial interrogation prior to receiving that
warning. On appeal, this Court must determine whether reasonable jurists
would debate whether the state court’s holding that Sorto was not in custody
was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d).
      In Miranda, the Supreme Court explained that “custodial interrogation”
means “questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any
significant way.” 384 U.S. at 444. According to case law elaborating on
Miranda, “‘custody’ is a term of art that specifies circumstances that are
thought generally to present a serious danger of coercion.” Howes v. Fields, 132
S. Ct. 1181, 1189 (2012). “Two discrete inquiries are essential to the
determination [of whether a defendant was in custody]: first, what were the
circumstances surrounding the interrogation; and second, given those
                                        7
    Case: 16-70005     Document: 00513780048     Page: 8   Date Filed: 12/01/2016



                                  No. 16-70005
circumstances, would a reasonable person have felt he or she was not at liberty
to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99,
112 (1995) (footnote omitted). A court should consider the totality of the
circumstances, including (1) “the length of the questioning”; (2) “the location of
the questioning”; (3) “the accusatory, or non-accusatory, nature of the
questioning”; (4) “the amount of restraint on the individual’s physical
movement”; and (5) “statements made by officers regarding the individual’s
freedom to move or leave.” United States v. Wright, 777 F.3d 769, 774–75 (5th
Cir. 2015) (cataloguing relevant cases).
      In light of the facts presented, it does not appear that the state court’s
decision was contrary to, or involved an unreasonable application of, clearly
established federal law. See Yarborough v. Alvarado, 541 U.S. 652, 665 (2004).
In Alvarado, the Supreme Court suggested that the facts that the interview
was conducted at the police station, the interview lasted for two hours, and
Alvarado was not told he was free to leave all weighed in favor of the view that
Alvarado was in custody. Id. at 665. However, given that Alvarado arrived at
the station voluntarily, the officers did not threaten him or suggest he would
be placed under arrest, and the officers twice asked Alvarado if he wanted to
take a break, the Supreme Court ultimately concluded that the state court had
not unreasonably applied the custody standard. Id. at 664–65.
      Similarly, in the instant case, Sorto notes that the interview lasted over
an hour before he was read his rights; it was conducted at a police station; and
at least after the oral swab was taken, the officers considered him a suspect.
However, during the suppression hearing in state court, the government
presented evidence suggesting that Sorto came to the homicide office on his
own and without pressure; the police never handcuffed Sorto throughout the
interviews that night or the following morning; Detective Ortiz never told Sorto
he could not leave; and the officers never locked the door to the interview room.
                                        8
     Case: 16-70005   Document: 00513780048     Page: 9   Date Filed: 12/01/2016



                                 No. 16-70005
These facts suggest that Sorto made his statements voluntarily and in a
noncoercive atmosphere. Because there was evidence suggesting Sorto was not
in custody, we hold that reasonable jurists would agree that the state court did
not unreasonably apply the Supreme Court’s custody standard. See Id. at 664–
65. Accordingly, we deny a COA with respect to Sorto’s Miranda claim.
B.    Ineffective Assistance on the Mitigation Special Issue
      Sorto also argues that he should be granted a COA for his claim that his
trial attorneys provided ineffective assistance under Wiggins and Strickland
v. Washington, 466 U.S. 668 (1984). He claims that his trial counsel
inadequately defended against a death sentence by failing to subpoena
witnesses who were key to the mitigation special issue. Sorto suggests that
testimony from these witnesses “very well could have influenced the jurors to
answer the mitigation special issue differently and sentence Sorto to life in
prison rather than to death.”
      In the proceedings below, the district court held that “[b]ecause the state
courts procedurally barred Sorto’s attempt to expand his Strickland claim in
the 2010 state habeas application, the only claims properly before the Court
are the claims and evidence Sorto submitted in the 2005 state habeas
application.” However, in the interests of justice, the district court considered
the evidence presented in both the 2005 and 2010 applications. The district
court held that, regardless of which application was reviewed, it was
reasonable for the state court to conclude that counsel did not provide
ineffective assistance. On appeal, Sorto contends that (1) the district court
erred in concluding his 2010 IAC claim was procedurally barred and (2) it was
unreasonable to conclude that counsel’s assistance was sufficient under
Wiggins and Strickland.




                                       9
   Case: 16-70005     Document: 00513780048      Page: 10   Date Filed: 12/01/2016



                                  No. 16-70005
      1. Procedural Bar
      “If a state court clearly and expressly bases its dismissal of a prisoner’s
claim on a state procedural rule, and that procedural rule provides an
independent and adequate ground for the dismissal, the prisoner has
procedurally defaulted his federal habeas claim.” Nobles v. Johnson, 127 F.3d
409, 420 (5th Cir. 1997). This Court has held that Article 11.071, Section 5(a)
of the Texas Code of Criminal Procedure constitutes an independent and
adequate state procedural ground for dismissal in the IAC context; therefore,
an IAC claim is procedurally defaulted if the TCCA dismisses it under
Section 5(a). Barrientes v. Johnson, 221 F.3d 741, 758–59 & n.10 (5th Cir.
2000); Nobles, 127 F.3d at 422–23; Emery v. Johnson, 139 F.3d 191, 195–96
(5th Cir. 1997).
      The TCCA clearly and expressly based its dismissal of Sorto’s 2010 IAC
claim on Section 5(a). Ex parte Sorto, 2011 WL 1533377, at *1. Contrary to
Sorto’s contentions on appeal, the TCCA’s specific reference to the relevant
exception in Section 5(a) did not make the language of the order ambiguous—
rather, it made clear that Sorto had failed to make the requisite showing under
that exception. See id. (holding that “the application does not contain sufficient
specific facts establishing that but for a violation of the United States
Constitution, no rational juror would have answered one or more of the special
issues in the State’s favor”). Accordingly, we hold that reasonable jurists would
agree that the district court was correct in concluding that the IAC evidence
raised in Sorto’s 2010 state habeas application was procedurally barred and
thus that the district court could only consider the evidence raised in Sorto’s
2005 state habeas application.
      Sorto also argues that his 2010 IAC claim is procedurally viable under
Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911
(2013), because his state habeas counsel in 2005 was ineffective. “A prisoner
                                       10
    Case: 16-70005    Document: 00513780048        Page: 11   Date Filed: 12/01/2016



                                  No. 16-70005
may obtain federal review of a defaulted claim by showing cause for the default
and prejudice from a violation of federal law.” Martinez, 132 S. Ct. at 1316. In
Martinez, the U.S. Supreme Court held that the ineffectiveness of a prisoner’s
postconviction attorney in the initial state habeas proceeding can be used to
establish cause for a procedural default. Id. at 1320; see also Trevino, 133 S.
Ct. at 1921 (applying Martinez to Texas’s habeas framework). To meet this
exception to the procedural default rule, however, the prisoner must show that
(1) his postconviction attorney in the initial state habeas proceeding was
“ineffective under the standards of Strickland” and (2) “the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say
that the prisoner must demonstrate that the claim has some merit.” Martinez,
132 S. Ct. at 1318.
      Here, the district court considered the evidence presented in Sorto’s 2010
state habeas application and concluded that the additional evidence did not
establish that Sorto’s IAC claim had merit. As discussed below, the district
court’s assessment of the merits of the 2010 expanded IAC claim was correct.
Therefore, we hold that reasonable jurists would agree with the district court’s
conclusion that Sorto has not shown the underlying IAC claim is substantial
and therefore has not shown cause for the procedural default.
      2. Sufficiency of Counsel’s Assistance
      Generally, to prove an IAC claim, the defendant must show that
(1) “counsel’s   representation    fell    below    an   objective   standard     of
reasonableness” and (2) “the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687–88. With respect deficient performance, there is “a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689–90. With respect to prejudice,
the “defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
                                          11
    Case: 16-70005     Document: 00513780048      Page: 12    Date Filed: 12/01/2016



                                  No. 16-70005
different.” Id. at 694. In federal habeas proceedings, our review of an IAC claim
is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The
state court’s decision will be upheld if the state court had a reasonable basis
for concluding that counsel satisfied Strickland’s deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
          a. 2005 state habeas application
       In his 2005 state habeas application, Sorto alleged that his trial counsel
was ineffective for failing to adequately investigate and present evidence of
post-traumatic stress disorder (“PTSD”) and exposure to hazardous chemicals.
Sorto provided only an affidavit from himself in support of his IAC claim. In
response, Sorto’s trial counsel filed affidavits describing their efforts to develop
evidence of Sorto’s PTSD and chemical exposure and explaining why they
chose not to raise these issues during the sentencing phase.
       The state habeas court found that Sorto had failed “to demonstrate that
witnesses or evidence were available to support [his] claims regarding PTSD
and/or hazardous chemical exposure.” In addition, the state court found that
“the   defense   team    conducted    extensive    research    and    investigation
regarding . . . chemical exposure,” including reviewing documents, consulting
with people who knew Sorto, consulting with a university chemistry
department, conducting a brain scan that revealed no evidence of organic
disruption, and consulting with a psychiatrist. Considering the trial attorneys’
efforts, the evidence they collected, and the lack of evidence Sorto supplied in
support of his IAC claim, the state court concluded that “trial counsels’
investigation of [Sorto’s] potential mitigating evidence was objectively
reasonable and consistent with a coherent trial strategy.”
       In reviewing the state court’s decision, the district court aptly noted that
“this is not a case where trial counsel ‘failed to pursue known leads’ or
‘ignored . . . useful information.’” See Skinner v. Quarterman, 576 F.3d 214,
                                        12
   Case: 16-70005    Document: 00513780048     Page: 13   Date Filed: 12/01/2016



                                No. 16-70005
220 (5th Cir. 2009). On the contrary, there is extensive evidence that trial
counsel sought to develop defenses based on PTSD and chemical exposure but
ultimately concluded there was insufficient evidence to support these defenses.
Accordingly, we hold that reasonable jurists would agree that the state court
had a reasonable basis for concluding that trial counsel’s assistance was
sufficient under Wiggins and Strickland.
         b. 2010 state habeas application
      In his 2010 state habeas application, Sorto claimed his attorneys should
have conducted a broader investigation into his background that would have
revealed a “wealth of mitigating evidence,” including his PTSD, exposure to
warfare, exposure to hazardous chemicals, intellectual disability, extreme
poverty and malnutrition, forced child labor, and beatings and severe
punishment. In support, Sorto provided affidavits from eight witnesses who
were willing to testify in his 2003 trial. Although the TCCA did not reach the
merits of Sorto’s 2010 claim, see Ex parte Sorto, 2011 WL 1533377, at *1,
during the federal habeas proceedings, the district court reviewed Sorto’s
expanded IAC claim de novo and concluded Sorto had failed to show deficient
performance and prejudice.
      This Court “must be particularly wary of arguments that essentially
come down to a matter of degrees. Did counsel investigate enough? Did counsel
present enough mitigating evidence?” Skinner, 576 F.3d at 220 (quoting
Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)). When the unpresented
evidence is not “shocking and starkly different than that presented at trial,”
this Court has held that the IAC claim is not viable. Blanton v. Quarterman,
543 F.3d 230, 239–40 n.1 (5th Cir. 2008); Coble v. Quarterman, 496 F.3d 430,
437 (5th Cir. 2007) (holding that the state court’s decision was not
unreasonable where much of the evidence defendant argued should have been
developed more effectively was nonetheless presented at trial).
                                      13
   Case: 16-70005     Document: 00513780048     Page: 14   Date Filed: 12/01/2016



                                 No. 16-70005
      Here, it appears that the evidence presented at trial was not starkly
different from the evidence Sorto contends should have been presented. Sorto’s
trial counsel called six witnesses who testified on his behalf during the
punishment phase. Four family members testified regarding his childhood,
including his exposure to the Salvadoran civil war, poverty and malnutrition,
beatings and severe punishment, abandonment by his mother, poor academic
record, and work fumigating crops. In addition, a forensic psychiatrist testified
about Sorto’s background, including the beatings and sexual abuse Sorto
experienced as a child, and discussed Sorto’s risk for future dangerousness.
The evidence presented at trial touched on the same issues Sorto raised in his
2010 state habeas application, albeit not to the degree Sorto contends was
warranted. Thus, it seems that Sorto’s 2010 IAC claim did not make a
sufficient showing of deficient performance.
      In assessing prejudice, a court must “evaluate the totality of the
available mitigation evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding—in reweighing it against the evidence in
aggravation.” Williams v. Taylor, 529 U.S. 362, 397–98 (2000). The district
court noted that the evidence suggested Sorto had engaged in a pattern of
escalating offenses “from violent robberies, to the rape and murder of one
woman, to the rape and murder of two women.” Given the severity of the
offense and Sorto’s apparent pattern of criminal activity, we hold that
reasonable jurists would agree Sorto has not shown any reasonable probability
that the additional mitigating evidence would have swayed the jury to impose
a lesser sentence. Thus, we deny a COA with respect to Sorto’s IAC claims.
                              IV. CONCLUSION
      For the foregoing reasons, we DENY COAs with respect to Sorto’s
Miranda and IAC claims. In connection with his Atkins claim, supplemental


                                       14
   Case: 16-70005     Document: 00513780048        Page: 15   Date Filed: 12/01/2016



                                  No. 16-70005
briefing will be permitted on the question of whether 28 U.S.C.
§ 2254(b)(1)(B)(ii) applies in the present case.




                                       15
