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

                                                                            FILED
                                                                           August 2, 2013

                                       No. 12-70006                        Lyle W. Cayce
                                                                                Clerk

RAMIRO HERNANDEZ, also known as Ramiro Hernandez-Llanas,

                                                  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 Western District of Texas
                              USDC No. 5:08-CV-805


Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       A Texas state court jury convicted Ramiro Hernandez of capital murder.
He was sentenced to death. A federal district court denied his application for
habeas relief, which was based in part on the claim that he is mentally
retarded.1 Hernandez was granted a certificate of appealability on that claim,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
       The American Psychiatric Association’s fifth edition of the Diagnostic and Statistical
Manual of Mental Disorders (DSM-5), uses the term “intellectual disability (intellectual
developmental disorder)” in place of the term “mental retardation” and de-emphasizes IQ
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and he also seeks to expand the certificate for three other claims. We AFFIRM
the denial of his application and DENY his request to expand the certificate.
                              PROCEDURAL HISTORY
       In 2000, Hernandez was convicted in Texas state court of murdering his
employer, Glen Lich. The jury decided that his sentence should be death. In an
unpublished opinion, the Texas Court of Criminal Appeals affirmed both his
conviction and sentence on direct appeal. Hernandez v. State, No. 73,776 (Tex.
Crim. App. Dec. 18, 2002). Hernandez then sought habeas relief from the state
district court, alleging in part that he was mentally retarded and his execution
would violate the Eighth Amendment. After an evidentiary hearing ordered by
the Texas Court of Criminal Appeals, the state district court, on May 20, 2008,
determined that Hernandez was not mentally retarded. The Court of Criminal
Appeals adopted the district court’s findings of fact and conclusions of law and
denied Hernandez any relief. Ex parte Hernandez, No. WR-63282-01, 2008 WL
4151813, at *1 (Tex. Crim. App. Sept. 10, 2008).
       In United States district court, Hernandez applied for relief under 28
U.S.C. § 2254. On January 15, 2010, the court stayed the suit to permit
exhaustion of state remedies on all unexhausted claims. Hernandez returned
to state court and filed his third application for relief, claiming he was denied
the right to conflict-free counsel. The Court of Criminal Appeals dismissed his
application as an abuse of the writ. Ex parte Hernandez, No. WR-63282-03, 2010
WL 1240353, at *1 (Tex. Crim. App. Mar. 31, 2010).



scores as determinants of this condition. We are bound by the United States Supreme Court
precedent on the legal issue, Atkins v. Virginia, 536 U.S. 304 (2002). This court’s changing
terminology on its own serves little purpose other than to create ambiguity.

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      Returning to federal court, Hernandez claimed that (1) because he suffered
from mental retardation, his execution would be unconstitutional; (2) he received
ineffective assistance of counsel because of a failure to investigate and present
mitigating evidence; (3) his counsel operated under a conflict of interest; and (4)
the trial court’s admission of documents that detailed a conviction of murder and
escape from custody in Mexico was error because the criminal justice system in
Mexico did not afford the same rights as were provided in the United States.
      In a thorough opinion, the district court denied Hernandez’s application,
granted a certificate of appealability on his mental retardation claim, and denied
a certificate of appealability on all other claims. Hernandez v. Thaler, No. SA-
08-CA-805-XR, 2011 WL 4437091, at *59 (W.D. Tex. Sept. 23, 2011). Hernandez
appeals the denial of his retardation claim and also seeks a certificate of
appealability on his three other claims.
                                 DISCUSSION
      A. Atkins Claim of Mental Retardation
      A federal court may grant an application under Section 2254 if the state
court’s adjudication of the claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
A different standard applies to the review of a state court’s factual findings,
which we will identify and discuss later.
      The district court denied habeas relief after reviewing the state-court
records. On appeal, we conduct an independent review and apply the same
Section 2254 standards to the state court’s decision as did the federal district
court. See Chester v. Thaler, 666 F.3d 340, 343-50 (5th Cir. 2011).


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      The Eighth Amendment prohibits the execution of a criminal offender who
is mentally retarded. Atkins v. Virginia, 536 U.S. 304, 321 (2002). The states
are left with “the task of developing appropriate ways to enforce the
constitutional restriction.” Id. at 317.
      Post-Atkins, the Texas Court of Criminal Appeals defined mental
retardation as containing three elements: “(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.” Ex parte
Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004) (citations and quotation marks
omitted). The court required “significantly subaverage general intellectual
functioning that is concurrent with deficits in adaptive behavior and originates
during the developmental period.” Id. An IQ of about 70 or below was said to
be “significantly subaverage.” Id. at 7 n.24.
      An applicant bears the burden of proving his mental retardation by a
preponderance of the evidence. Id. at 12. Failure to satisfy even one of the three
elements of the Briseno definition results in the denial of the claim. Clark v.
Quarterman, 457 F.3d 441, 444 (5th Cir. 2006).
      The Court of Criminal Appeals has listed specific evidentiary factors which
may be relevant to the analysis of mental retardation. Briseno, 135 S.W.3d at
8-9.1 We have held that the Briseno definition and evidentiary factors are not


      1
          The evidentiary factors listed in Briseno are these:

      [1] Did those who knew the person best during the developmental stage – his
      family, friends, teachers, employers, authorities – think he was mentally
      retarded at that time, and, if so, act in accordance with that determination?
      [2] Has the person formulated plans and carried them through or is his conduct
      impulsive?
      [3] Does his conduct show leadership or does it show that he is led around by

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an “unreasonable application” of the Supreme Court’s Atkins opinion, and
neither are the factors “contrary to” clearly established federal law. Chester, 666
F.3d at 347-48. Citing Chester, Hernandez acknowledges that he does not,
indeed cannot, challenge in this court the consistency of the Briseno factors with
Atkins. He does argue, though, that after the state district court cited Briseno,
it never listed all the factors when considering his habeas petition.                      His
argument is that even though Texas has developed a constitutionally adequate
analysis to apply to Atkins claims, the state district court unreasonably applied
Atkins because the court did not fully use the evidentiary factors. Instead,
Hernandez claims that the court’s consideration of the factors was “one-sided,”
discussing only those that undermined the claim of retardation. The Court of
Criminal Appeals adopted the state district court’s factual findings and legal
conclusions, so the alleged defect would apply to the appellate decision as well.
       This argument, though, is better understood as a challenge to the state
district court’s consideration of the facts, such as by allegedly examining only
part of the evidence. We will consider the completeness of the state district
court’s application of Briseno to the facts in our discussion of the evidence. We
conclude now that the state district court decision was neither contrary to nor


       others?
       [4] Is his conduct in response to external stimuli rational and appropriate,
       regardless of whether it is socially acceptable?
       [5] Does he respond coherently, rationally, and on point to oral or written
       questions or do his responses wander from subject to subject?
       [6] Can the person hide facts or lie effectively in his own or others’ interests?
       [7] Putting aside any heinousness or gruesomeness surrounding the capital
       offense, did the commission of that offense require forethought, planning, and
       complex execution of purpose?

Briseno, 135 S.W.3d at 8-9.

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involved an unreasonable application of clearly established federal law as
determined by the Supreme Court of the United States.
      Hernandez also argues that the state court’s decision on the merits of his
mental retardation claim “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). Because the Texas Court of
Criminal Appeals denied Hernandez’s habeas application by adopting the state
district court’s findings and conclusions, we review the state district court’s
decision. See Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998). We review
the state court’s ultimate conclusions, not the state court’s opinion that explains
its decision. Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010).
      The court will presume that the state district court’s findings of fact are
correct; the applicant has the burden to rebut that presumption “by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). The relevant opinion by the state
district court was on May 20, 2008.         The court entitled its decision as
“Supplemental Findings of Fact and Conclusions of Law,” and it attached as
additional, re-adopted findings the court’s decision of March 7, 2006, when it
initially considered the Atkins claim. The court found that Hernandez “was not
mentally retarded because the evidence failed to show [he] had a significantly
subaverage general intellectual functioning.” This finding of fact is entitled to
the Section 2254(e)(1) presumption of correctness. We examine the evidence the
state court had before it.
      At a state court hearing, Dr. Gilbert Martinez, a licensed psychologist,
testified that he personally performed neuropsychological evaluations on
Hernandez before the punishment phase of the trial in 2000 at a detention


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                                     No. 12-70006
facility in Kerr County, Texas, in order to explore Hernandez’s cognitive and
mental functioning. Dr. Martinez administered a nonverbal portion of the third
edition of the Wechsler Adult Intelligence Scale (“WAIS-III”),2 and Hernandez
scored a 54. Dr. Martinez also administered the second edition of the Test of
Nonverbal Intelligence (“TONI”), and Hernandez scored a 57 when scaled to
American norms.
       Another licensed psychologist, Dr. Antonio Puente, evaluated Hernandez
while he was incarcerated in 2003. Dr. Puente administered a comprehensive
version of the TONI, and Hernandez scored a 52.                  In 2006, Dr. Puente
administered a full-scale version of the WAIS-III, which included verbal testing,
and Hernandez scored a 70 when his results were scaled to Mexican norms.
Hernandez scored an 87 on the performance portion of the test and a 66 on the
verbal portion.
       During their testimony, both psychologists referenced an additional TONI
given in 1999 by a master’s level psychological associate for inmate-screening
purposes in the Texas Department of Criminal Justice. Hernandez scored an 83
on this test, but Dr. Puente testified that the test was outdated and not
considered reliable.
       Neither Dr. Martinez nor Dr. Puente believed Hernandez was
intentionally performing poorly on the tests, but Dr. Martinez explained that
passive motivational reasons could have caused the below-average scores.
       In addition to the psychological examinations, a psychiatrist named Dr.
Robert Cantu evaluated Hernandez in 1998 to determine whether he was


       2
        The United States Supreme Court has described this test as “the standard instrument
in the United States for assessing intellectual functioning.” Atkins, 536 U.S. at 309 n.5.

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                                   No. 12-70006
competent    to   stand   trial.    Dr.   Cantu   diagnosed    Hernandez      with
schizophreniform disorder, the symptoms of which include an impaired
perception of reality, but Dr. Cantu ultimately concluded Hernandez was
competent to stand trial. The psychiatrist believed Hernandez was “pretending
not to understand or not to know in an effort to look bad” and formed a definite
opinion that he was intentionally underperforming during his evaluation.
      Dr. Michael Arambula, also a practicing psychiatrist, evaluated
Hernandez prior to his trial to determine his mental state at the time of the
offense. The psychiatrist diagnosed Hernandez as having a mood and thought
disorder as the result of drug use and a closed-head injury. The psychiatrist
testified he did not see signs that Hernandez was malingering during the
evaluation, explaining that a person who is malingering often will give responses
that are beneficial to the case; here, Hernandez revealed he was involved in a
prison gang, information Dr. Arambula pointed to as an example of what might
be unhelpful if presented to a jury.
      Another practicing psychiatrist, Dr. Richard Coons, who did not personally
interview Hernandez, examined the medical data from the two psychologists’
evaluations. Dr. Coons explained that Dr. Puente’s WAIS-III examination was
the only evidence of a full-scale evaluation for intelligence. After reviewing the
examination data and exploring Hernandez’s adaptive behavior, Dr. Coons
concluded that Hernandez was not mentally retarded.
      Dr. Coons was concerned with unexplained inconsistences in the tests’
subscores, particularly the disparity between the performance scores of 54 and
87 between the examinations by Dr. Martinez and Dr. Puente. In addition, Dr.
Coons testified that some of the tests were incorrectly administered and scored,


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potentially causing high-scoring results to be disregarded. He expressed concern
that some testing on which Hernandez performed very well was not considered.
       Dr. Coons further believed that motivational variables likely played a role
in the below-average scores Hernandez received from the two psychologists’
examinations, but Dr. Coons did not affirmatively conclude that Hernandez was
malingering on the IQ tests.
       In addition to considering this evidence on intellectual functioning, the
state district court considering the habeas petition also determined “there was
no evidence of significant limitations in adaptive functioning” and listed
adaptive-skill areas.
       In reaching its determinations, the state district court acknowledged the
caselaw in Briseno. The first Briseno factor concerns whether those who knew
Martinez in his developmental years thought he was mentally retarded. Family
and acquaintances from Mexico testified that he was abused as a child and lived
in dangerous conditions near a waste-disposal site. Evidence showed that
Hernandez as a child had trouble following directions, frequently fell asleep,
received only a third-grade education, did not interact well with other children,
could not count money, and appeared to have hygiene difficulties. There was
only slight testimony, though, about whether those who knew Hernandez in his
youth believed he was mentally retarded at that time.3
       Regarding the third factor, which involves whether he is a leader or
instead is easily led by others, one of Hernandez’s sisters testified that he had


       3
         Hernandez’s sister first wrote a statement to the trial court that she did not believe
Hernandez was “mentally retarded” but subsequently stated at the state district court’s
evidentiary hearing that her understanding of that term had changed. She did not disavow
her factual testimony, though.

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trouble using public transportation. Yet, there was evidence that Hernandez
was able to escape from police custody in Mexico and enter the United States
where he subsequently gained employment on a ranch in Kerr County, Texas.
Another sister explained that she lived in Texas and occasionally visited with
Hernandez. She testified that Hernandez did not make much money at his
employment on the ranch because he also received room and board in exchange
for his services. His sister said she sometimes would take Hernandez to the
grocery store, but at other times Hernandez sent others to the store for him.
      As for the fourth factor regarding his ability to respond to external stimuli,
testimony from Hernandez’s relatives provided the state district court with some
evidence of irrational responses during his childhood. One example was that
Hernandez was shown how to separate different recyclable materials, but he
instead placed all the recyclables together. On the other hand, Hernandez was
able to request specific types of food during his incarceration because his usual
fare was disagreeable.
      In regard to the fifth factor, which concerns whether he responds
coherently to questions, Dr. Martinez testified that Hernandez would discuss
unrelated topics when asked a direct question.           Even so, a Texas law-
enforcement officer testified that during his post-homicide interview with
Hernandez in October 1997, Hernandez received and directly responded to
warnings, questions, and requests. The state district court determined that
“[t]his was not consistent with the ability and conduct of a person who was
mentally retarded.”
      The second, sixth, and seventh factors involve the ability generally to plan
and follow through, to lie or otherwise hide facts, and to use planning and


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complex execution in the actual capital offense. There is evidence to support a
finding that Hernandez formulated a plan to murder his employer at the ranch
house and carried out that plan. Hernandez’s cousin testified that, two weeks
before the murder and while speaking with Hernandez, Hernandez said he was
angry with the Liches and wanted to hurt them. Hernandez also told his cousin
that the Liches owned a vehicle that could be sold in Mexico.
      The murder victim’s wife, Lera Lich, described the events that occurred on
the day of the murder. On the evening of October 14, 1997, the Liches were in
their home when Hernandez knocked on the porch door. Mr. Lich went outside.
After a short conversation, the two men walked away from the house. Then
Hernandez killed Mr. Lich by bludgeoning him with a metal bar. Hernandez
returned to the house and raped Mrs. Lich at knife-point. He told her that she
would see Mr. Lich again if she gave Hernandez money. He bound Mrs. Lich to
the bedposts, covered her head with a blanket, and proceeded to steal jewelry.
Afterwards, he removed the blanket and insisted on obtaining the keys to the
Liches’ vehicle. With Mrs. Lich still securely bound, he went outside, started the
vehicle, and then turned it off. He returned, used wire to tighten Mrs. Lich’s
fastens, and used the telephone. He then untied Mrs. Lich, raped her again, and
threatened that he would harm her sleeping mother in the adjoining room if
Mrs. Lich called the police. He then wrapped his arms around her and appeared
to fall asleep. Mrs. Lich was able to break free and find help. After being
arrested by police on October 15, Hernandez provided a false name.
      After reviewing the evidence and making detailed findings of fact, the
state district court concluded that Hernandez was not mentally retarded. The
court held that (1) “the evidence failed to show that [Hernandez] had a


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                                 No. 12-70006
significantly subaverage general intellectual functioning,” (2) “there was no
evidence of significant limitations in adaptive functioning in any of the
[enumerated] skill areas,” and (3) “there is no credible evidence that any mental
retardation manifested during the developmental period.” The court apparently
used proposed findings and conclusions submitted by the State. The Court of
Criminal Appeals “adopt[ed] the trial court’s findings and conclusions and
den[ied] the [state habeas] application.”
      Hernandez argues the persuasiveness of the findings are suspect because
the state district judge struck through many of the suggested findings that
would explicitly find specific government witnesses more credible than defense
witnesses.   The judge did not delete all the credibility findings.        More
importantly, he specifically readopted and attached as an exhibit the findings
made two years earlier on these issues. In the 2006 findings, the district judge
made choices about the credibility of those expert witnesses and the relevance
of their evidence that continued to apply to his reasoning in 2008.
      In Texas, a finding of mental retardation may be based in part on an IQ
test, but the scores an individual receives “are necessarily imprecise and must
be interpreted flexibly.” Clark, 457 F.3d at 444. “[A] person whose IQ tests
below 70 may not be mentally retarded.” Lewis v. Thaler, 701 F.3d 783, 792 (5th
Cir. 2012) (quoting Briseno, 135 S.W.3d at 7 n.24).
      The Court of Criminal Appeals has “indicated that a full-scale IQ score
should provide the basis for any assessment of intellectual functioning.”
Maldonado, 625 F.3d at 240 (citing Ex parte Hearn, 310 S.W.3d 424, 431 (Tex.
Crim. App. 2010)). Further, the state court may consider testimony from an
expert who did not personally administer Hernandez’s IQ test. See Lewis, 701


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F.3d at 795. The state court may also “discount . . . scores due to the incentive
to malinger.” Taylor v. Quarterman, 498 F.3d 306, 308 (5th Cir. 2007).
       The state district court properly considered more than Hernandez’s IQ in
determining whether he was mentally retarded. See Lewis, 701 F.3d at 792-93.
Although his IQ scores were within the range of mental retardation, other
evidence undermined the precise accuracy of those scores. When scaled to
Mexican norms, Hernandez scored exactly 70 on the one full-scale WAIS-III test.
Other tests discussed by the state district court either did not evaluate
Hernandez’s verbal performance or were to be used only for screening purposes.
Dr. Coons testified as to his concern about the accuracy of the IQ evaluations
because of their administration, particularly pointing out that Dr. Puente did not
incorporate sub-tests on which Hernandez scored highly due to the absence of
comparative norms.           The state district court found that Hernandez’s
“conversation and communication skills [we]re inconsistent with a diagnosis of
mental retardation and decline[d] to find Dr. Puente’s [contrary] explanations
to be credible.” The court reiterated this point in its supplemental findings,
noting that “the opinions offered by Dr. Puente as to adaptive behavior are not
supported by the evidence”— contrasting them with the contrary opinions of Dr.
Coons, which, it found, were “supported by the evidence.” Evidence further
established that Hernandez’s motivation to score lower could have been a factor
in the test results. Further, the state district court was presented with evidence
of Hernandez’s adaptive functioning that, the district court found, weighed
against a finding of mental retardation.4 See Briseno 135 S.W.3d at 8.

       4
         Although it did not refer to them as Briseno factors, the state district court made
detailed findings regarding Hernandez’s ability to act rationally, communicate effectively, care
for himself, maintain employment, assess right from wrong, follow rules, formulate plans and

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       We disagree with Hernandez that the state court neither examined all the
evidence nor applied the Briseno factors fairly. The Court of Criminal Appeals
adopted the state district court’s findings and thereby approved the lower court’s
credibility choices – some explicit, some implicit – and weighing of the evidence.
Though there were significant factual questions about Hernandez’s possible
mental retardation, Hernandez has not rebutted the presumption of correctness
given to the findings by clear and convincing evidence. We cannot conclude that
the state court decision “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” §
2254(d)(2). There was no error in the district court’s denial of Hernandez’s
Atkins claim based on the finding that he was not mentally retarded.5


       B. Motion to Expand the Certificate of Appealability
       Hernandez received a certificate of appealability only on his Atkins claim.
He seeks a certificate on his other claims, which requires that he make “a
substantial showing of the denial of a constitutional right.”                  28 U.S.C. §



carry them through, and use deception to further his own interests. The court found that the
capital offense and previous offenses involved forethought and planning. It considered his
sister’s affidavit in which she stated that during Hernandez’s childhood years, he “functioned
like a person of average intelligence,” “[took] care of himself,” “bathed and dressed in clean
clothes,” “had no problem managing his money,” “exhibited normal tendencies as to personal
hygiene and managing his affairs,” “attended school for approximately the same length of time
as she did,” and “had no problem maintaining employment.” It considered affidavits from
Hernandez’s trial counsel in which Attorney Pickell stated that he did not observe, in his
“lengthy and intense involvement with Mr. Hernandez, the significant impairment in memory,
judgment and language functioning which Dr. Martinez described”; and Attorney Garcia
described Hernandez as functionally capable with average adaptive behavior.
       5
         Because of this conclusion, we need not address the arguments as to whether the
onset of Hernandez’s alleged mental retardation occurred prior to the age of 18.

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                                  No. 12-70006
2253(c)(2). Hernandez must demonstrate “that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).
      We examine each of his remaining claims using this standard.
            1. Ineffective Assistance of Counsel
      Hernandez first argues he received ineffective assistance of counsel
because his attorneys failed to investigate and present mitigating evidence of
Hernandez’s childhood during the penalty phase of trial. To show he was
deprived of the right to effective assistance of counsel, Hernandez had to prove
(1) his “counsel’s performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
      Deficiency may exist if counsel failed “to make reasonable investigations
or to make a reasonable decision that makes particular investigations
unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521 (2003). The issue is “whether
the investigation supporting counsel’s decision not to introduce mitigating
evidence of the defendant’s background was itself reasonable.” Clark v. Thaler,
673 F.3d 410, 418-19 (5th Cir.), cert. denied, 133 S. Ct. 179 (2012).
      Even if Hernandez showed deficient performance, he was also required to
prove “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
      The state court denied habeas relief on Hernandez’s claim that he received
ineffective assistance of counsel because of a “failure to properly investigate and
present the defenses in the case, as alleged in the Petition.” Consequently, a
federal court may not grant habeas relief unless the state court’s decision was


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                                  No. 12-70006
“contrary to, or involved an unreasonable application of, clearly established
Federal law,” or the decision “was based on an unreasonable determination of
the facts.” 28 U.S.C. § 2254(d). When we apply the standards of both Strickland
and Section 2254(d) together, our “question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington
v. Richter, 131 S. Ct. 770, 788 (2011).
      As an initial matter, Hernandez fails to show how the state court’s decision
was contrary to federal law or involved an unreasonable application of it. The
state court determined, “The applicant was not denied effective assistance of
counsel . . . based on the alleged failure of counsel to conduct meaningful
mitigation investigation, as the evidence indicates there was a reasonable
investigation conducted.” That is the correct inquiry. Clark, 673 F.3d at 418-19.
      Evidence presented to the state district court revealed that Hernandez was
personally interviewed by three doctors who learned about his history, including
his abusive and deprived childhood. All three experts testified at trial and
presented evidence of their evaluations to the jury.
      Evidence also showed that counsel employed someone to travel to Mexico
and interview Hernandez’s mother and two siblings, each of whom provided
written declarations.    The interviews revealed detailed information about
Hernandez’s violent childhood circumstances and behavioral abnormalities. His
brother stated that Hernandez’s counsel never contacted him before trial. His
mother declared she did not remember whether counsel called her before the
trial began. Yet, Hernandez’s sister said counsel spoke with her before trial
about whether she could provide information that would help Hernandez, and
counsel sought to have Hernandez’s mother attend the trial.


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                                  No. 12-70006
      Counsel filed an affidavit with the court and explained that both
Hernandez’s sister and mother refused to attend the trial. Further, counsel did
not believe it was in Hernandez’s best interest to call his second sister as a
witness because she both refused and provided uncomplimentary statements
about Hernandez in a previous interview. Counsel’s strategy was to use experts
to explain Hernandez’s behavior instead of excuse it.
      Accordingly, we cannot conclude that jurists of reason would debate
whether there was a “reasonable argument that counsel satisfied Strickland’s
deferential standard.”    Richter, 131 S. Ct. at 788.       There is a reasonable
argument that Strickland was satisfied, and Hernandez has failed to make the
requisite showing for a certificate of appealability under 28 U.S.C. § 2253(c)(2).
            2. Conflict-Free Counsel
      Hernandez next argues he was deprived of his right to conflict-free counsel
because of his counsel’s prior representation of a client whose spouse testified at
trial. Hernandez first raised this issue in his third state-habeas petition, which
the Texas Court of Criminal Appeals dismissed as an abuse of the writ. The
federal district court held that this state procedural default barred his claim,
and the court alternatively denied the claim on its merits.
      Hernandez must show “that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling” and “that jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack, 529 U.S. at 478.
      A federal court is barred from reviewing a procedurally defaulted claim
unless there is “cause for the default and actual prejudice as a result of the
alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750


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                                      No. 12-70006
(1991).6 Hernandez argues that his state-habeas counsel’s performance caused
the procedural default. In Coleman, the Court held that such error “cannot
constitute cause to excuse the default in federal habeas” proceedings. Id. at 757.
The Court has recognized an equitable exception to this rule in cases in which
the inmate was legally barred from raising ineffective assistance claims on direct
appeal from his state conviction, and counsel was ineffective in the initial state-
habeas proceeding. Martinez v. Ryan, 132 S. Ct. 1309, 1315, 1320 (2012). The
Court recently held that the Martinez exception is applicable to Texas inmates
who had little practical opportunity to raise ineffective assistance claims on
direct appeal, despite not being legally barred from doing so. Trevino v. Thaler,
133 S. Ct. 1911, 1921 (2013) (overruling Ibarra v. Thaler, 687 F.3d 222 (5th Cir.
2012)).
       Even after this clarification of Martinez, Hernandez’s claim fails because
he has not shown any actual prejudice to excuse the procedural default. To show
“actual prejudice,” a petitioner “must establish not merely that the errors at his
trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008); see
Barrientes v. Johnson, 221 F.3d 741, 769 (5th Cir. 2000).
       A witness testified that she saw Hernandez stab an individual in an
encounter that occurred prior to the crime for which Hernandez was being tried.
That witness’s spouse was initially arrested for the stabbing but was
subsequently released from custody after Hernandez took responsibility and

       6
        Hernandez may also “demonstrate that failure to consider the claims [would] result
in a fundamental miscarriage of justice,” id., but he forfeited this argument in the district
court and on appeal.

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                                 No. 12-70006
later pled guilty to the stabbing. One of Hernandez’s attorneys in his capital
murder case previously represented the witness’s spouse. Thus, Hernandez
argues this former representation prevented his counsel from aggressively
challenging the witness’s testimony in the capital murder trial.
      To prove a Sixth Amendment violation, Hernandez would be required to
show “that an actual conflict of interest adversely affected counsel’s
performance.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). An “actual
conflict” means counsel was “compelled to compromise his or her duty of loyalty
or zealous advocacy.” Id. Hernandez must establish an “adverse effect,” which
may be shown by “evidence that some plausible alternative defense strategy or
tactic could have been pursued, but was not because of the actual conflict.” Id.
(quotation marks omitted).
      Hernandez’s argument fails because he is not able to make the requisite
showings and does not establish prejudice for his procedural default. Applying
the underlying standards, Hernandez does not show that he was prepared to
recant his responsibility for the stabbing or withdraw his guilty plea for which
he was currently imprisoned. He offers no evidence that counsel did not present
admissible evidence or pursue an alternative defense strategy because of an
actual conflict. In fact, Hernandez’s co-counsel at trial cross examined and
impeached the eyewitness’s testimony by showing she originally told police she
did not see who committed the stabbing.
      Accordingly, Hernandez has not shown that jurists of reason would debate
the district court’s procedural ruling and is therefore denied a certificate of
appealability on this claim. See Slack, 529 U.S. at 478.




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                                  No. 12-70006
            3. Prior Conviction
      Finally, Hernandez argues the state trial court erred by admitting
documentation of his prior Mexican conviction because such conviction was
unreliable. He contends the state district court’s explanation for its denial of
relief runs contrary to and involved an unreasonable application of Supreme
Court precedent.    He does not, though, make the required showing that
reasonable jurists could disagree with the district court’s conclusion that any
error was harmless in light of the other admitted evidence that showed he
previously committed murder and was imprisoned in Mexico.
      The district court’s denial of relief is AFFIRMED. Hernandez’s motion to
expand the certificate of appealability is DENIED.




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