   Case: 11-70017       Document: 00511774676         Page: 1     Date Filed: 03/01/2012




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

                                                                            FILED
                                                                           March 1, 2012
                                       No. 11-70017
                                                                           Lyle W. Cayce
                                                                                Clerk



RAMON TORRES HERNANDEZ,

                                                  Petitioner-Appellant,

versus

RICK THALER, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                  Respondent-Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 5:08-CV-827




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Ramon Hernandez filed a federal habeas corpus action to challenge his
2002 conviction of capital murder and his sentence of death. The district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-70017

denied the petition and denied a certificate of appealability (‘COA”), so Hernan-
dez asks this court to grant one. We deny the application.


                                         I.
      Hernandez was indicted on one count encompassing several crimes, includ-
ing killing Rosa Rosado (a) as part of a common scheme or course of conduct
along with killing two middle school girls in 1994, (b) in the course of an aggra-
vated sexual assault, (c) in the course kidnaping her, and (d) in the course of rob-
bing her. Relating to the common-scheme aspect of the one-count indictment,
two middle school girls, Sarah Gonzales and Priscilla Almares, were abducted
in San Antonio in December 1994. The next day, their bodies were found in the
brush by a road. Both had been sexually assaulted and asphyxiated. An anal
swab of Gonzales found sperm, but a vaginal slide found none. DNA testing
could not match the sperm at the time, but a 2001 test showed Hernandez’s DNA
was a match.
      Relating to the remaining parts of the indictment, Rosado disappeared in
San Antonio in March 2001. The facts are in dispute, but according to Hernan-
dez’s confession, while driving with his girlfriend, Abel Abdygapparova, Hernan-
dez, and Santos Minjarez saw Rosado at a bus stop. Minjarez tried to grab her
purse, and when she resisted, he pulled her into the car and covered her head,
and Hernandez drove away. They stopped at Hernandez’s house to get tape to
bind Rosado, gagged her, and went to a motel, where she was raped and killed.
Her body was cleaned using bleach and a douche. Abdygapparova was sent to
get a shovel, which was used to bury the body. Hernandez and Abdygapparova
took Rosado’s possessions and items used to cover her and burned them or dis-
persed them by tossing them from the car as they drove after her death.
      Two crucial statements were made to police. Abdygapparova provided a
written statement of the abduction, robbery, sexual assault, and murder of

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                                      No. 11-70017

Rosado. She also led police to the body, the motel where the events occurred,
and the car she had sold after using it in the crime. Although Hernandez ini-
tially denied participating and asked for an attorney, thus ending his first inter-
rogation, the next day he asked to speak to the detectives again. He gave a
statement confessing to participation in the crime but saying it was Minjarez
who had raped and killed Rosado.
       A jury found Hernandez guilty of the crimes charged in the indictment,
and he received a sentence of death.


                                             II.
       Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal appellate courts do not obtain jurisdiction over a habeas case
unless a COA has been granted. Moore v. Quarterman, 517 F.3d 781, 783 (5th
Cir. 2008). The district court denied a COA, so for this court to grant one, we
must find 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 fur-
ther.” Slack v. McDaniel, 529 U.S. 473, 483 (2000) (internal quotation marks
omitted). Hernandez raises several arguments on appeal, but none deserves
encouragement to proceed.
       Hernandez argues that his confession was involuntary and thus inadmis-
sible. He was first questioned after Detective Carian arrested him and read him
his rights. During that questioning, Hernandez denied participating in the mur-
der of Rosado and eventually asked for his lawyer, at which point the interroga-
tion ceased.1


       1
         Hernandez mentions in his brief that his initial requests for a lawyer were ignored,
but he does not argue it here. He raised this issue at trial in an attempt to block admission
of the confession, but the point was rejected.

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                                  No. 11-70017

      Hernandez was then booked into jail and given Prozac. He said that he
then asked for a doctor, and when he became insistent, the mental health social
worker called a detention officer. Hernandez also claims that he was experienc-
ing a panic attack from then through his interrogation by Carian, because he
was suffering from withdrawal from the drug Klonopin. He had been taking
Klonopin for PTSD and anxiety disorder until his doctor recently tried to wean
him off it. Hernandez testified that he resisted the reduction of Klonopin by get-
ting some from his uncle, but eventually that ran out, and he began experiencing
withdrawal. The trial court denied the motion to suppress, and each subsequent
court has found the confession voluntary.
      Custodial statements are admissible if the accused (1) initiated further
discussion with the police and (2) knowingly and intelligently waived the previ-
ously invoked right. Smith v. Illinois, 469 U.S. 91, 95 (1984). Hernandez’s claim
that he asked for the doctor but was instead brought to speak with detectives is
an argument that he did not initiate that discussion. The mental health worker
testified, however, that Hernandez came to her and said he wanted to get some-
thing off his chest. The booking sergeant the social worker contacted, who then
called Carian, testified that he would not have known Hernandez wanted to
speak with Carian unless Hernandez had identified Carian. Furthermore, when
detectives arrived to speak to Hernandez, he did not act surprised to see them
or resist speaking, and as soon as Carian asked him “what’s up,” Hernandez
began discussing the case.
      To counterbalance that weighty evidence from multiple witnesses, Hernan-
dez offers only his testimony that he asked for a doctor. Because the trial court’s
credibility determination has already gone against him, in light of the totality
of the circumstances, reasonable jurists could not disagree over whether Hernan-
dez initiated further discussion with the police.
      Nor could reasonable jurists disagree on whether Hernandez’s waiver was

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                                  No. 11-70017

knowing and voluntary. Contesting the voluntariness of a confession requires
the defendant to showSSlooking at the totality of the circumstancesSSthat but for
the police coercion, he would not have confessed. Muniz v. Johnson, 132 F.3d
214, 219 (5th Cir. 1998). Hernandez’s argument that his confession was invol-
untary revolves around his suffering Klonopin withdrawal. He argues that he
confessed because it was the only way he would get more Klonopin.
      For a confession to be rendered involuntary because of mental condition,
there must be coercive activity by the police. Colorado v. Connelly, 479 U.S. 157,
165 (1986). No evidence suggests the police withheld medical treatment. First,
according to Hernandez’s physician, Dr. Stowe, Prozac should have been enough
to treat him, and Hernandez was given Prozac. Also, neither detective had
authority to withhold medical treatment at the jail. Despite Hernandez’s testi-
mony that he was having an anxiety attack during the first interview and was
sweating profusely, shaking uncontrollably, and felt blood pulsing through his
hands, no witnesses testified to Hernandez’s showing outward symptoms. Addi-
tionally, his vitals were normal when checked on his admittance to jail.
      The only evidence supporting Hernandez’s claim that he was experiencing
withdrawal symptoms was his and his mother’s testimony that when he called
her, he sounded as though he was having a panic attack. Again, the trial court,
which had the chance to weigh the witnesses’ credibility in live testimony, found
Hernandez less credible. Considering the totality of the circumstances, reasona-
ble jurists could not disagree regarding the voluntariness of the confession.
      Hernandez also contends that he received ineffective assistance of counsel
because his trial counsel did not develop the claim that his confession was invol-
untary on account of Klonopin withdrawal. To succeed on a claim of ineffective
assistance, the defendant must show deficient performance and that the perfor-
mance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Taking AEDPA deference into account, the question becomes whether

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                                  No. 11-70017

there is any reasonable argument that counsel satisfied the Washington stan-
dard. Premo v. Moore, 131 S. Ct. 733, 740 (2011) (quoting Harrington v. Richter,
131 S. Ct. 770 (2011)).
      Neither prong of Washington is satisfied. Performance is deficient where,
given all the circumstances, it falls below an objective standard of reasonable-
ness. Washington, 466 U.S. at 688. Professional norms play a role in the deter-
mination, but overall there are multiple ways effective assistance can be pro-
vided, and the court’s examination must be highly deferential in favor of coun-
sel’s having been effective. Id. at 689-91. Part of being effective counsel includes
investigating substantial lines of defense. Id. at 680-81. Demonstrating preju-
dice requires the defendant to show that but for that objectively unreasonable
misconduct of his counsel, the result of the proceeding would have been different.
Id. at 694.
      Hernandez’s trial counsel conducted an appropriate investigation and rea-
sonably did not pursue the withdrawal defense. Nothing in Hernandez’s medical
record indicates that he was experiencing Klonopin withdrawal; the record
showsSSto the contrarySSthat he had been successfully weaned off the drug.
Additionally, none of the witnesses gave any indication that Hernandez was dis-
playing symptoms of Klonopin withdrawal. Finally, Hernandez never told his
trial counsel he was experiencing withdrawal symptoms during questioning. At
the suppression hearing, counsel demonstrated that he had reviewed Hernan-
dez’s medical records by asking cross-examination questions about Hernandez’s
medical condition, but based on the evidence provided to Hernandez’s trial coun-
sel, he reasonably did not find that arguing that the confession was involuntary
because of Klonopin withdrawal was a viable defense.
      Nor can Hernandez demonstrate prejudice. All the previously described
evidence weighed in favor of finding the confession voluntary. Hernandez’s
vitals upon entering prison showed no Klonopin withdrawal, no witness recalled

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                                        No. 11-70017

any visible symptoms, and there is nothing besides Hernandez’s own testimony
to suggest the police deliberately withheld Klonopin to obtain a confession.
Though Hernandez was given Klonopin after he confessed, he admitted that he
specifically requested it, and his testimony suggested he believed he could have
gotten any drug that he could convince the prison staff would keep him calm.
With the evidence against Hernandez, even if counsel had presented the medical
evidence and testimony regarding Klonopin withdrawal, Hernandez cannot show
a substantial probability that the result would have been different.


                                              III.
       Hernandez maintains that his counsel was ineffective for not arguing that
the statute under which he was convicted of engaging in a common scheme by
murdering the school girls and Rosado was unconstitutionally vague as applied
to him. Because Hernandez’s claim is for ineffective assistance of counsel, the
question on appeal is whether his lawyer should have argued, in a motion to
quash, that the law was unconstitutionally vague as applied to Hernandez. The
Court of Criminal Appeals held that Hernandez’s argument was not cognizable
in a pretrial motion to quash the indictment, because the argument relied on evi-
dence from the trial, and one can quash only indictments that are insufficient on
their face. A federal habeas court is bound by a state court’s interpretation of
state law and so generally cannot second-guess such state court determinations.2
       Attempting to defeat the argument that Texas courts procedurally bar
such a claim, Hernandez reminds us that only firmly established and regularly
followed state procedural rules will prevent federal review. Ford v. Georgia, 498


       2
          Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state
court’s interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”); Young v. Dretke, 356 F.3d 616, 628
(5th Cir. 2004) (“[W]e cannot review the correctness of the state habeas court’s interpretation
of state law.”).

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                                       No. 11-70017

U.S. 411, 423-24 (1991). Ford does not help Hernandez, however, because this
procedural bar is regularly applied. The Texas court cited multiple cases that
say a motion to quash cannot be supported by evidence.3 Even if in Corwin v.
State, 870 S.W.2d 23 (Tex. Crim. App. 1993) the court considered the question
on the merits rather than dismissing it according to the procedural bar, Hernan-
dez has not provided any other cases in which the procedural bar was so
bypassed. Occasional lapses in an otherwise regularly applied rule do not invali-
date a state’s procedural bar.4 Because Texas precedent shows that Texas courts
regularly find such claims barred, Ford offers Hernandez no support. Thus, his
attorney was not ineffective for deciding against raising this claim in favor of
presenting a different argument he believed was more meritorious.


                                             IV.
       Hernandez avers that his trial counsel was ineffective for not objecting to
the prosecutor’s statement during closing that suggested the victim’s families
would want a death sentence. During the punishment phase of trial, Hernandez
called a string of family members as witnesses who pleaded that his life be
spared. In its closing arguments at the punishment phase, the prosecution
responded to the emphasis on that testimony by saying:

       And I respectfully suggest to you, and I want to commend all these
       folks for how well they behaved throughout this trial. And don’t you
       know that if they could, they would stand up here and cry and tell
       you what the believe the proper answer to those questions is, are?


       3
         E.g., State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (dissenting op.
adopted on reh’g); Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005); Carpenter v.
State, 477 S.W.2d 22, 23 (Tex. Crim. App. 1972).
       4
         See Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000) (noting a procedural bar
was previously held adequate because it was “strictly or regularly applied evenhandedly to the
vast majority of similar claims” (quoting Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.
1998))).

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                                      No. 11-70017

Under Texas law, the wishes of the victim’s family regarding the defendant’s
punishment are not admissible. Simpson v. State, 119 S.W.3d 262, 272 (Tex.
Crim. App. 2003). Therefore, if this comment was indicating that the families
would want the death penalty, then it was objectionable.5 The question under
AEDPA becomes whether there is an objectively reasonable rationale that would
explain why trial counsel did not object. See Premo, 131 S. Ct. at 740.
       The district court correctly noted that there was an objectively reasonable
rationale for not objecting to the prosecutor’s passing reference. The main thrust
of Hernandez’s case in the punishment phase was the emotional testimony of his
family’s pleading for his life. Defense counsel may have thought that objecting
to a passing emotional argument would have undermined the legitimacy of his
own emotional appeals. The jury might have found it disingenuous to make
emotional arguments and then complain when the other side tries to do the
same. Counsel can choose not to make certain objections for strategic reasons
to avoid focusing the jury’s attention on those arguments. The court was rea-
sonable in believing that Hernandez’s lawyer may have weighed the effect of
making an objection and determined that because the statement was not espe-
cially harmful, drawing additional attention to it would do more to damage his
case than to benefit it.
       Although Hernandez argues that Moore v. Johnson, 194 F.3d 586, 604 (5th
Cir. 1999), directs us to determine that his counsel made no strategic decision
worthy of deference, Moore is a pre-AEDPA opinion. Id. at 590-91. AEDPA
grants state court determinations more deference. Thus, instead of refusing to
recognize counsel’s actions as a tactical decision any time this court feels there
is not enough record evidence that counsel made a considered tactical choice, a

       5
         The Court of Criminal Appeals determined that the prosecutor was not necessarily
referencing the families of the victims with this comment. If he was not, then the statement
was not even objectionable. But for the reasons provided, even if the comment did reference
the victims’ families, counsel’s failure to object is not ineffective assistance.

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federal court considering a habeas petition can grant relief only where the state-
court adjudication resulted in a decision that is “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” See id. The state habeas court was
not unreasonable in concluding that Hernandez’s defense counsel’s not objecting
to that passing comment was an appropriate tactical decision.6
       Even if counsel was deficient in not objecting, Hernandez cannot show pre-
judice, which is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Harrington, 131
S. Ct. 770, 787 (2011). Showing that the errors had some conceivable effect is
not enough; the error must be so serious that it deprived the defendant of a fair
trial the result of which was reasonable. Id. at 787-88.
       The evidence against Hernandez at the punishment phase was already
substantial. As the district court explained, the evidence established beyond a
reasonable doubt that
       (1) petitioner participated in the abduction and robbery of Rosado,
       (2) petitioner stood guard while Minjarez sexually assaulted Rosado,
       (3) petitioner was present at the motel with Minjarez when Rosado
       was killed, (4) petitioner directed Abdygapparova to purchase the
       shovel used to bury Rosado’s body, (5) petitioner had previously
       been convicted, pursuant to a guilty plea, of burglary with intent to
       commit sexual assault in connection with an incident in which peti-
       tioner lured his victim’s husband away from home, locked his vic-
       tim’s husband in petitioner’s apartment, and then went back to sex-
       ually assault the victim, (6) petitioner participated in numerous
       burglaries, at least one of which resulted in petitioner serving a

       6
          Hernandez argues that an instruction could have cleared up any misunderstanding
as to why only the defense can present emotional appeals regarding the proper punishment.
But it is not unreasonable that defense counsel and the court may have different opinions on
how much impact the objection will have on the jury. The court may have thought an instruc-
tion explaining the law would fully resolve the matter, but the defense attorney may have felt
the jury would discount his witnesses’ testimony after the objection, despite an explanatory
instruction. Thus, just because the court could have made an explanatory instruction to the
jury does not mean the lawyer was ineffective for refusing to object.

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                                 No. 11-70017

      prison sentence and another of which involved petitioner leading
      police on a dangerous, high speed, chase, (7) [petitioner] deposited
      his semen inside the rectum of a twelve year old girl only hours
      before her lifeless body was found beside that of her equally bat-
      tered thirteen-year-old cousin “dumped” in the high brush in an iso-
      lated location only days before Christmas, (8) the girls’ bodies and
      Rosado’s body revealed all three had been bound, severely beaten
      about the head and face, violently sexually assaulted, and asphyxi-
      ated in a manner suggesting they had been unable to offer much
      resistance as they were strangled to death, (9) petitioner had come
      very close to escaping from the BCADC only weeks before the start
      of his trial, and (10) petitioner had never expressed any sincere
      remorse or contrition for his role in any of the three abductions,
      rapes, or murders.

Memorandum opinion and order denying relief, at 124-25.
      There was also mitigating evidence, including the traumatic death of Her-
nandez’s father when Hernandez was a teenager and the emotional pleas of his
family. The first mitigating factor, however, was weakened by evidence that
Hernandez engaged in delinquent behavior and fathered children out of wedlock
before his father was killed. Moreover, the jury likely already believed that the
victim’s families wanted the man who killed their loved ones executed. Hinting
that fact to the jurors does not tell them anything they did not already know.
There is no reasonable probability that an instruction telling the jury to disre-
gard the suggestion that the victim’s families wanted Hernandez executed would
have resulted in a different sentence.


                                         V.
      Hernandez argues his appellate counsel was ineffective for not complain-
ing on appeal that the trial court should have admitted either Abdygapparova’s
written statement or hearsay testimony by Carian under the doctrine of optional
completeness. To succeed on a claim of ineffective assistance of appellate coun-
sel, a defendant must satisfy the two-prong Washington test. Smith v. Robbins,

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                                  No. 11-70017

528 U.S. 259, 285 (2000). The district court found two reasons why the failure
to raise this objection was not ineffective assistance: (1) Counsel believed the
error was not properly preserved, and (2) any error would have been harmless.
      First, the district court found that it was not unreasonable for the appel-
late lawyer to conclude that the error had not been properly preserved. For a
complaint to be preserved for appellate review, the record has to show there was
a timely objection, request, or motion that stated, with particularity, the grounds
for the requested ruling unless it is evident from context. TEX. R. APP. P. 33.1(a).
The doctrine of optional completeness states:
       When part of an act, declaration, conversation, writing or recorded
      statement is given in evidence by one party, the whole on the same
      subject may be inquired into by the other, and any other act, declar-
      ation, writing or recorded statement which is necessary to make it
      fully understood or to explain the same may also be given in evi-
      dence, as when a letter is read, all letters on the same subject
      between the same parties may be given. “Writing or recorded
      statement” includes depositions.

TEX. R. EVID. 107.
      The record shows that trial counsel never mentioned the rule of optional
completeness when requesting that the court admit the statement. If, however,
the context makes clear that optional completeness was the basis for the objec-
tion, it is still preserved. In context, the trial lawyer’s arguments show he was
objecting to an allegedly false impression provided by Carian’s testimony under
the doctrine of optional completeness. Carian testified that he told Hernandez
all the information he had from Asel’s statement when interrogating Hernandez.
Hernandez’s counsel tried to elicit that Carian had not told him that Asel did not
say in her statement that Hernandez killed or raped Rosado. He explained that
the purpose of that line of questioning was to correct what he felt was a false
impression conveyed to the jury that Asel had told police that Hernandez, her
boyfriend, had murdered Rosado.

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                                  No. 11-70017

      Thus, counsel made it evident that he was intending to correct what he felt
was a false impression left by incomplete disclosure of Asel’s previous statement
to the police by seeking to have the rest of the statement admitted. Such a situ-
ation easily implicates the rule of optional completeness and was enough for the
trial court to become aware that that was the basis of the objection.
      Hernandez’s attorney was not deficient, however, because he was justified
in believing any error resulting from not admitting the rest of the statement was
harmless. Appellate advocates research all available arguments and determine
which are most likely to bring success, rather than raising every non-frivolous
contention. Smith, 528 U.S. at 288. Had the remainder of Abdygapparova’s
statement been admitted, it would not have helped exonerate Hernandez. The
statement discussed Hernandez’s extensive participation in the crime.              It
includes his telling Abdygapparova to get a shovel (though Rosado was still
alive), she asks whether they killed her when told Rosado is gone, and she was
not in the room when Rosado was killed, so she cannot say whether Hernandez
killed Rosado. The exchange between Abdygapparova and Minjarez, in which
she asked, “Did you kill her?,” does not plainly indicate whether she was asking
Minjarez whether he did it or whether, instead, he and Hernandez did it. More-
over, Hernandez’s own statement reiterated his extensive participation.
      The Texas law of parties further supports the harmlessness of refusing to
admit Abdygapparova’s full statement:

        (a) A person is criminally responsible for an offense committed by
      the conduct of another if: (1) acting with the kind of culpability
      required for the offense, he causes or aids an innocent or nonrespon-
      sible person to engage in conduct prohibited by the definition of the
      offense; (2) acting with intent to promote or assist the commission
      of the offense, he solicits, encourages, directs, aids, or attempts to
      aid the other person to commit the offense; or (3) having a legal
      duty to prevent commission of the offense and acting with intent to
      promote or assist its commission, he fails to make a reasonable

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                                  No. 11-70017

      effort to prevent commission of the offense.

        (b) If, in the attempt to carry out a conspiracy to commit one fel-
      ony, another felony is committed by one of the conspirators, all con-
      spirators are guilty of the felony actually committed, though having
      no intent to commit it, if the offense was committed in furtherance
      of the unlawful purpose and was one that should have been antici-
      pated as a result of the carrying out of the conspiracy.

TEX. PENAL CODE ANN. § 7.02 (West 2003). Thus, even if Hernandez did not
murder Rosado, he could be convicted if he aided in the ways described above.
      With all the evidence of Hernandez’s participation, including helping
abduct Rosado, having Abdygapparova get tape to bind her, standing guard
while she was sexually assaulted, and sending Abdygapparova to buy a shovel
used to bury Rosado after she was murdered, it was reasonable for the appellate
lawyer to conclude that an appellate court would find the trial’s result would
have been the same if Abdygapparova’s full statement were admitted. Choosing
not to plead weak arguments on appeal but to focus on those most likely to suc-
ceed forms the core of effective appellate advocacy. Smith v. Murray, 477 U.S.
527, 535-36 (1986). Thus, even though counsel did not prevail on appeal, drop-
ping this weak argument in favor of points he believed were stronger was a legi-
timate tactical decision that is not ineffective assistance.
      Because of the strength of the evidence presented, and given that no part
of the statement refutes Hernandez’s alleged participation in murdering Rosado,
Hernandez also suffered no prejudice from the court’s refusal to admit Abdygap-
parova’s statement in full. As explained, the evidence was strong enough, partic-
ularly under the Texas law of parties, that admitting the statement would not
have changed the result. Though nothing in the statement directly says Hernan-
dez killed Rosado, it does describe his participation in the crime. The closest the
statement comes to exculpating him is where Abdygapparova discusses return-
ing to the hotel after Rosado was killed:

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                                 No. 11-70017

         Santos opened the door. He wouldn’t let me in, but walked me
      back to the car. He was telling me not to go in there. I asked him
      why, what did they do in there. He said she is gone. I said what do
      you mean, you killed her? He said “yes, she is gone.” He told me to
      wait outside. I was waiting by the car. Santos came back out and
      called me to the room. I went into the room and saw her laying
      down on the floor. She didn’t have a towel on her head anymore and
      she had no clothes on. That is when I saw her body. She was dead.
      She wasn’t moving, and she didn’t have the towel on her head or the
      tape on her wrists. Her eyes were closed, and there was some blood
      on the right side of her face. I couldn’t tell where it was coming
      from. They told me they have to bury her.

      Although Abdygapparova did ask Minjarez “you mean you killed her” and
he answered “yes, she is gone,” before that she asked what they had done, so
“you” could as easily have been plural for both Hernandez and Minjarez as it
could have been Minjarez alone. Further, because Abdygapparova was buying
a shovel, she was gone during the murder. Overall, nothing in the statement
exculpates Hernandez.
      The jury already knew Abdygapparova was not present for the killing, so
the full statement, showing that she indicated that Hernandez did it, adds noth-
ing. Even if it does not say directly that he killed her, the statement describes
Hernandez as a major participant and never clears him, so introducing all of it,
with the other evidence, would not have changed the jury’s impression that Her-
nandez’s girlfriend turned him in to the police for this crime. Thus, even if the
court should have admitted the full statement, Hernandez suffered no prejudice
from its failure to do so.
      Because none of Hernandez’s arguments merits further review, the
request for a COA is DENIED.




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