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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 15-70017                                FILED
                                                                              June 24, 2016
                                                                             Lyle W. Cayce
RAYMOND DELEON MARTINEZ,                                                          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 Southern District of Texas
                             USDC No. 4:13-CV-1994


Before JONES, DENNIS, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Raymond Deleon Martinez stands before us twice convicted of the 1983
capital murder of Herman Chavis and three times sentenced to death for that
crime. His case has seen three rounds of review on direct appeal, three rounds
of state habeas review, and is now on its second round of federal habeas review.
The district court in this round of federal habeas litigation denied his petition
and did not issue a Certificate of Appealability (“COA”). He seeks a COA from


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-70017
this court. We grant a COA on ineffectiveness claims concerning autopsy
reports and medical examiner testimony, deny a COA on Martinez’s other
claims, deny habeas relief, and affirm the district court’s denial of funds to
develop one of his claims.
                                       I
      The facts of Martinez’s crime have been well documented in numerous
state and federal courts. This court earlier summarized them as follows:


             On July 13, 1983, Martinez, accompanied by two other men,
      entered the Long Branch Saloon owned and operated by Herman
      Chavis, the victim, and his wife, Pauline Chavis Smith. Smith
      recognized the three men from the previous Monday and Tuesday
      nights, when they came in, purchased beer, took only one sip, and
      left. On this date, the men ordered three Miller Lite beers and
      stood at the bar. Soon thereafter, one of the men locked the front
      door, produced a revolver, and told everyone to “hit the floor.”
      Martinez also brandished a revolver and threatened a patron. He
      then grabbed the barmaid, shoved the revolver into her ribs, and
      demanded the money from the cash drawer. Martinez was seen
      reaching into the drawer, although it was later determined that he
      took no money. A verbal exchange between Chavis and the men
      ensued, after which Martinez pointed his gun at Chavis. Several
      shots were fired. Chavis later died of a gunshot wound to the back
      of the head and a gunshot wound through the back that lodged in
      his right arm.


Martinez v. Dretke, 404 F.3d 878, 880-81 (5th Cir. 2005), cert. denied 546 U.S.
980, 126 S. Ct. 550 (2005) (footnotes and citations omitted).
      Martinez was initially convicted on March 15, 1984 and sentenced to
death. See id. at 880 n.1. This conviction and sentence were subsequently
reversed and remanded on direct appeal due to jury-selection errors. Martinez
v. State, 763 S.W.2d 413 (Tex. Crim. App. 1988). A second trial resulted in
another guilty conviction and death sentence, which were affirmed on direct
appeal. Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993) (en banc),
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reh’g denied, (October 20, 1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2765
(1994). Martinez’s state application for a writ of habeas corpus based on
ineffective assistance of counsel was rejected. See Martinez v. Dretke, 404 F.3d
at 882-83; Ex parte Martinez, No. 42,342–01 (Tex. Crim. App. 1999).
      He then filed a § 2254 petition for a writ of habeas corpus in federal
district court in 2001.
      On February 6, 2003, the district court held an evidentiary hearing
      on the following issues: (1) whether Martinez was mentally ill at
      the time of his offense; (2) whether his trial counsel was ineffective
      for failing to present an insanity defense; and (3) whether there
      was cause for any procedural default of these claims. At the
      hearing, Martinez submitted evidence that he has a family history
      of mental illness, was exposed to neurotoxins in utero and through
      adolescence when he picked cotton as a migrant farm worker, was
      physically abused by an older brother, was physically abused by
      prison guards while in care of the Texas Youth Commission,
      suffered untreated epileptic seizures, and was previously adjudged
      not guilty by reason of insanity for an unrelated crime in 1967.


Martinez v. Dretke, 404 F.3d at 883 (footnote omitted). The district court
denied his petition and denied a COA.
      On December 19, 2003, he asked this court for a COA, claiming
ineffective assistance of counsel by his counsel’s failure to:
      (1) conduct an adequate investigation into his mental health
      background; (2) introduce evidence of neurological impairment and
      a prior adjudication of not guilty by reason of insanity as a
      mitigating factor and assert an insanity defense during the
      guilt/innocence phase of his trial; and (3) introduce evidence of his
      neurological impairment as a mitigating factor during the
      punishment phase of his trial.


Id. We denied a COA on the first issue and held that his counsel had conducted
an adequate investigation of his background, including his alleged exposure to
neurotoxins in utero and his use of anti-psychotic medications. Id. at 885-87.

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We invited additional briefing on the latter two issues and granted a COA. Id.
at 887. Nonetheless, we ultimately denied habeas as to all of his claims. We
held that his trial counsel’s failure to advance an insanity defense would
constitute a fraud on the court given psychological evaluations that concluded
Martinez did not suffer from any psychological disorders; testimony from his
own expert witness that his in utero and adolescent exposure to pesticides
would support only a post-hoc conjecture of a brain disorder; the lack of any of
his counsels’ personal experiences that would suggest their awareness of
potential disorders; and the availability of a viable alternative defense
supported by the record. Id. at 888-89. Further, we held that “counsel’s
decision not to introduce evidence of neurological impairment (i.e. organic
brain damage) as mitigating evidence at the punishment phase constituted
reasonable and protected professional judgment” because evidence of organic
brain injury is a “double-edged sword.” Id. at 889; see also Kitchens v. Johnson,
190 F.3d 698, 702-03 (5th Cir. 1999).
      After we denied habeas relief, Martinez filed a subsequent state habeas
application, raising a claim he had argued at his second trial and 1993 direct
appeal, but not in his first state habeas application in 1997. Ex parte Martinez,
233 S.W.3d 319 (Tex. Crim. App. 2007). The state court held that because of
intervening case law, this was not an abuse of the writ, and granted habeas
relief. Id. at 322-23. Martinez received a new trial as to punishment only.
      The third punishment trial was held in 2009, and Martinez was
sentenced to death a third time. At this trial, the jury heard the facts of the
Chavis murder as well as testimony regarding Martinez’s criminal history,
violence and dangerousness in prison, and gang affiliation. See Martinez v.
State, 327 S.W.3d 727, 731-35 (Tex. Crim. App. 2010), cert. denied 563 U.S.
1037, 131 S. Ct. 2966 (2011) (more completely summarizing the facts before
the 2009 jury).
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      The 2009 sentencing jury heard about Martinez’s long and violent
criminal history. That history began when he was fifteen and was sent to
juvenile prison for statutory rape of a twelve-year-old girl.     Within a few
months of his release, he was adjudicated delinquent and sent back to juvenile
detention. After his release at age eighteen, he was sentenced to a two-year
prison term for burglary in 1964.     He attempted to escape in 1965.        He
committed burglary in 1967, but was found not guilty by reason of insanity.
His sanity restored, he was released in 1969, but he went on to commit four
robberies (two armed), one theft of an automobile, and an escape from jail while
in custody. He received a total sentence of 20 years for these crimes. He lived
with his family after his parole in 1982. He terrorized them, bragged to them
about crimes he committed while in prison, and recounted robberies and
assaults he committed in the Fort Worth area.
      The jury heard testimony about his crime spree that led to the deaths of
five people in 1983. In addition to the July 13 robbery of the Long Branch
Saloon and the murder of Herman Chavis for which he had been convicted, he
committed armed robbery of two other saloons in Houston on July 11 and
July 12. The July 11 armed robbery resulted in the death of Moses Mendez,
but it was never clearly established who shot Mendez. Martinez then went to
Fort Worth to stay with his sister, Julia Gonzales. On July 15, he shot her
dead on the side of the road and shot her boyfriend, Guillermo Chavez, seven
times in a car, then ransacked their home. Martinez returned to Houston,
where he met a prostitute named Traci Pelkey. On July 21, he killed her by
hitting her on the head with his gun and then shooting her three times. He
was arrested on July 23, 1983 and has been in custody ever since.
      The 2009 sentencing jury also heard testimony that Martinez has been
a particularly dangerous and violent inmate.         During his incarceration
beginning in 1969, he was violent toward other inmates, often stabbing them
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                                 No. 15-70017
with homemade weapons or attacking them with little provocation. He was
paroled in 1982 and rearrested in 1983. Since then, he has 34 documented
disciplinary incidents between 1986 and 2005, which likely understates the
total number because it does not include incidents that may have occurred
while he was in county (as opposed to state) custody. Four of the incidents are
classified as minor, and 30 are classified as major. Sixteen are assaults on
correctional officers and two are assaults on inmates. In February 2002, he
encouraged other inmates to kill a prison guard they had taken hostage and
then interfered with the ability of other guards to free the hostage. In June
2002 he made a homemade spear and threw it at a prison guard. There are
numerous documented incidences in which Martinez spat upon or threw other
bodily fluids at correctional officers and threatened them with physical
violence. He managed to unlock his cell door in 2008 and attacked a fellow
inmate, then bragged about it. He also bragged to his niece, Laura Escoto,
during her visits, about assaults and rapes he committed while in prison and
asserted that he had “killed the wrong sister,” referring to his killing of
Gonzales. He then threatened Escoto when she decided she no longer wanted
to continue visiting him in prison. In 2008, he wrote several letters to family
members detailing his criminal exploits both in and out of prison. His family
members testified at trial that he showed little remorse and referred to himself
as a “psychopath.”
      The sentencing jury heard testimony that Martinez is a known affiliate,
and indeed organizer and leader, of the Texas Syndicate prison gang. The jury
heard testimony that he killed those who opposed formation of the gang.
During his brief period out of prison between 1981 and 1983, Martinez’s father
attempted to help him find a job. Martinez was more interested in establishing
a methamphetamine or marijuana business to generate money for the gang.
To do so, he went to California, where he shot and killed the man who provided
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                                     No. 15-70017
him with the chemicals needed to start “cooking” the drugs. In early 1983, he
checked himself into a mental hospital so he could stall until a friend and fellow
gang member was released from prison. He was discharged after assaulting
someone at the facility. In May 1983, he met a girlfriend named Mary Salazar
who was a teenage runaway. He attempted to recruit her to join the Texas
Syndicate and forced her to prostitute herself. She accompanied him on his
1983 crime spree and testified to that at his trial.
      After hearing all of this evidence, the jury sentenced Martinez to death
for a third time. The sentence was affirmed on direct appeal. Martinez v. State,
327 S.W.3d 727 (Tex. Crim. App. 2010), cert. denied 131 S. Ct. 2966 (2011). His
state habeas application was denied. Ex parte Martinez, No. 42,342-03 (Tex.
Crim. App. June 26, 2013). He then filed the instant § 2254 petition with the
district court in 2013. It denied relief in all respects and denied a COA.
Martinez v. Stephens, 2015 WL 1282199 (S.D. Tex. 2015). He now seeks a COA
from this court.
      The district court meticulously considered the following claims of
ineffective assistance of his 2009 trial counsel: (1) counsel did not investigate
whether Martinez was ineligible for execution under Atkins v. Virginia,
536 U.S. 304, 122 S. Ct. 2242 (2002), because he is intellectually disabled;
(2) counsel did not object under Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354 (2004), to a medical examiner’s testimony about autopsies he
had neither performed nor witnessed, nor (3) to introduction of those autopsy
reports; 1 (4) counsel did not present evidence that Martinez suffered from
organic brain damage as a result of his exposure to organophosphate



      1  The district court considered the two distinct Confrontation Clause claims as one,
referring at times in its analysis to the testimony and at times to the reports themselves.
These, however, are two distinct claims that we will refer to separately or as “autopsy
evidence.”
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pesticides; and (5) counsel did not object to allegedly improper questioning and
argument by the prosecutor regarding Martinez’s sexuality. Martinez raises
an additional claim to this court: (6) that the district court erred in denying
Martinez’s request for funds to develop his Atkins claim.
      We will consider the first and sixth issues together; the second and third
issues together; and the fourth and fifth issues independently.
                                        II
      Since Martinez’s habeas petition complains of detention that “arises out
of process issued by a State court,” he must obtain a COA before we may hear
his appeal. 28 U.S.C. § 2253(c)(1)(a). 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); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct.
3383, 3394 (1983). A COA is a “jurisdictional prerequisite” such that “until a
COA has been issued federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322,
336, 123 S. Ct. 1029, 1039 (2003). “Under the controlling standard, a petitioner
must show 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.” Id. (internal quotations and alterations omitted) (quoting Slack v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04 (2000)); see also
Barefoot, 463 U.S. at 893, 103 S. Ct. at 3394. “This threshold inquiry does not
require full consideration of the factual or legal bases adduced in support of
the claims,” but instead “an overview of the claims in the habeas petition and
a general assessment of their merits.” Miller-El, 537 U.S. at 336, 123 S. Ct. at
1039. To obtain a COA where the district court reached the merits of the
constitutional claim, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
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                                     No. 15-70017
debatable or wrong.” Slack, 529 U.S. at 484, 120 S. Ct. at 1604. Where the
district court dismissed a claim on procedural grounds (such as failure to
exhaust in state habeas proceedings) without reaching the merits, then “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. In death penalty
cases, we resolve any doubts in favor of granting a COA. See Martinez v.
Dretke, 404 F.3d at 884.
       Upon grant of a COA, we apply AEDPA standards to determine whether
the petitioner is entitled to habeas relief. Those standards will be discussed as
they apply to the various claims Martinez has raised.
                                           III
       We first consider Martinez’s Atkins claim, the only one he presented to
the state habeas court. We also consider the district court’s denial of funding
to develop that claim.
                                            A
       Martinez asserts that his counsel at his third sentencing hearing were
ineffective for failing to conduct a reasonable investigation into, and to present
evidence about whether he is intellectually disabled, 2 and therefore ineligible
for execution under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002).
Because this claim was fully adjudicated and ruled on by the state habeas
court, § 2254(d) applies. See Williams v. Stephens, 761 F.3d 561, 566 (5th Cir.
2014). Under that provision, federal habeas relief may be awarded only if the
state court’s decision was “contrary to, or involved an unreasonable application


      2 The Supreme Court used the term “mental retardation” in Atkins, but has since used
the term “intellectual disability” to describe the identical phenomenon. See, e.g., Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014). We follow the same convention.
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of, clearly established Federal law, as determined by the Supreme Court,” or if
it “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)(1)-(2).
The federal court’s review is limited to the state court record. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1398-99 (2011). We presume the state court’s
factual determinations are correct; Martinez has the burden of rebutting them
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Martinez has not
met his burden to show that jurists of reason could dispute the district court’s
rejection of this claim.
      Martinez had to establish three elements to prove he is intellectually
disabled under Texas law: (1) significantly subaverage general intellectual
functioning; (2) accompanied by related limitations in adaptive functioning;
and (3) onset prior to the age of 18. See Lewis v. Quarterman, 541 F.3d 280,
283 (5th Cir. 2008); Gallo v. State, 239 S.W.3d 757, 769 (Tex. Crim. App. 2007).
His trial counsel submitted an affidavit to the state habeas court explaining
that this was not a viable defense given voluminous evidence that Martinez
was not intellectually disabled. The state courts rejected the Atkins claim, and
the district court upheld their conclusion pursuant to 28 U.S.C. § 2254(d).
      A review of the state court record supports the courts’ conclusions. On
the intellectual functioning prong, the state court found that the results of six
psychological examinations over a twenty-two year period from 1966-1988
showed Martinez to be of average intelligence. The court cited various IQ tests
administered between 1967 and 2001 indicating that Martinez had scores of
79, 89, 93, and 107—all above the typical cutoff of an intellectual disability
under Texas law.      See Blue v. Thaler, 665 F.3d 647, 658 (5th Cir. 2011)
(“[U]nder Texas law, the lack of a full-scale IQ score of 75 or lower is fatal to
an Atkins claim.” (citing Ex parte Hearn, 310 S.W.3d 424 (Tex. Crim. App.
2010)); Ex parte Briseno, 135 S.W.3d 1, 7 n.24 (Tex. Crim. App. 2004) (a person
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                                  No. 15-70017
with an IQ above 70 is generally presumed to not have an intellectual
disability). Martinez’s most recent score is worth noting. It was conducted in
2001 and resulted in a Full Scale IQ Score of 107, a Performance IQ of 97, and
a Verbal IQ of 114, all of which place Martinez in the average to high-average
range. The test was conducted for purposes of an evidentiary hearing during
Martinez’s first trip through federal habeas review. The state habeas court
credited testimony at the 2009 sentencing trial by Martinez’s expert,
Dr. Lundberg-Love, that these results are accurate.
      The state habeas court also found that Martinez had failed to establish
limitations in adaptive functioning. It looked to: testimony by Martinez’s sister
at his 1989 retrial and 2009 punishment trial that Martinez told her he
purposefully checked himself into a mental institution in 1983 for access to free
food, shelter, and women and to bide time until a friend’s release from prison;
testimony from Martinez’s brother regarding his purposeful decision to
establish a methamphetamine lab or marijuana business in order to further
his standing with the Texas Syndicate gang; his conduct in prison and at a
pretrial hearing; his own testimony coupled with documents describing his
enjoyment of various leisure activities; and his preference for earning money
selling drugs, coupled with past legitimate employment including as a barber
and assembly line worker.
      The state habeas court next considered evidence concerning the seven
“Briseno factors,” which Texas factfinders may focus upon “in weighing
evidence as indicative of [intellectual disability] or of a personality disorder.”
Ex parte Briseno, 135 S.W.3d at 8-9.        These factors help to explain how
subaverage intellectual functioning interacts with limitations in adaptive
functioning in order to make the required showing “that the two are linked—
the adaptive limitations must be related to a deficit in intellectual functioning
and not a personality disorder.” Ex parte Hearn, 310 S.W.3d at 428-29.
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      Based on all of this evidence, the state habeas court found “that there is
no credible evidence of [intellectual disability] and no credible basis for
believing that [Martinez] is a[n intellectually disabled] person in terms of the
prevailing diagnostic standards.”
      Nonetheless, Martinez argues that reasonable jurists could debate
whether this determination was unreasonable based on other evidence in the
record and his trial counsel’s ineffectiveness in failing to investigate further.
He relies heavily on one IQ test, administered by the Texas Department of
Corrections in 1965 when he was 18, that resulted in a score of 65. But see
Garcia v. Stephens, 757 F.3d 220, 226 (5th Cir. 2014) (four higher IQ scores
undermine accuracy of one lower IQ score). He also points to facts including
his repetition of first grade three times and fifth grade once; that he received
very little formal education while in juvenile custody; Dr. Lundberg-Love’s
testimony that he reads at a fourth grade level and has poor logical and
abstract thinking; that Texas Department of Corrections reports show the
same deficiencies in abstract reasoning and logic; and testimony from his
family that he would wake up screaming in the night as a child and also hit
himself. He further argues that the state habeas court’s decision was an
unreasonable application of Supreme Court precedents in Hall v. Florida,
134 S. Ct. 1986 (2014) and Brumfield v. Cain, 135 S. Ct. 2269 (2015), both of
which were decided after the state habeas court’s decision. As Martinez sees
it, the state habeas court was required to conduct an evidentiary hearing in
the face of the conflicting evidence before it.
      The district court held that the state court made a reasonable factual
determination in light of all of the evidence before it that Martinez is not
intellectually disabled. Federal courts must defer to the state court’s fact
findings. See Brumfield, 135 S. Ct. at 2277; Blue, 665 F.3d at 654-55. The
court also concluded that the state habeas court’s decision does not contravene
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Supreme Court precedents in Brumfield—which involved an inmate who met
the standard for an Atkins evidentiary hearing—or Hall—which does not affect
Texas’s standards for evaluating Atkins claims, see Garcia, 757 F.3d at 226;
Mays v. Stephens, 757 F.3d 211, 218-19 (5th Cir. 2014). With this predicate,
the district court also rejected Martinez’s contention that there is a reasonable
probability that, but for his counsel’s alleged ineffectiveness in not
investigating the claim further, he would have been found ineligible for
execution under Atkins. See Mays, 757 F.3d at 216-17. Reasonable jurists
could not find the district court’s assessment of the Atkins-related
constitutional claims debatable or wrong. We therefore deny a COA.
                                       B
      Martinez also claims that the district court erred by denying funding to
develop his Atkins claim. See 18 U.S.C. § 3599(f). He does not need a COA to
appeal this denial, and we review the decision only for abuse of discretion. See
Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). We have upheld the denial
of such funding when (1) a petitioner has failed to supplement his funding
request with a viable constitutional claim that is not procedurally barred;
(2) the sought-after assistance would only support a meritless claim; or (3) the
sought-after assistance would only supplement prior evidence. See id. The
petitioner must also show that the funding is “reasonably necessary,” which
means that there must be a “substantial need” for the requested assistance.
See Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004).
      Martinez again relies on the IQ score of 65 when he was 18, and contends
that an expert is needed to reconcile it with his higher subsequent results. The
district court properly limited its review to the record compiled in the state
habeas court, see Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011); Ward v.
Stephens, 777 F.3d 250, 266 n.5 (5th Cir. 2015). The court determined that
Martinez had not demonstrated why additional testing to supplement that
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already substantial record was reasonably necessary given the narrow federal
standard of review. Moreover, the state habeas court had allocated $5,000 to
develop Martinez’s claim, only to have that expert determine he was not
intellectually disabled. Further, Martinez was given an evidentiary hearing
on a related neurological impairment claim in an earlier round of federal
habeas review, and the testing for that claim led to an IQ test result of 107.
See Martinez v. Dretke, 404 F.3d at 883, 883 n.6. Any additional factual
development on Martinez’s intellectual disability claim would be at best
cumulative, see Smith, 422 F.3d at 288-89; Barraza v. Cockrell, 330 F.3d 349,
352 (5th Cir. 2003), or more likely would support only a meritless claim, see
Allen v. Stephens, 805 F.3d 617, 638 (5th Cir. 2015); Hill v. Johnson, 210 F.3d
481, 487 (5th Cir. 2000). See also Ward, 777 F.3d at 266-67. The district court
did not abuse its discretion to deny funds.
                                       IV
                                       A
      Martinez raises four ineffective assistance of trial counsel claims that he
did not exhaust in state court.     These unexhausted claims are therefore
procedurally barred under Texas law, see Garza v. Stephens, 738 F.3d 669, 675
(5th Cir. 2013), and 28 U.S.C. § 2254(b) prevents a federal court from granting
habeas relief unless the applicant makes one of two showings, neither of which
applies.
      Procedurally defaulted claims can, however, be reviewed when “the
prisoner can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). Ineffectiveness of
state habeas counsel is now a circumstance in which a prisoner may show
cause for procedural default of a federal claim. See Martinez v. Ryan, 132 S. Ct.
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1309, 1320 (2012). The Supreme Court has explicitly made this rule applicable
to Texas. Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013). “[T]o 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).
      An ineffectiveness claim, in turn, requires the petitioner to make two
showings: (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the petitioner. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). Failure to make either showing defeats
an ineffectiveness claim. See id.
      Where, as here, a federal habeas petitioner brings a claim of ineffective
assistance of trial counsel, and that claim is procedurally defaulted, and he
asserts Martinez/Trevino to show cause for that procedural default, a court
must potentially perform two Strickland inquiries before considering the
underlying defaulted claim. See Beatty v. Stephens, 759 F.3d 455, 465-66 (5th
Cir. 2014) (performing alternative analyses).         First, the petitioner must
demonstrate that the underlying ineffective assistance of trial counsel claim is
substantial—i.e., has some merit. Strickland’s prejudice prong in a death
penalty sentencing case requires a showing that there is a “reasonable
probability that the jury would not have imposed the death sentence in the
absence of errors by [trial] counsel.” Riley v. Cockrell, 339 F.3d 308, 315 (5th
Cir. 2003) (quotations and citations omitted). Second, the Strickland inquiry
also governs whether state habeas counsel was ineffective in failing to present
the trial court ineffectiveness claim in the state habeas proceeding.           See
Martinez, 132 S. Ct. at 1318. Prejudice in this inquiry means that Martinez
must show a reasonable probability that he would have been granted state
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                                  No. 15-70017
habeas relief had his habeas counsel’s performance not been deficient. See
Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014). Upon satisfying both
prongs of this Martinez/Trevino inquiry, a petitioner has shown cause for the
procedural default and is entitled to have his claim reviewed on the merits in
federal court, see Newbury, 756 F.3d at 872; but even then, he is not necessarily
entitled to habeas relief, see Martinez, 132 S. Ct. at 1320.
      With these standards in mind, and the COA standards layered on top,
we proceed to Martinez’s defaulted claims.
                          B. Confrontation Clause
      The prosecution introduced evidence at Martinez’s 2009 sentencing trial
that he was responsible for the deaths of five people during his July 1983 crime
spree: Herman Chavis, Moses Mendez, Julia Gonzales, Guillermo Chavez, and
Traci Pelkey. He had only been convicted of the murder of Chavis, yet the
prosecution sought to demonstrate his future dangerousness through evidence
of the other killings. A finding of future dangerousness is necessary for the
imposition of the death penalty under Texas law. See TEX. CODE OF CRIM.
PROC. ANN. art 37.071 § 2(b)(1). In addition to live testimony tying Martinez
to the murders, the prosecution introduced autopsy reports performed in the
four extraneous homicides.      The prosecution also called Albert Chu, an
assistant medical examiner at the Harris County Medical Examiner’s Office,
to testify about the reports. Chu had neither performed the autopsies twenty-
six years earlier nor witnessed them. Martinez asserts that admission of the
autopsy reports and admission of Chu’s testimony were each a violation of his
Confrontation Clause rights, see U.S. CONST. amend. VI, and that his trial
counsel were ineffective for not objecting to their admission.




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                                       No. 15-70017
       The district court held that Martinez could not overcome the procedural
bar on these claims 3 because he had not shown a reasonable probability of a
different result had trial counsel lodged a Confrontation Clause objection.
Martinez v. Stephens, 2015 WL 1282199 at *11. The court carefully chronicled
the status of the Confrontation Clause law in Texas at the time of the 2009
sentencing trial and when his state habeas petition was filed in 2010, and
concluded that Martinez had “not raised a strong claim of ineffective
representation by trial or habeas counsel.” Id. It went on to hold that even if
his attorneys should have raised the claims, he could not show actual prejudice
because removal of the autopsy evidence “would not significantly alter the
jury’s consideration of Martinez’s sentence” given the other evidence tying him
to the killings. Id.
       We agree that Confrontation Clause jurisprudence relating to autopsy
reports was unclear in 2009 and 2010 (and remains so today). Because jurists
of reason could find it debatable whether the district court’s procedural bar
ruling was correct, we granted a COA on these two claims. 4 We therefore
conduct de novo Martinez/Trevino procedural analysis. See Gonzalez v. Thaler,
623 F.3d 222, 224 (5th Cir. 2010) (COA granted to review procedural grounds
and then stating “[w]e review the denial of a federal habeas petition on
procedural grounds de novo”), aff’d, 132 S. Ct. 641 (2012). Were we to find
cause under that doctrine for the procedural default of these claims, we could
then consider them on the merits and possibly grant habeas relief.                        See



       3 Again, these are two distinct claims. We, like the district court, analyze them
together because of the overriding question of prejudice.

       4 The district court alternatively ruled that even if Martinez could overcome the
procedural bar on his claims, the claims lack merit; for the same reason that state habeas
counsel did not provide deficient performance, trial counsel’s failure to object did not amount
to constitutionally inadequate representation, but in any case Martinez could not show
prejudice. Martinez v. Stephens, 2015 WL 1282199 at *16.
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                                       No. 15-70017
Martinez, 132 S. Ct. at 1318. On close review, however, we agree with the
district court that, even assuming Martinez could show that either his trial or
habeas counsel was ineffective, he cannot show resultant prejudice. As a
result, his claims are procedurally barred and we must deny habeas relief.
       We may assume, without deciding, that Martinez’s trial counsel were
ineffective for failing to object on either Confrontation Clause ground and that
his state habeas counsel was ineffective for failing to object to his trial counsel’s
ineffectiveness. 5 But on the ultimate merits of his claim, Martinez must still
establish prejudice. “[T]he question is not whether a court can be certain
counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted differently.”
Harrington v. Richter, 562 U.S. 86, 111, 131 S. Ct. 770, 791 (2011). Rather,
“[t]he likelihood of a different result must be substantial, not just conceivable.”



       5  Though we need not decide ineffectiveness, we are skeptical Martinez could establish
it as to trial or habeas counsel. At the time of his 2009 sentencing trial, the Supreme Court
had decided Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), which held that
admission of testimonial statements against a criminal defendant violates the Confrontation
Clause unless the witness is unavailable and was subject to a prior cross-examination. It
reaffirmed and clarified that decision in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266
(2006). The Texas courts had by that time applied these decisions to prison disciplinary
reports in a capital case. See Russeau v. State, 171 S.W.3d 871, 880-81 (Tex. Crim. App.
2005). From just these three cases, it is hard to see how Martinez’s trial counsel should have
found an obligation to object to the autopsy evidence admitted in his trial. During the
pendency of Martinez’s direct appeal, and by the time of his 2010 state habeas petition, the
Supreme Court had extended Crawford to cover “testimonial” certificates of analysis sworn
by analysts at a state laboratory in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
2527 (2009). The district court recognized that courts have been split on whether Melendez-
Diaz applies to autopsy reports. See Martinez v. Stephens, 2015 WL 1282199 at *10 to *11.
It also noted that some Texas courts, in cases decided after Martinez’s 2009 trial, have held
autopsy reports are testimonial at least for some purposes. See id. Martinez relies heavily
on cases decided after his 2009 trial and 2010 habeas petition—most notably Burch v. State,
401 S.W.3d 634 (Tex. Crim. App. 2013) (lab reports indicating substance was cocaine are
testimonial)—but his reliance is misplaced. We look to the law at the time of counsel’s
allegedly deficient conduct, see United States v. Webster, 392 F.3d 787, 796 (5th Cir. 2004),
and counsel has no duty to anticipate changes in the law, see United States v. Fields, 565 F.3d
290, 296 (5th Cir. 2009).
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                                       No. 15-70017
Id. at 112, 792.        Martinez simply cannot establish prejudice given the
overwhelming evidence of his dangerousness.
       First, the autopsy evidence was not the only evidence that linked
Martinez to the extraneous killings. Mary Salazar, the teenage runaway, was
present for each of the five murders and personally witnessed those of his sister
Julia Gonzales, 6 her boyfriend Guillermo Chavez, and prostitute Traci Pelkey.
She testified about how Martinez bragged about each of the killings. Other
witnesses identified Martinez as a robber of the saloons and placed him at the
scene of the murders of Herman Chavis and Moses Mendez, even if they could
not say definitively that he fired the fatal shots. Martinez’s argument that the
prosecution would not have been able to tie the five murders to him without
the autopsy evidence is simply not true.
       Second, in addition to the 1983 crime spree, the prosecution still had a
compelling capital case to present to the jury. Martinez’s criminal history is
long and riddled with violence.            From the time he was fifteen years old
Martinez has demonstrated his violent proclivities. This includes: numerous
armed robberies; assaults; burglaries; rapes in and out of prison (including of
a twelve-year-old girl); killings while setting up his drug business for the Texas
Syndicate; his overall gang involvement (including as a leader in the Texas
Syndicate); the terror he directed toward his family with regularity; and his
brutality toward prison guards and other inmates while in custody.
Throughout his lifelong criminal history, Martinez demonstrated no
willingness to reform, despite being given multiple opportunities to do so. He
regularly bragged about his criminal exploits and described himself as a
“psychopath” to his family.


       6 Further, Martinez’s niece, Escoto, testified that he claimed to have “killed the wrong
sister” on one occasion and apologized to her for killing Gonzales (her mom) on another.

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                                      No. 15-70017
       In sum, Martinez cannot establish a reasonable likelihood that the jury
would have found he was not a future danger and spared his life.                        Any
Confrontation Clause error here was harmless because it did not have a
substantial and injurious effect or influence in determining the jury’s verdict. 7
See Dorsey v. Stephens, 720 F.3d 309, 318-19 (5th Cir. 2013); Clark v. Epps,
359 F. App’x 481, 485-87 (5th Cir. 2009).
       We reached a similar conclusion when Martinez was last before us on his
first round of federal habeas review:
             In addition to mitigating evidence presented by the defense,
       the jury also had before it evidence of Martinez’s methodical
       planning and execution of the crime of conviction. The state
       propounded evidence that Martinez and his accomplices “cased”
       Chavis’s bar in preparation for the robbery. On July 11 and
       July 12, 1983, Martinez and one accomplice entered the bar,
       ordered a beer, drank very little, and left. Martinez and two
       accomplices returned on July 13, 1983, and shot and killed Chavis
       in the process of robbing the bar. The jury also had before it
       evidence of Martinez’s subsequent violent and murderous 1983
       crime spree, and his numerous prior convictions for burglary,
       robbery, jail-breaking, and theft. The evidence depicted a man
       capable of planning and executing criminal acts and victimizing
       anyone who would get in his way, which was more than sufficient
       to belie any “tragic impulse” defense that Martinez could have
       asserted.

Martinez v. Dretke, 404 F.3d at 890 (emphasis added). The 2009 sentencing
jury had the same evidence before it.




       7  Martinez argues that the state has the burden of proving that the error is harmless
beyond a reasonable doubt. See United States v. Alvarado-Valdez, 521 F.3d 337, 341-42 (5th
Cir. 2008). That is the correct standard on direct review, but the substantial and injurious
effect standard is applied on collateral review. See Fratta v. Quarterman, 536 F.3d 485, 507-
508 (5th Cir. 2008).
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                                 No. 15-70017
      Given the state’s compelling case for the death penalty, we cannot find
that Martinez was prejudiced by his counsels’ alleged (and only assumed
arguendo) ineffectiveness. He has not shown cause under Martinez/Trevino for
his procedural default of his two Confrontation Clause claims, which are
therefore barred from federal review.
                         C. Organic Brain Damage
      Martinez alleges that his trial counsel were constitutionally ineffective
for failing to present evidence of his organic brain damage. We considered and
rejected an identical claim in Martinez’s first round of habeas proceedings,
although we granted him a COA on the issue. See Martinez v. Dretke, 404 F.3d
at 887-90.   We held that “counsel’s decision not to introduce evidence of
neurological impairment (i.e., organic brain damage) as mitigating evidence at
the punishment phase constituted reasonable and protected professional
judgment” because evidence of organic brain injury is a “double-edged sword.”
Id. at 889; see also Kitchens v. Johnson, 190 F.3d 698, 702-03 (5th Cir. 1999).
“[I]ntroduction of evidence that Martinez suffered from organic (i.e.,
permanent) brain damage, which is associated with poor impulse control and
a violent propensity, would have . . . increased the likelihood of a future
dangerous finding” that is necessary for the imposition of the death penalty
under Texas law, see TEX. CODE OF CRIM. PROC. ANN. art 37.071 § 2(b)(1). As
a result, “counsel’s decision not to introduce evidence of organic brain damage,
given the availability of other, less damaging, mitigating evidence, fell within
the bounds of sound trial strategy.” Martinez v. Dretke, 404 F.3d at 890. We
further held that even if counsel’s strategies did fall below professional norms,
they could not form the basis of an ineffective assistance of counsel claim
because Martinez could not show prejudice.
      Martinez has not demonstrated that his claim is any more meritorious
now than it was then. All of the evidence he now presses in support of this
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                                  No. 15-70017
claim was developed during the prior round of habeas review and was available
to his trial counsel at his 2009 resentencing. See id. at 889 (“Under the facts
as they existed at the time [in 2009], counsel’s decision was reasonable.”). The
law did not change between our 2005 opinion and his 2009 sentencing hearing;
the second edge of the double-edged sword remains as sharp as ever. Evidence
of organic brain damage could have been just as damaging to Martinez as
beneficial. Martinez argues that the second edge of the sword was already
before the jury, via the testimony of Dr. Lundberg-Love, and therefore not a
risk to be concerned with. She testified that he had difficulty controlling his
behavior and was impulsive. This does not negate the risk associated with
evidence of organic brain damage that his counsel made a strategic decision to
avoid. General statements about impulsiveness do not reduce the value of
specific, non-cumulative testimony regarding the aggression and permanence
of behavior associated with organic brain damage. There is no basis to second-
guess his counsel’s strategic decision, particularly in light of our prior opinion.
Moreover, along the lines already discussed, even if his counsels’ performance
was ineffective he cannot show prejudice to the outcome of his sentencing
retrial. See also id. at 890.
      Martinez has not demonstrated that his underlying ineffectiveness claim
has some merit, and has accordingly not cleared the Martinez/Trevino
exception to the procedural bar on this claim. Jurists of reason would not find
the correctness of the district court’s procedural ruling debatable, nor could
they find that Martinez’s petition states a valid claim of a denial of a
constitutional right. We therefore deny a COA on this issue. See Beatty v.
Stephens, 759 F.3d 455, 466 (5th Cir. 2014) (denying COA on insubstantial
claim as procedurally barred).




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                                 No. 15-70017
                                       D
      Martinez argues that his trial counsel were constitutionally ineffective
for failing to object to allegedly improper prosecution questions regarding his
homosexual activity. He claims these questions were designed to prejudice the
jury and deny him a fair trial. He protests five references.
      First, the prosecution questioned Mary Salazar about why she ran away
from home at young age. During that line of questioning, she testified that she
met a man in Fort Worth who “had a relationship” with Martinez, without
further elaboration.
      Second, during cross-examination of Martinez’s expert, Dr. Lundberg-
Love, the prosecution pointed out that homosexuality had previously been
classified by the psychological profession as a mental disorder. This statement
was made in the context of her discussion of changes made in the profession’s
diagnostic manual during Martinez’s long history of repeated mental health
evaluations. She also identified other changes such as mathematic disorder,
male erectile disorder, and caffeine induced disorder, but made clear that these
did not represent her diagnosis of Martinez.
      Third, also during cross-examination of Dr. Lundberg-Love, the
prosecution used juvenile disciplinary records to emphasize Martinez’s acts of
misconduct during his years of incarceration. While reviewing those records,
the prosecution mentioned that the reports included “infraction of rules, details
of escapes, attempted escapes, homosexual acts, use of drugs, [and] security
treatment for mass escape involvement.”
      Fourth, the prosecution elicited testimony from Martinez’s niece, Laura
Escoto, about his criminal history. Asked whether she had seen Martinez with
another man, she replied that she had seen him and a man named Casey
“together, gay.” Defense counsel immediately objected, to which the prosecutor
responded that it was being offered as proof of a past “bad act” since Martinez
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                                  No. 15-70017
was “[c]omitting a crime in front of her.” 8 The prosecutor nonetheless conceded
that “it was not something that [he had] to put in,” and the trial judge
instructed the jury to disregard the answer.
      Fifth, homosexuality was broached again during Escoto’s testimony
when the prosecution questioned her about the contents of a letter she had
received from Martinez. In the letter, which was introduced to the jury in its
entirety, Martinez wrote in “very” explicit detail about “consensual sex” with a
twelve-year-old girl that resulted in his juvenile incarceration.              After
discussing the contents of the letter with her, the prosecutor asked Escoto if
Martinez had “discussed any sex acts he had in prison.” She responded that
he said that “he would force the prisoner for sex. . . . He would hold the knife
up to [the other prisoners’] neck and then he would tell them that blood on [his]
knife or shit on [his] ding-a-ling.” The prosecutor repeated this testimony
during his closing argument while summarizing Martinez’s significant
criminal history and emphasizing his future dangerousness.
      We agree with the district court that “[f]or the most part, the State’s
questions about Martinez’s homosexuality were accurate, in light of the
evidence, and were relevant to the State’s case.”            Martinez v. Stephens,
2015 WL 1282199 at *15. The first question from his ex-girlfriend did not
discuss or mention Martinez’s sexuality, and the comment was quite minor.
The second question during Dr. Lundberg-Love’s cross-examination provided
context for the jury to understand the psychological profession’s evolving
classification of mental disorders. The third brief mention of homosexuality
was actually related to Martinez’s criminal history, which is relevant to the
future dangerousness special issue.       Such is also the case with regard to



      8 Committing a homosexual act was a crime in Texas until 2003. See Lawrence v.
Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003).
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                                  No. 15-70017
Escoto’s testimony (and the prosecution’s repetition of it) regarding
homosexual prison rape, for which Martinez had a standard operating
procedure and catchphrase. During Escoto’s testimony, Martinez’s counsel did
object to the most objectionable prosecution question regarding Martinez’s
homosexual acts. The prosecutor withdrew the question and the trial judge
instructed the jury to disregard the comment. Jurors are presumed to follow
their instructions, see Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702,
1709 (1987), and there is no reason to believe they did not in this case.
Moreover, even if it could be said that Martinez’s trial counsel should have
objected to the other testimony, we also agree with the district court that he
cannot establish prejudice given that the evidence established that he was a
violent sexual criminal, regardless of where he was or how old he was. See
Martinez v. Stephens, 2015 WL 1282199 at *15.
        The district court’s procedural ruling was that “[t]he comments were an
incidental and sporadic factor in the punishment phase and not a decisive
consideration in the jury’s decision making,” state habeas counsel was
accordingly not ineffective for failing to raise the claim, and Martinez had
therefore not overcome the procedural bar against considering this claim.
Id.    Because reasonable jurists would not find the correctness of this
procedural ruling debatable, nor could they find that Martinez’s petition states
a valid claim of a denial of a constitutional right, we deny a COA on this issue.
See Beatty v. Stephens, 759 F.3d 455, 466 (5th Cir. 2014) (denying COA on
insubstantial claim as procedurally barred).
                                       V
        Based on the foregoing discussion, Martinez’s motion for COA is
GRANTED IN PART, DENIED IN PART; and the judgment of the district
court denying habeas relief and denying funding is AFFIRMED.


                                       25
