     Case: 16-70011      Document: 00513758162         Page: 1    Date Filed: 11/14/2016




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

                                      No. 16-70011                           FILED
                                                                     November 14, 2016
                                                                        Lyle W. Cayce
RAUL CORTEZ                                                                  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 Eastern District of Texas
                              USDC No. 4:13-CV-83


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raul Cortez, a state prisoner sentenced to death in 2009 for the murder
of Austin York, in connection with the murders of Rosa and Mark Barbosa,
York, and Matt Self during a robbery, seeks a certificate of appealability
(“COA”) with respect to the following claims:             (1) ineffective assistance of
counsel in the guilt-innocence phase for (a) failing to interview witnesses
Gustavo Rodriguez and John Brown; and (b) failing to object to the State’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-70011
reference to and use of otherwise inadmissible polygraph evidence; and (2) a
Brady 1 violation premised on allegedly misrepresenting whether a plea
agreement had been reached with witness Eddie Williams before Cortez’s trial.
Concluding that reasonable jurists would debate the district court’s resolution
of only one of these claims, we DENY a COA as to issues 1(a) and 2. Given the
low threshold for a COA and the instruction to resolve close questions in death
penalty cases in favor of granting a COA, we GRANT a COA on issue 1(b).
      The facts of the offense are described in detail in the opinion of the Texas
Court of Criminal Appeals, so we address them only briefly here. See Cortez v.
State, No. AP-76101, 2011 WL 4088105, at *1–4 (Tex. Crim. App. Sept. 14,
2011) (not designated for publication) (“Cortez I”). The State alleged that
Cortez, his brother, Javier, and Eddie Williams conspired to steal from Rosa
Barbosa who was believed to have access to money from her work as a cashier
at a local check-cashing establishment and to keep some of that money in her
home. During the attempted robbery at her home, the other three victims
arrived unexpectedly. Ultimately, all four were shot and died. Cortez is
alleged to have participated in all of the killings and to have personally shot
one of the men. During the course of the investigation of the shootings, several
people confessed, but their confessions were later deemed to be false. One of
the key witnesses at Cortez’s trial was alleged co-conspirator, Eddie Williams.
      In addition to denying relief on Cortez’s direct appeal, Cortez I, 2011 WL
4088105, at *26, the Texas Court of Criminal Appeals denied habeas relief, Ex
parte Cortez, No. WR-78666-01, 2013 WL 458197, at *1 (Tex. Crim. App. Feb.
6, 2013) (not designated for publication) (“Cortez II”). Thereafter, he filed an
application for federal habeas relief pursuant to 28 U.S.C. § 2254 in federal
district court. In a lengthy and thorough opinion, the district court denied


      1   Brady v. Maryland, 373 U.S. 83 (1962).
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                                 No. 16-70011
relief and also denied a COA. Cortez v. Director, No. 4:13-cv-00083, 2016 WL
1228780 (E.D. Tex. Mar. 29, 2016) (“Cortez III”). Cortez then filed a timely
notice of appeal the same day.
      The standards for a COA in such a case are well settled. Cortez must
demonstrate that his claims of constitutional violations are such that jurists of
reason would debate the district court’s disposition of the same. Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000). We are charged with reviewing the
case only through this prism and not deciding the ultimate merits. Miller-El
v. Cockrell, 537 U.S. 322, 337 (2003). In a case under § 2254, where the state
determined the issues on the merits, we are required to give deference to the
state court’s resolution. In determining whether to grant a COA, then, we
must approach the debatability of the district court’s decision through the lens
of AEDPA deference.      See Cullen v. Pinholster, 563 U.S. 170, 190 (2011)
(AEDPA prescribes a highly deferential standard for federal courts reviewing
habeas petitions challenging state court determinations on the merits). As
well, we must assess the COA question in a case asserting ineffective
assistance of counsel in light of the well-established standards of Strickland v.
Washington, 466 U.S. 668 (1984), which are deferential to strategic decisions
of counsel. However, in a death penalty case, doubts about granting a COA
should be resolved in favor of a grant. Escamilla v. Stephens, 749 F.3d 380,
387 (5th Cir. 2014).
      With these principles in mind, we turn to the allegations Cortez raises.
      Witnesses.     Cortez faults counsel for failing to interview Gustavo
Rodriguez who allegedly saw “three black guys,” who, Cortez contends, could
not have included him as he is a “light-skinned” Hispanic man. Additionally,
some of the prior confessors were African American. Cortez contends that his
attorneys did not interview Rodriguez. One of the attorneys, John Tatum,
testified at the state habeas evidentiary hearing that one of his investigators
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interviewed Rodriguez and decided that much of his testimony would
corroborate that of Eddie Williams, whom Tatum sought to discredit as the
main witness against Cortez. Another of Cortez’s lawyers, Richard Franklin,
echoed the concern that Williams’s testimony was otherwise uncorroborated
but would have been corroborated by Rodriguez. Williams had told the police
that all three men were dressed in black and wearing ski masks, with slits only
for their eyes and mouth. Given counsel’s strategy of attacking the police
investigation and proffering numerous other potential perpetrators, the
attorneys did not want to do anything that would verify any of Williams’s story.
The state court opinion concluded that the attorneys had investigated
Rodriguez and made a strategic decision not to call him. The district court
noted that claims of uncalled witnesses are not favored and that strategic
decisions of counsel made after a thorough investigation are “virtually
unchallengeable.” Cortez III, 2016 WL 1228780, at *10 (quoting Strickland,
466 U.S. at 690–91).
      We conclude that jurists of reason would not debate the district court’s
conclusion that the state court’s decision was not contrary to, or an
unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States and did not result in a decision that
was based upon an unreasonable determination of the facts in light of the
evidence presented. See id. We DENY a COA on this claim.
      Turning to the other witness at issue, John Brown, Cortez alleges that
his counsel was ineffective in failing to call Brown and in relying solely on the
State’s investigation of Brown in making that determination. Cortez contends
that Brown would have provided an alibi for the time of the murders and that
his attorneys should have interviewed him. Brown gave an affidavit that was
inconsistent with previous statements to police that were very muddled as to
the timing of Brown’s interactions with Cortez in the relevant time period.
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Tatum testified that he watched the tape of Brown’s police interview,
concluded that Brown would make a “terrible witness,” and specifically
discussed calling Brown with Cortez, who agreed with the decision not to call
Brown. Franklin testified that Brown was the “only living human being who
could put Cortez in [the city where the murders occurred] on the day of the
murders.” The state court, after considering all of the evidence, concluded that
Brown would have hurt Cortez’s case and also would have shown Cortez to be
a remorseless person. Similar to Rodriguez, the district court assessed the
cases regarding uncalled witnesses and strategic calls and concluded that the
state court’s decision was not contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court of the
United States and did not result in a decision that was based upon an
unreasonable determination of the facts in light of the evidence presented. Id.
at *20. Because we conclude that reasonable jurists would not debate the
district court’s conclusion, we DENY a COA on this claim.
      Polygraph. Cortez argues that his attorneys were ineffective for failing
to object to the introduction of evidence that other potential suspects and star
witness Williams were subjected to polygraph examinations. As to the former,
the testimony further showed that after those examinations, the police no
longer considered those people to be suspects. Cortez argues that this evidence
is clearly inadmissible under state law and his counsel should have sought a
motion in limine to keep this evidence out and/or objected when it was offered.
For their part, his attorneys testified that they did not file a motion in limine,
offering no reason for failing to do so but that once the matter was brought up
at trial, they chose to forego objecting for strategic reasons.
      A COA should be granted if jurists of reason could debate an issue; “a
claim can be debatable even though every jurist of reason might agree, after
the COA has been granted and the case has received full consideration, that
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petitioner will not prevail.” Miller-El, 537 U.S. at 338. If we are in doubt about
whether to issue the COA in a death penalty case such as this one, we should
grant it. Escamilla, 749 F.3d at 387. Although we have considerable doubt
about Cortez’s ultimate success on this claim, we conclude that it is debatable
enough that it deserves encouragement to proceed further. We thus GRANT a
COA on the question of whether Cortez’s counsel was constitutionally
ineffective for failing to prevent or object to the admission of evidence about
polygraph examinations of other suspects and witness Williams.
      Brady. Cortez’s Brady claim is based upon his contention that Williams
denied having any kind of “deal” with the district attorney, yet he was later
sentenced only to twenty years after pleading guilty to three of the murders
and reaching a plea deal with the state under which he will be eligible for
parole in July of 2017. Undoubtedly, if the state had an agreement with
Williams prior to his testimony and failed to disclose it to the defense, Cortez
would have a claim that would be debatable by jurists of reason. See United
States v. Davis, 609 F.3d 663, 696 (5th Cir. 2010) (noting that a Brady violation
occurs “when a cooperating witness denies having a plea agreement and the
prosecutor fails to correct the misstatement” (citation omitted)). However, the
state contends and offered evidence to the effect that the plea agreement with
Williams was not reached until February of 2010, one year after Cortez’s trial.
The lead prosecutor in the Cortez trial testified that he never met with
Williams prior to his appearance as a witness at Cortez’s trial and did not
instruct or authorize anybody in his office to do so.       He testified that in
discussions with Williams’s counsel prior to Cortez’s trial, the prosecutor
specifically stated that he was not making any promise of leniency or plea
recommendation in exchange for the testimony and that any such discussions
would occur only after the Cortez trial. Williams’s attorney testified to the
same basic facts. Cortez, in turn, argued that there “must have been a deal”
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                                 No. 16-70011
because no one would testify as Williams did without one. The state court
concluded that there was no pre-existing agreement based upon the testimony
of counsel and Williams himself. Accordingly, there was no violation because
there was nothing to disclose.
      The district court noted that Cortez “uses the term ‘charade’ in disputing
the state court findings, but he has not rebutted the presumption of correctness
that must be accorded to the findings with clear and convincing evidence, as
required by § 2254(e)(1).” Cortez III, 2016 WL 1228780, at *32. As in the
district court, Cortez offers us only his belief and supposition that the
prosecutor, Williams, and Williams’s attorney must be lying. We conclude that
reasonable jurists would not debate the district court’s resolution of this claim
and DENY a COA on this claim.
      Accordingly, we GRANT a COA on the following issue: whether Cortez’s
counsel was constitutionally ineffective for failing to prevent or object to the
admission of evidence about polygraph examinations of other suspects and
witness Williams. As to this issue, we note that it appears to have been fully
briefed by the parties. Nevertheless, in order to insure complete briefing, we
will allow for additional briefing now that a COA has been granted; however,
repetition is to be avoided, and if the parties wish to rest upon the briefs
already filed, they may do so. See Butler v. Stephens, 600 F. App’x 246, 248 n.4
(5th Cir. 2015). Any additional briefing on this issue should be filed by the
petitioner within thirty days of this order, and the state may respond within
thirty days thereof. Extensions will be granted only by order of this panel for
exceptional circumstances shown.
      All other relief is DENIED.




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