     Case: 13-70034      Document: 00512679404         Page: 1    Date Filed: 06/27/2014




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

                                                                                FILED
                                      No. 13-70034                          June 27, 2014
                                                                           Lyle W. Cayce
JUAN MARTIN GARCIA,                                                             Clerk


                                                 Petitioner – Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent – Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
       Texas death row inmate Juan Martin Garcia requests a certificate of
appealability (COA) to appeal the district court’s denial of federal habeas relief
on his intellectual disability 1 and ineffective assistance of counsel claims. The
request for a COA is DENIED.




       1The term “intellectual disability” is used to describe the “identical phenomenon” as
the term “mental retardation.” See Hall v. Florida, 134 S. Ct. 1986 (2014).
    Case: 13-70034    Document: 00512679404     Page: 2   Date Filed: 06/27/2014



                                 No. 13-70034
                                       I.
      Garcia was convicted of murdering Hugo Solano during the course of a
robbery on September 17, 1998. After he was arrested, Garcia confessed to the
crime.
      At the punishment phase, the State presented evidence of a crime spree
consisting of numerous other armed robberies and shootings committed by
Garcia and his accomplices in August and September 1998, both before and
after the armed robbery and murder of Solano. The State also presented the
testimony of an inmate who claimed that Garcia and a group of other inmates
beat him while they were incarcerated together. The defense presented two
witnesses to rebut that inmate’s testimony. The defense also called Garcia’s
mother, stepfather, sisters, and wife to testify in mitigation. The victim’s
widow testified that she had forgiven Garcia and did not want him to receive
the death penalty. The defense called as an expert witness Dr. Walter Quijano,
a clinical psychologist, to testify about factors that contribute to future
dangerousness and security measures used by the Texas prison system to
reduce or eliminate the risk of dangerousness in prison.        The trial court
sentenced Garcia to death after the jury answered the special issue on future
dangerousness affirmatively and answered the special issue on mitigation
negatively.
      The Texas Court of Criminal Appeals (TCCA) affirmed Garcia’s
conviction and sentence on direct appeal, and the Supreme Court of the United
States denied certiorari. Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2000),
cert. denied, 537 U.S. 1195 (2003).
      Garcia filed a state habeas application on August 15, 2001. The TCCA
denied relief on September 26, 2007. Ex parte Garcia, 2007 WL 2790589, No.
WR-67,096-01 (Tex. Crim. App. 2007).


                                       2
    Case: 13-70034        Document: 00512679404           Page: 3     Date Filed: 06/27/2014



                                       No. 13-70034
      Garcia filed a petition for writ of habeas corpus in federal court on
September 25, 2008. The district court granted Garcia’s motion to stay and
abate the federal proceedings while he returned to state court to exhaust his
intellectual disability claim. Garcia filed a second state habeas application in
February 2009. The TCCA held that Garcia’s allegations did not satisfy the
requirements of Article 11.071, Section 5, of the Texas Code of Criminal
Procedure, 2 and dismissed the subsequent application as an abuse of the writ.
Ex parte Garcia, No. WR-67,096-02 (Tex. Crim. App. Sept. 16, 2009). Garcia
filed an amended federal habeas petition on March 1, 2010. The district court
denied relief on September 24, 2013, and denied a COA.
                                              II.
      Garcia requests a COA from this court to appeal the denial of relief as to
two claims: (1) he is intellectually disabled and thus ineligible for execution
under Atkins v. Virginia, 536 U.S. 304 (2002); and (2) trial counsel rendered
ineffective assistance by eliciting testimony from the defense expert, Dr.
Quijano, regarding race and ethnicity as factors in determining future
dangerousness.


      2 Section 5 of Article 11.071 provides:
              Sec. 5. (a) If a subsequent application for a writ of habeas corpus is filed
      after filing an initial application, a court may not consider the merits of or
      grant relief based on the subsequent application unless the application
      contains sufficient specific facts establishing that:
              (1) the current claims and issues have not been and could not have been
      presented previously in a timely initial application or in a previously
      considered application filed under this article or Article 11.07 because the
      factual or legal basis for the claim was unavailable on the date the applicant
      filed the previous application;
              (2) by a preponderance of the evidence, but for a violation of the United
      States Constitution no rational juror could have found the applicant guilty
      beyond a reasonable doubt; or
              (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 under Article 37.071, 37.0711, or 37.072.
                                               3
    Case: 13-70034     Document: 00512679404       Page: 4   Date Filed: 06/27/2014



                                  No. 13-70034
      To obtain a COA, Garcia must make “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 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 v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack
v. McDaniel, 529 U.S. 473, 484 (2000)). “[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.     In making the decision whether to grant a COA, this Court’s
examination is limited to a “threshold inquiry,” which consists of “an overview
of the claims in the habeas petition and a general assessment of their merits.”
Id. at 327, 336. This Court cannot deny a COA because it believes that Garcia
ultimately will not prevail on the merits of his claims. Id. at 337. On the other
hand, “issuance of a COA must not be pro forma or a matter of course.” Id.
“While the nature of a capital case is not of itself sufficient to warrant the
issuance of a COA, in a death penalty case any doubts as to whether a COA
should issue must be resolved in the petitioner’s favor.” Ramirez v. Dretke, 398
F.3d 691, 694 (5th Cir. 2005) (brackets, internal quotation marks, and citations
omitted).
      We now turn to address Garcia’s COA requests, beginning with his
intellectual disability claim.
                                 A. Atkins claim
      Garcia argues that he is entitled to a COA to appeal the district court’s
denial of relief on his claim that he is intellectually disabled and thus ineligible
for execution.
      Garcia presented his intellectual disability claim for the first time in his
second state habeas application. In that application, Garcia’s counsel alleged
                                         4
    Case: 13-70034     Document: 00512679404      Page: 5    Date Filed: 06/27/2014



                                  No. 13-70034
that he had interviewed Garcia, his family, and his friends, and had reviewed
Garcia’s “extremely poor school record.”         The application cites Garcia’s
mother’s trial testimony that he was a slow learner who was enrolled in special
education classes. The application also alleges that
       The evidence shows that he has significant limitations in his
      adaptive functioning and that he exhibited these diagnostic
      features before the age of 18. Recent interviews with Garcia, his
      family, and his friends have revealed significant deficits in
      adaptive functioning beyond the revelations at trial that he had
      been in special education classes and was unable to read or write.
The application also states that counsel “is applying” to the state court for
funding for intelligence quotient (IQ) testing and investigation.              The
application concludes with a request that the state court find that the
application satisfies Section 5 of Article 11.071 and remand the case to the trial
court with instructions to appoint counsel and provide funds necessary to
obtain appropriate investigative and expert assistance.
      The application is not accompanied by any evidence.            There are no
affidavits from friends or family members interviewed by counsel, no school
records, and no IQ test scores, notwithstanding the fact that four IQ scores
were available when the application was filed.          The record contains no
application to the state court for funding for expert assistance or IQ testing,
and Garcia does not complain that such an application was made and denied.
      The TCCA dismissed the second state application as an abuse of the writ,
stating that it had reviewed the application and found that the allegations did
not satisfy the requirements of Article 11.071, Section 5.
      In federal court, Garcia supported his Atkins claim with evidence that he
did not present in state court, including five IQ scores (four of which were
available when his state writ was filed), and sworn statements from siblings,
an ex-girlfriend, and a childhood teacher. He alleged that he was examined by

                                        5
    Case: 13-70034     Document: 00512679404    Page: 6   Date Filed: 06/27/2014



                                 No. 13-70034
Dr. Martinez on October 15, 2009, and obtained a full-scale IQ score of 75 on
the Wechsler Adult Intelligence Scales IV. He obtained an IQ score of 100 on
a TONI-2 assessment on July 22, 1993, when he was 13 years old, a score of 91
on a TONI-2 assessment on January 13, 1996, at age 15, a score of 83 on a
TONI-3 assessment on June 21, 2000, and a score of 83 on the WISC-III on
January 25, 1995, when he was 14 years old. Counsel alleged that all of these
scores should be disregarded because they are not as reliable as the Wechsler
and because it was unknown whether proper protocol was followed in the
administration and scoring of the tests.
      The federal petition alleged that school records showed that Garcia was
several grade levels behind in his classes, he repeated third grade, and was
placed in special education classes.       In addition, middle school records
indicated that he remained in special education classes for all of his core
subjects.
      Garcia alleged adaptive deficits in conceptual skills, social skills, and
practical skills.   His elementary school special education teacher, Angela
Costigan, stated in her declaration that Garcia did not have conversational
skills, he could not communicate because he lacked a vocabulary, his reading
was at a first or second grade level, he was placed in special education not only
because of academics, but also because he was unable to socialize on the same
level as other children, he did not understand the difference between addition
and subtraction, he was not capable of making a decision, he never initiated
projects, he did not respond well when things did not go as planned, he could
not tolerate failure, he would not complete difficult tasks, he would respond
with anger and destructiveness when he did not understand things, he was
incapable of thinking on an abstract level, he was a loner, he lacked self-
esteem, he tried to hide the fact that he did not know how to do simple things


                                       6
    Case: 13-70034     Document: 00512679404     Page: 7   Date Filed: 06/27/2014



                                  No. 13-70034
so as to avoid looking stupid, and he was incapable of seeing the long-term
consequences of his actions.
      The declaration of federal habeas counsel’s investigator states that
Garcia’s cousin, Patricia McBen, told the investigator that Garcia had trouble
explaining things in words, that he did not understand when others tried to
explain things to him, that he had trouble understanding the consequences of
his actions, that he was extremely gullible as a child, that he often got in
trouble for doing the wrong things and was beaten by his stepfather because
he did not know the right things to do, that he did not follow rules or directions
because he did not understand what he was supposed to do, that he was unable
to follow simple directions for cooking, that he had a poor concept of time, and
that he was simple-minded and impulsive.
      Garcia’s younger sister, Alexandra Garcia, stated in her declaration that
he was so easily distracted that he would stop talking to people in the middle
of a conversation, that he did not sleep well, that he was unable to make friends
and socialize on the same level as other children, that other students, including
in his special education class, made fun of him and called him names, that
others could get him to do whatever they wanted, even if he thought it would
cause him to get hurt or get into trouble, and that he was not able to read or
write until he was 17 or 18 years old.
      Garcia’s older sister, Priscilla Zamora, stated in her declaration that
Garcia was always scared, that he had problems sleeping, that he would get
frustrated and give up when he could not complete a math problem, and that
he was unable to read or write.
      The district court rejected the State’s contention that Garcia’s Atkins
claim was procedurally defaulted. Instead, it held that the TCCA rejected
Garcia’s Atkins claim on the grounds that he failed to make a prima facie
showing that he is intellectually disabled, which is a merits determination.
                                         7
    Case: 13-70034     Document: 00512679404      Page: 8   Date Filed: 06/27/2014



                                  No. 13-70034
Although the TCCA dismissed Garcia’s second habeas application as an abuse
of the writ, this court has held that
       in the Atkins context, Texas courts have imported an antecedent
      showing of ‘sufficient specific facts’ to merit further review,
      rendering dismissal of such claims [as abuses of the writ] a
      decision on the merits. . . . Thus, a decision that an Atkins petition
      does not make a prima facie showing––and is, therefore, an abuse
      of the writ––is not an independent state law ground.
Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (internal citations and
quotation marks omitted).
      Under Texas law, “[intellectual disability] is a disability characterized
by: (1) significantly subaverage general intellectual functioning”; “(2)
accompanied by related limitations in adaptive functioning; (3) the onset of
which occurs prior to the age of 18.” Blue v. Thaler, 665 F.3d 647, 657–58 (5th
Cir. 2011) (citing Ex parte Briseno, 135 S.W.3d 1, 7–8 (Tex. Crim. App. 2004)).
The TCCA has defined significant “subaverage intellectual functioning . . . as
an IQ of about 70 or below.” Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim.
App. 2010). The TCCA has recognized that because IQ tests have a standard
error of measurement of approximately five points, “any score could actually
represent a score that is five points higher or five points lower than the actual
IQ.” Id. With respect to limitations in adaptive functioning, the TCCA has
stated that “three adaptive-behavior areas are applicable to determining
[intellectual disability]: conceptual skills, social skills, and practical skills.”
Id. Further, the TCCA requires that “the adaptive limitations must be related
to a deficit in intellectual functioning and not a personality disorder.” Id.
      We have held that “when a petitioner makes a prima facie showing of
mental retardation, a state court’s failure to provide him with an opportunity
to develop his claim deprives the state court decision of deference ordinarily
due under . . . AEDPA.” Blue, 665 F.3d at 656. However, states are not

                                        8
    Case: 13-70034     Document: 00512679404       Page: 9   Date Filed: 06/27/2014



                                   No. 13-70034
required to “give hearings to all persons with Atkins claims” because “states
[have] discretion to set gateways to full consideration and to define the manner
in which habeas petitioners may develop their claims.” Id. at 657.
      The district court held that Garcia’s Atkins claim fails, whether reviewed
de novo or under the AEDPA reasonableness standards, because Garcia failed
to demonstrate that he has significantly subaverage intellectual functioning.
      After reviewing the relevant record and evidence, we conclude that
reasonable jurists would not debate the district court’s conclusion that the
TCCA rejected Garcia’s Atkins claim because he failed to make a prima facie
showing of intellectual disability.     In his state habeas application, Garcia
presented no IQ scores, even though four were readily available to him.
Moreover, he made only conclusory allegations of deficits in adaptive
functioning, unsupported by any affidavits, even from readily accessible family
members. Although his application cites his mother’s trial testimony that he
was a slow learner who was enrolled in special education classes, the mother
also testified at trial that Garcia is “not retarded” and that she eventually took
him out of school because he stopped attending classes.
      Furthermore, reasonable jurists also would not debate the district court’s
alternative resolution of this claim under de novo review because, even
considering the evidence Garcia presented for the first time in federal court,
Garcia failed to demonstrate that he has significantly subaverage intellectual
functioning. The district court observed that although on a post-conviction IQ
test, Garcia scored 75, which falls just within the margin of generally
recognized testing error of five points, his actual IQ is as likely to be 80 as it is
to be 70.   The district court noted that the fact that his four other, pre-
conviction, IQ scores ranged from 83 to 100 indicated that his actual IQ is likely
higher than 75. Accordingly, Garcia failed to show that his alleged deficits in


                                         9
    Case: 13-70034    Document: 00512679404     Page: 10   Date Filed: 06/27/2014



                                 No. 13-70034
adaptive behaviors are related to subaverage intellectual functioning, rather
than psychological or environmental factors or a personality disorder.
      Nor does the Supreme Court’s recent decision in Hall v. Florida, 134 S.
Ct. 1986 (2014), cast doubt on our assessment of the debatability of the district
court’s decision. In Hall, the Court declared unconstitutional a Florida statute
that had been interpreted by the Florida Supreme Court as establishing an IQ
score of 70 as a mandatory cutoff, such “that a person whose test score is above
70, including a score within the margin for measurement error, does not have
an intellectual disability and is barred from presenting other evidence that
would show his faculties are limited.” Id. at 1994. The Court concluded that
“an individual with an IQ test score ‘between 70 and 75 or lower,’ may show
intellectual disability by presenting additional evidence regarding difficulties
in adaptive functioning.” Id. at 2000 (internal citation omitted). Texas does
not preclude individuals with an IQ score between 70 and 75 from presenting
additional evidence of difficulties in adaptive functioning in support of an
intellectual disability claim. Garcia simply failed to produce any evidence at
all in the state court proceedings, and the evidence he presented for the first
time in federal court fails to present a debatable Atkins claim of intellectual
disability.
      We now turn to consider Garcia’s claim regarding Dr. Quijano’s
testimony about race and ethnicity as a statistical factor for future
dangerousness.
                  B. Ineffective Assistance of Counsel Claim
      Garcia contends that he is entitled to a COA for his claim that trial
counsel rendered ineffective assistance by choosing Dr. Quijano as their
classification expert and eliciting testimony from him about race and ethnicity
as factors for determining future dangerousness.


                                       10
   Case: 13-70034     Document: 00512679404      Page: 11   Date Filed: 06/27/2014



                                  No. 13-70034
      On direct examination, Dr. Quijano testified that statistical factors that
are predictive of future dangerousness include past violent behavior, the age
and gender of the defendant (older defendants are less likely to be violent in
the future and male defendants are more likely than female defendants to be
violent), socio-economic status, the lack of steady employment, the use of a
weapon, and the use of drugs or alcohol. Defense counsel then asked Dr.
Quijano whether race plays a role. He responded: “The race plays a role in
that the – among dangerous people, minority people are overrepresented in
this population. And, so, blacks and Hispanics are overrepresented in the . . .
so-called dangerous population.” Defense counsel then asked whether some of
those factors were eliminated in a prison environment, to which Dr. Quijano
responded that “[m]ost of these factors are either eliminated or kept to a
minimum, reduced to a minimum within the prison setting. Those factors that
are biographical [sic] are, of course, not eliminated, your gender and your race.”
      The bulk of Dr. Quijano’s testimony, however, described the conditions
under which Garcia would serve a life sentence, the security measures
available in the Texas prison system, and how such measures were effective in
eliminating or reducing the risk of violence. He testified about a videotape of
a visit to the Texas Department of Criminal Justice Michael Unit on March 4,
1999, which he directed, to illustrate some of the safety measures that the
prison system uses in the higher level security areas of the prison.          The
videotape was admitted into evidence and shown to the jury. Dr. Quijano
stopped and explained various aspects of the security measures during the
showing of the videotape.
      On direct appeal, Garcia argued that his trial counsel rendered
ineffective assistance by eliciting the testimony about race and ethnicity from
Dr. Quijano. The TCCA held that Garcia failed to demonstrate that his trial
counsel’s performance fell below an objective standard of reasonableness. The
                                       11
    Case: 13-70034       Document: 00512679404         Page: 12     Date Filed: 06/27/2014



                                      No. 13-70034
court stated that counsel might have been attempting, with Dr. Quijano’s
testimony, to do two things: (1) place before the jury all the factors it might
use against Garcia, either properly or improperly, in its assessment of his
future dangerousness and (2) persuade the jury that, despite all of those
negative factors, Garcia would not be a future danger if imprisoned for life
because the prison system’s procedures and techniques would control or
eliminate his tendency toward violence. The court stated that in the light of
the State’s evidence of Garcia’s long and violent criminal record, 3 it could not
say that counsel’s conduct could not be considered sound trial strategy.
       Garcia raised the claim again in his first state habeas application. In its
response, the State submitted an affidavit from lead trial counsel, Ron Hayes.
Hayes stated in his affidavit that the defense hired Dr. Quijano to testify as an
expert on the Texas prison system and how the prison system worked to
demonstrate that Garcia would not be a future danger if he were given a life
sentence. Hayes stated that he had reviewed Dr. Quijano’s trial testimony and
that Dr. Quijano did not testify that Hispanics or African Americans were more
dangerous, just that they were overrepresented, something that can occur if a
group is not treated the same or as fairly as other groups. He stated that Dr.
Quijano’s testimony (76 pages of direct testimony and 38 pages of cross-
examination) is centered on how the prison system can work to alleviate



       3  The TCCA described the evidence of future dangerousness at trial as follows: (1) on
June 24, 1992, when Garcia was 12 years old, he committed the offense of terroristic threat;
(2) on May 6, 1993, when Garcia was 13 years old, he committed misdemeanor theft; (3) on
August 31, 1998, when Garcia was 18 years old, he committed three separate aggravated
robberies; (4) on September 15, 1998, Garcia again committed aggravated robbery; (5) on
September 17, 1998, Garcia shot and killed Hugo Solano during the course of a robbery; (6)
on the same day he murdered Solano, Garcia also committed two aggravated robberies; (7)
on September 20, 1998, Garcia committed aggravated robbery and attempted capital murder;
(8) on September 21, 1998, Garcia committed aggravated robbery and attempted capital
murder; and (9) in November 1999, while incarcerated in the Harris County Jail awaiting
trial, he committed misdemeanor assault.
                                             12
   Case: 13-70034    Document: 00512679404     Page: 13   Date Filed: 06/27/2014



                                No. 13-70034
dangerousness. He noted that in closing arguments, counsel relied on Dr.
Quijano’s testimony as to where Garcia would be housed in prison if he got a
life sentence and to argue that the set-up of the prison system would prevent
Garcia from being a danger.      He concluded that the defense strategy in
presenting Dr. Quijano’s testimony as to give the jury as much information as
possible about the future dangerousness special issue and about the prison
system and how prison structure can decrease or eliminate dangerousness.
      The state habeas trial court found that Dr. Quijano testified extensively
about the structure of prison controlling or eliminating many dangerousness
factors, the difference in behavior when someone is strictly supervised, the
prison system’s knowledge of an inmate’s prior behavior and history, the prison
classification system and accompanying tests and standards, the prison’s
interest in safety and rehabilitation, and how a lengthy sentence
“institutionalizes” an inmate so that he is not as dangerous as an inmate
serving a shorter sentence. The court found that Dr. Quijano did not testify
that Garcia was more dangerous because he is Hispanic or that Hispanics are
more dangerous than other groups, and that Dr. Quijano’s brief remarks about
“blacks and Hispanics” being overrepresented could have been interpreted as
indicating that the criminal justice system was unfair to them. The court found
that the prosecution did not question Dr. Quijano about his testimony
concerning overrepresentation; that neither side’s counsel referred to Dr.
Quijano’s brief remarks during punishment argument; and that defense
counsel’s punishment argument emphasized Dr. Quijano’s extensive testimony
about the prison system’s ability to lessen or eliminate a person’s
dangerousness. The court found, based on the credible affidavit of Hayes, that
counsel presented Dr. Quijano to testify as an expert on the Texas prison
system and its security measures and classifications and to show how the
prison system can work to alleviate dangerousness. The court found that trial
                                      13
   Case: 13-70034     Document: 00512679404     Page: 14   Date Filed: 06/27/2014



                                 No. 13-70034
counsel did not perform deficiently by employing the reasonable trial strategy
of presenting as much evidence as possible concerning the safety of prison and
its stabilizing effects on long-term inmates, especially in the light of the
extensive punishment evidence of Garcia’s violent conduct.
      The state habeas trial court held, in the alternative, that Garcia failed
to demonstrate prejudice because Dr. Quijano’s comment concerning
overrepresentation was an isolated remark among extensive testimony about
the security measures and classification system of prison, and because of the
lack of questioning by either trial counsel or the State about such comment,
the non-specific nature of such comment, and the lack of jury argument
concerning such comment.
      The TCCA found the claim procedurally barred because it had been
raised and rejected on direct appeal. Alternatively, it adopted the trial court’s
findings and conclusions and rejected the claim on the merits.
      The district court rejected the State’s contention that this claim is
procedurally defaulted. It held that although the TCCA held that the claim
was procedurally barred because it had been raised and rejected on direct
appeal, the claim was nevertheless exhausted when Garcia presented it on
direct appeal.
      The district court held that in the light of the State’s extensive evidence
of Garcia’s history of violent conduct, including evidence that Garcia
committed multiple robberies, assaults, and shootings, the state court
reasonably concluded that Dr. Quijano’s isolated comment about race and
ethnicity was not harmful, i.e., that there is not a reasonable probability that
the result would have been different had Dr. Quijano not so testified.
      We conclude that reasonable jurists would not debate the district court’s
resolution of this claim. Dr. Quijano did not testify that Hispanics are more
likely to be dangerous because of their ethnicity or that Garcia’s Hispanic
                                       14
   Case: 13-70034     Document: 00512679404     Page: 15   Date Filed: 06/27/2014



                                 No. 13-70034
ethnicity increased the likelihood that he would be dangerous in the future.
Instead, he identified race and ethnicity, along with past violent behavior, age,
gender, socio-economic status, the lack of steady employment, the use of a
weapon, and the use of drugs or alcohol as statistical factors, and pointed out
that Hispanics and African-Americans were overrepresented in the criminal
justice system. Neither the prosecution nor the defense mentioned race or
ethnicity in their arguments to the jury. Considering Dr. Quijano’s testimony
as a whole, his testimony about how the prison system can decrease or
eliminate dangerousness was favorable to Garcia. In the light of the State’s
overwhelming evidence of future dangerousness, reasonable jurists would not
debate the district court’s conclusion that there is not a reasonable probability
that the jury would have answered the special issues differently in the absence
of Dr. Quijano’s isolated testimony about race and ethnicity.
                                      III.
      Garcia has failed to make a substantial showing of the denial of a
constitutional right. His request for a COA is therefore
                                                                      DENIED.




                                       15
