     Case: 16-70001    Document: 00513614771      Page: 1    Date Filed: 07/28/2016




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

                                  No. 16-70001
                                                                             Fifth Circuit

                                                                           FILED
                                                                       July 28, 2016

JUAN RAMON MEZA SEGUNDO,                                              Lyle W. Cayce
                                                                           Clerk
              Petitioner - Appellant

v.

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

              Respondent - Appellee




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


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Juan Ramon Meza Segundo applies for a certificate of appealability
(“COA”) to appeal the denial of his federal petition for a writ of habeas corpus.
He claims that under Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v.
Thaler, 133 S. Ct. 1911 (2013), he is entitled to relief from his death sentence
because of the ineffective assistance of his trial counsel in failing to investigate
and develop evidence of intellectual disability. For the reasons that follow, we
deny a COA.
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                                              I.
       In 1986, Segundo broke into eleven-year-old Vanessa Villa’s bedroom,
raped, and strangled her. He was not a suspect, however, until 2005 when a
routine search of the Texas CODIS 1 database matched his DNA with semen
samples found at the crime scene. Following a jury trial, Segundo was
convicted in Texas state court. On behalf of the defense, a clinical
neuropsychologist, Dr. Alan Hopewell, evaluated Segundo and, at the
punishment stage of trial, testified that his “extensive history of inhalant
abuse” and his failure to have a “stimulating background upbringing” may
have caused significant brain dysfunction. Dr. Hopewell opined, however, that
Segundo’s IQ tested at a 75 and that he was not intellectually disabled. 2 See
Ex parte Hearn, 310 S.W.3d 424, 430 (Tex. Crim. App. 2010) (explaining that
“about 70” represents a “rough ceiling” for IQ levels, “above which a finding of
mental retardation in the capital context is precluded”). Segundo was
sentenced to death. His conviction and sentence were affirmed on direct
review. Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008).
       In his state habeas proceedings, Segundo raised thirteen claims for
relief, including an Atkins claim. See Atkins v. Virginia, 536 U.S. 304 (2002)
(prohibiting as “cruel and unusual punishment” the execution of intellectually
disabled criminals). The state habeas court conducted an evidentiary hearing
on his Atkins claim, and found that Segundo failed to satisfy either the
intellectual functioning prong or the early onset prong required for intellectual
disability under Texas law. 3 The state habeas court noted that all the “experts



       1 Combined DNA Index System.
       2 In making this assessment, Dr. Hopewell reviewed the results of two intellectual
functioning tests, the WAIS-III and the RBANS, which were administered by Dr. Kelly
Goodness, a forensic psychologist also retained by the defense.
       3 Under Texas law, an individual is intellectually disabled—such that Atkins

precludes the imposition of a death sentence—if he meets three criteria: (1) significantly sub-
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                                        No. 16-70001
agreed that [Segundo] did not manifest significant sub-average general
intellectual functioning.” 4 The Texas Court of Criminal Appeals adopted the
state habeas court’s findings and denied Segundo’s habeas petition. Ex parte
Segundo, No. WR-70963-01, 2010 WL 4978402 (Tex. Crim. App. Dec. 8, 2010).
       Segundo then filed a federal habeas petition contending, in part, that his
trial counsel’s failure to fully investigate his intellectual disability rendered
counsel’s performance constitutionally inadequate—a claim that Segundo did
not raise in state court and thus procedurally defaulted. 5 While his habeas
petition was pending, the Supreme Court decided Trevino v. Thaler, 133 S. Ct.
1911 (2013), which applied Martinez v. Ryan, 132 S. Ct. 1309 (2012) to Texas
inmates. Under Martinez, habeas petitioners may attempt to show cause for
default by demonstrating the ineffectiveness of state habeas counsel in failing
to raise a substantial ineffective-assistance-of-trial-counsel (“IATC”) claim. 132
S. Ct. at 1316; see Trevino, 133 S. Ct. at 1921 (explaining that “the Texas
procedural system—as a matter of its structure, design, and operation—does
not offer most defendants a meaningful opportunity to present a claim of
ineffective assistance of trial counsel on direct appeal”). 6 The district court
requested additional briefing on the application of Martinez and Trevino to
Segundo’s unexhausted IATC claim.


average intellectual functioning; (2) deficits in adaptive behavior; and (3) onset before age 18.
Henderson v. Stephens, 791 F.3d 567, 579 (5th Cir. 2015). To make the requisite showing, all
three elements must be proven. See Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).
        4 The defense presented Dr. Stephen Thorne, who evaluated Segundo, reviewed his

records and prior intellectual testing, and concluded that Segundo does not meet the criteria
for intellectual disability. The state called Dr. Randall Price, who testified that Segundo’s IQ
was above 78, that he had neither significant subaverage intellectual functioning nor
significant deficits in adaptive function, and that he was not intellectually disabled.
        5 Segundo also filed requests for funding to hire a mitigation investigator, which were

denied by the district court. And he filed a motion to expand the record, which the district
court granted, to contain an affidavit by Dr. Stephen Greenspan.
        6 A finding by the district court that Martinez applies works only to allow federal

district court merits review of claims that are otherwise procedurally barred. See Newbury v.
Stephens, 756 F.3d 850, 872 (5th Cir. 2014).
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                                No. 16-70001
      In supplemental briefing, Segundo acknowledged that he failed to
present his IATC claim in state court thereby rendering his unexhausted claim
procedurally barred. But he argued that an evidentiary hearing and further
fact finding was necessary to determine whether the exception carved out in
Martinez applied to excuse his procedural default. Specifically, Segundo
complained that his trial counsel did not properly inquire into his deficits in
adaptive behavior, which, if adequately researched, would have led the experts
to conclude that he is intellectually disabled. In support, Segundo offered a
declaration from a new expert, Dr. Stephen Greenspan, which criticized the
prior experts’ methodologies and evaluations.
      Without addressing Segundo’s request for an evidentiary hearing, the
district court found the Martinez exception inapplicable, dismissed his IATC
claim as procedurally barred, and denied his petition for habeas relief. The
district court reviewed the state court record and concluded that Segundo
failed to show a substantial IATC claim. See Martinez, 132 S. Ct. at 1318–19.
The district court noted that trial counsel obtained “the assistance of a
mitigation investigator, fact investigator, and two mental-health experts at
trial who ultimately found [Segundo] not to be intellectually disabled.”
Moreover, Segundo had the assistance of another mental-health expert at his
state habeas proceedings. Because none of the experts reported that they were
unable to make a determination of intellectual disability due to incomplete
information, the district court found that Segundo failed to show ineffective
assistance of counsel. The district court explained that Segundo cannot now
demonstrate that his prior counsel was deficient either by contending that his
prior experts needed additional information or by pointing to a new expert who




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                                       No. 16-70001
disagrees with the findings of previous examiners. 7 The district court denied a
COA on all issues. Segundo filed a timely Notice of Appeal.
                                             II.
       “[W]hen a habeas corpus petitioner seeks to initiate an appeal of the
dismissal of a habeas corpus petition . . . the right to appeal is governed by the
certificate of appealability (COA) requirements.” Slack v. McDaniel, 529 U.S.
473, 478 (2000). Section 2253 of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) addresses appeals of denials of habeas corpus petitions, and
provides that an “appeal may not be taken” from a final order in a habeas
corpus proceeding without a COA. 28 U.S.C. § 2253(c)(1). A COA may issue
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
       “Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529
U.S. at 484. “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, 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.
                                             III.
       Segundo argues that the district court unreasonably denied him an
evidentiary hearing to develop cause for and prejudice from his defaulted IATC



       7See, e.g., Fairbank v. Ayers, 650 F.3d 1243, 1252 (9th Cir. 2011) (“Later disagreement
by other experts as to the conclusions does not demonstrate a violation of Strickland.”).
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                                    No. 16-70001
claim. He asserts that he presented sufficient evidence of the ineffectiveness of
his trial counsel to warrant additional fact-finding. Specifically, he points to
the affidavit of Dr. Greenspan and claims that his trial counsel was ineffective
for failing to fully investigate his intellectual disability, specifically his deficits
in adaptive behavior, and maintains that counsel failed to provide his experts
with a background and social history that would have led to a diagnosis of
intellectual disability.
      Federal merits-review of a procedurally barred claim is permitted when
the petitioner is able to “demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law.” Hughes v. Quarterman, 530
F.3d 336, 341 (5th Cir. 2008); see Martinez, 132 S. Ct. at 1320. Applying
Martinez in the COA context, we have held that “to succeed in establishing
cause, the petitioner must show (1) that his claim of ineffective assistance of
counsel at trial is substantial—i.e., has some merit—and (2) that habeas
counsel was ineffective in failing to present those claims in his first state
habeas proceeding.” Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013) (citing
Martinez, 132 S. Ct. at 1318); see Newbury v. Stephens, 756 F.3d 850, 872 (5th
Cir. 2014) (explaining that “[e]ven if a petitioner makes both of the showings
required under Martinez,” that “merely allows a federal court to consider the
merits of a claim that otherwise would have been procedurally defaulted”). To
establish ineffective assistance of counsel, a petitioner must show that
counsel’s performance was deficient and that he was prejudiced by the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The
likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
      Here, the district court thoroughly and carefully considered the
extensive state record and the evidence that Segundo presented, including the
affidavit of Dr. Greenspan presented for the first time in federal court. The
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                                 No. 16-70001
district court concluded that Segundo failed to make either showing required
under Martinez: First, Segundo’s IATC claim lacked merit—because he can
demonstrate neither deficient performance nor prejudice under Strickland—
and second, habeas counsel was not ineffective in failing to raise a meritless
claim. We agree.
      With respect to the denial of an evidentiary hearing, we decline to hold
that Martinez mandates an opportunity for additional fact-finding in support
of cause and prejudice. The Supreme Court, in Martinez, created a narrow
exception to procedural default that “merely allows” federal merits-review “of
a claim that otherwise would have been procedurally defaulted.” 132 S. Ct. at
1320. Martinez and Trevino protect Texas habeas petitioners from completely
forfeiting an IATC claim; neither entitles petitioners to an evidentiary hearing
in federal court in order to develop such a claim. Reading Martinez to create
an affirmative right to an evidentiary hearing would effectively guarantee a
hearing for every petitioner who raises an unexhausted IATC claim and argues
that Martinez applies. See Newbury, 756 F.3d at 868–71 (rejecting petitioner’s
contention that he was owed resources necessary to develop facts in support of
his IATC claim under Martinez); see also Ayestas v. Stephens, 817 F.3d 888,
896 (5th Cir. 2016) (per curiam) (holding that district court did not abuse its
discretion in declining to authorize a mitigation specialist prior to determining
viability of claim under Martinez).
      Segundo argues that cause and prejudice cases are inherently fact-
specific and contextual. This is true. But there “must be a viable constitutional
claim, not a meritless one, and not simply a search for evidence that is
supplemental to evidence already presented.” Ayestas, 817 F.3d at 896. The
decision to grant an evidentiary hearing “rests in the discretion of the district
court.” See Schriro v. Landrigan, 550 U.S. 465, 468, 474 (2007) (“It follows that
if the record refutes the applicant’s factual allegations or otherwise precludes
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                                      No. 16-70001
habeas relief, a district court is not required to hold an evidentiary hearing.”);
see also McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998) (“The
district court had sufficient facts before it to make an informed decision on the
merits . . . and, accordingly, did not abuse its discretion in refusing to hold an
evidentiary hearing.”). Here, the district court thoroughly reviewed the record
of the state-court proceedings, and made specific findings of fact in denying
relief. Given the extent of the factual development during trial and during the
state habeas proceedings, the district court did not abuse its discretion in
determining it had sufficient evidence and declining to hold a hearing.
       We also hold that reasonable jurists would not debate that Segundo
failed to state a claim that would allow for merits review under Martinez. 8
Segundo does not raise a substantial claim of ineffective assistance of trial
counsel and therefore cannot show that his procedural default is excused.
Strickland     requires     both    deficient    performance       and    prejudice.     “In
investigating potential mitigating evidence, counsel must either (1) undertake
a reasonable investigation or (2) make an informed strategic decision that
investigation is unnecessary.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir.
2013) (per curiam). There is no evidence suggesting that Segundo’s trial
counsel conducted less than a reasonable investigation.
       The record makes clear that Segundo’s trial counsel obtained the
services of a mitigation specialist, fact investigator, and two mental-health
experts. These experts and specialists conducted multiple interviews with




       8 We construe the district court as denying habeas relief on procedural grounds. The
district court applied the two-prong Martinez test, determined that Segundo could not
demonstrate cause for his default, found Martinez inapplicable and therefore held Segundo’s
claim procedurally defaulted, and declined to proceed to merits review. See Reed v. Stephens,
739 F.3d 753, 774 & n.11 (5th Cir. 2014) (denying a COA because petitioner failed to state a
debatable IATC claim).

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                                       No. 16-70001
Segundo and his family, performed psychological evaluations, and reviewed
medical records. Segundo claims that trial counsel failed to provide necessary
social history, which would have changed the experts’ conclusions that he is
not intellectually disabled. But none of the experts retained by trial counsel
indicated that they were missing information needed to form an accurate
conclusion that Segundo is not intellectually disabled. 9 “Counsel should be
permitted to rely upon the objectively reasonable evaluations and opinions of
expert witnesses without worrying that a reviewing court will substitute its
own judgment, with the inevitable hindsight that a bad outcome creates, and
rule that his performance was substandard for doing so.” Smith v. Cockrell,
311 F.3d 661, 676–77 (5th Cir. 2002), overruled on other grounds by Tennard
v. Dretke, 542 U.S. 274 (2004); see Turner v. Epps, 412 F. App’x 696, 704 (5th
Cir. 2011) (“While counsel cannot completely abdicate a responsibility to
conduct a pre-trial investigation simply by hiring an expert, counsel should be
able to rely on that expert to alert counsel to additional needed
information . . . .”).
       Given trial counsel’s investigation and reliance on reasonable expert
evaluations, Segundo cannot overcome the strong presumption that counsel’s
representation fell within the wide range of reasonable professional assistance.
Thus, we hold that Segundo fails to present a substantial IATC claim, resulting
in the inapplicability of Martinez. And we conclude that there is no debatability
of the underlying constitutional claim. Because reasonable jurists could not
debate that Segundo’s petition fails to state a valid claim, we deny a COA.




       9 In a post-judgment motion, Segundo brought to the district court’s attention that Dr.
Hopewell and Dr. Goodness had requested, at the outset, a social history from counsel. The
district court, however, denied Segundo’s motion because there is no indication that the
experts believed themselves incapable of forming an opinion on his intellectual disability
absent such evidence.
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