     Case: 15-70015   Document: 00515057941    Page: 1   Date Filed: 07/31/2019




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

                                                                     FILED
                                                                   July 31, 2019
                                No. 15-70015
                                                                  Lyle W. Cayce
                                                                       Clerk

CARLOS MANUEL AYESTAS, also known as Dennis Zelaya Corea,

             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


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, SOUTHWICK, and HO, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Carlos Manuel Ayestas is a prisoner on death row in Texas.            We
previously affirmed the district court’s denial of his request under 18 U.S.C.
§ 3599(f) for investigatory funding because he had not shown a “substantial
need” that made the funds “reasonably necessary” to the representation. The
Supreme Court held the statute does not require a showing of “substantial
need” and remanded with instructions to consider only whether funding is
“reasonably necessary.”
    Case: 15-70015    Document: 00515057941     Page: 2   Date Filed: 07/31/2019



                              No. 15-70015
      We conclude that investigatory funding is not reasonably necessary
because nothing would establish the ineffectiveness of state-habeas counsel, a
gateway requirement for him to overcome the procedural default of his claim
that his trial counsel was ineffective for failing to present certain mitigating
evidence of substance abuse and mental illness. AFFIRMED.


              FACTUAL AND PROCEDURAL BACKGROUND
      In 1997, Carlos Manuel Ayestas was convicted of murdering Santiaga
Paneque, a 67-year-old Houston woman, after he and two accomplices broke
into her home one morning. Paneque’s son discovered her body when he
returned home for lunch. He testified at sentencing that it had been important
to his mother that he become a United States citizen, and that he had wanted
her at his naturalization ceremony, which occurred two days after her death.
The Texas Court of Criminal Appeals affirmed Ayestas’s conviction and death
sentence in 1998; that court denied his application for a writ of habeas corpus
in 2008.
      We have previously described in detail Ayestas’s federal-habeas
proceedings. Ayestas v. Stephens, 817 F.3d 888, 892-94 (5th Cir. 2016), vacated
sub nom. Ayestas v. Davis, 138 S. Ct. 1080 (2018). We explain here some recent
developments. In 2014, the district court denied Ayestas’s federal habeas
application as well as his ex parte motion for additional investigatory funding
pursuant to 18 U.S.C. § 3599(f). With respect to the Section 3599(f) motion,
the district court recited then-controlling precedent that Ayestas was required
to show a “substantial need” for investigative assistance, as well as the
statutory requirement that the assistance be “reasonably necessary” to the
representation. See Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014);
§ 3599(f).

                                       2
    Case: 15-70015    Document: 00515057941     Page: 3   Date Filed: 07/31/2019



                                 No. 15-70015
      The district court then denied multiple post-judgment motions, including
some based on a newly discovered “Capital Murder Summary memorandum,
prepared by the prosecution, stating that Ayestas’s lack of citizenship was an
‘aggravating circumstance[].’”   Ayestas, 817 F.3d at 894.      On appeal, we
affirmed the denial of Ayestas’s motions for investigatory funding, to stay
proceedings to allow exhaustion of new claims in state court, and to
supplement his habeas application with new evidence. Id. at 892. We also
denied Ayestas’s request for a certificate of appealability to appeal the denial
of his habeas application. Id.
      The Supreme Court granted certiorari on the denial of investigatory
funding under Section 3599(f), then vacated and remanded for further
proceedings. Ayestas, 138 S. Ct. 1080. The Court rejected that an applicant
must show a “substantial need” or present “a viable constitutional claim that
is not procedurally barred.” Id. at 1093 (citation omitted). Instead, funding
may be reasonably necessary when it “stands a credible chance of enabling a
habeas petitioner to overcome the obstacle of procedural default.” Id. at 1094.
The Court instructed that “the ‘reasonably necessary’ standard thus requires
courts to consider the potential merit of the claims that the applicant wants to
pursue, the likelihood that the services will generate useful and admissible
evidence, and the prospect that the applicant will be able to clear any
procedural hurdles standing in the way.” Id.
      Ayestas contends that investigatory funding is reasonably necessary to
develop claims that his trial counsel was ineffective for failing to present
mitigating evidence of his substance abuse and mental illness at sentencing.
See Wiggins v. Smith, 539 U.S. 510 (2003).         A prison psychologist first
diagnosed Ayestas as schizophrenic in 2003 when his state-habeas application
was still pending.

                                       3
      Case: 15-70015   Document: 00515057941     Page: 4   Date Filed: 07/31/2019



                                 No. 15-70015
                                 DISCUSSION
       We review the district court’s denial of a Section 3599(f) motion for an
abuse of discretion. Hill v. Johnson, 210 F.3d 481, 487 (5th Cir. 2000). “A
district court abuses its discretion if it bases its decision on an erroneous view
of the law or on a clearly erroneous assessment of the evidence.” Perez v.
Stephens, 745 F.3d 174, 177 (5th Cir. 2014) (citation omitted). When reviewing
for abuse of discretion, the “underlying conclusions of law are reviewed de novo
and conclusions of fact are reviewed for clear error.” Aguilar-Ayala v. Ruiz,
973 F.2d 411, 416 (5th Cir. 1992) (citation omitted).
       Since the Supreme Court’s Ayestas decision, we have remanded some
Section 3599(f) denials for reconsideration by the district court. E.g., Sorto v.
Davis, 716 F. App’x 366 (5th Cir. 2018).       Remand is not required “if the
judgment is sustainable for any reason.” Af-Cap, Inc. v. Republic of Congo, 462
F.3d 417, 425 (5th Cir. 2006). For that reason, other panels have affirmed pre-
Ayestas denials where “the reasons the district court gave for its ruling remain
sound.” Jones v. Davis, 927 F.3d 365, 374 (5th Cir. 2019) (citation omitted).

 I.    Section 3599(f) Motion for Investigatory Funding

       The district court denied the Section 3599(f) motion for these reasons:
Ayestas “fail[ed] to demonstrate that [1] trial counsel was deficient, [2] that
there [was] a reasonable probability that his claimed evidence of substance
abuse would have changed the outcome of either his trial or his state habeas
corpus proceeding, or [3] that his state habeas counsel was ineffective.”
       Whether the district court’s reliance on the first two reasons abused its
discretion under the standard described in the Supreme Court’s Ayestas
decision are close questions because of the district court’s emphasis on existing
as opposed to potential evidence. The district court’s third reason for denying

                                        4
    Case: 15-70015    Document: 00515057941         Page: 5   Date Filed: 07/31/2019



                             No. 15-70015
funding was that state-habeas counsel was not ineffective.           Ayestas must
establish that his state-habeas counsel was ineffective to overcome the
procedural default of claims based on failures to present mitigating evidence
of substance abuse and mental illness. See Trevino v. Thaler, 569 U.S. 413
(2013). If the district court’s assessment of effectiveness is valid, then the
district court did not abuse its discretion by denying funding regardless of any
potential error in the other stated reasons.
      We previously concluded that Ayestas’s state-habeas counsel was not
constitutionally ineffective.   Ayestas, 817 F.3d at 898.         Nonetheless, the
Supreme Court has informed us to consider “the prospect that the applicant
will be able to clear any procedural hurdles standing in the way.” Ayestas, 138
S. Ct. at 1094. This means assessing whether the investigation “stands a
credible chance of enabling a habeas petitioner to overcome the obstacle of
procedural default.” Id. If no credible chance exists, then the investigation is
not reasonably necessary regardless of the Wiggins claims’ viability or the
likelihood of uncovering admissible evidence. That is because “it would not be
reasonable — in fact, it would be quite unreasonable — to think that services
are necessary to the applicant’s representation if, realistically speaking, they
stand little hope of helping him win relief.” Id.

   A. State-Habeas Counsel’s Effectiveness

      The question then is whether state-habeas counsel’s decision not to bring
these specific claims fell outside of “prevailing professional norms” given any
signs that mental illness and substance abuse went uninvestigated by trial
counsel and in light of the post-conviction claims that were advanced instead.
See Strickland v. Washington, 466 U.S. 668 (1984).



                                        5
     Case: 15-70015       Document: 00515057941          Page: 6     Date Filed: 07/31/2019



                                   No. 15-70015
             i.   Prevailing Professional Norms

       Capital defense practices have changed significantly over the past 30
years. 1    The Supreme Court, though, has made clear that counsel’s
performance is to be evaluated based on “the professional norms prevailing
when the representation took place.” Bobby v. Van Hook, 558 U.S. 4, 7 (2009).
       Scrutiny of mitigation investigations did not take shape until well after
Ayestas’s state-habeas application was filed in 1998. At that time, the ABA
guidelines spoke only briefly to the duties for post-conviction counsel. ABA
GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH
PENALTY CASES 11.9.3, p. 126 (1989). 2 Ayestas’s current request for funding
closely tracks supplementary ABA guidelines, but their “probative value . . . is
diminished by the fact that they were adopted” a decade after the state-habeas
application was filed. Druery v. Thaler, 647 F.3d 535, 541 n.2 (5th Cir. 2011);
see ABA SUPPLEMENTARY GUIDELINES FOR THE MITIGATION FUNCTION OF
DEFENSE TEAMS IN DEATH PENALTY CASES (2008).




       1  See Russell Stetler & W. Bradley Wendel, The ABA Guidelines and the Norms of
Capital Defense Representation, 41 HOFSTRA L. REV. 635, 695 (2013) (“Counsel’s duty to
conduct thorough mitigation investigation in death penalty cases must be understood in
terms of the evolving standards of the specialized capital defense bar — a bar that has been
increasingly successful in avoiding death sentences.”).
        2 GUIDELINE 11.9.3 DUTIES OF POSTCONVICTION COUNSEL

        A. Postconviction counsel should be familiar with all state and federal postconviction
remedies available to the client.
        B. Postconviction counsel should interview the client, and previous counsel if possible,
about the case. Counsel should consider conducting a full investigation of the case, relating
to both the guilt/innocence and sentencing phases. Postconviction counsel should obtain and
review a complete record of all court proceedings relevant to the case. With the consent of the
client, postconviction counsel should obtain and review all prior counsel’s files.
        C. Postconviction counsel should seek to present to the appropriate court or courts all
arguably meritorious issues, including challenges to overly restrictive rules governing
postconviction proceedings.
                                               6
    Case: 15-70015      Document: 00515057941      Page: 7   Date Filed: 07/31/2019



                                No. 15-70015
      Ayestas’s state-habeas attorney in 1998 would not have found much in
the case law for claims based upon mitigating evidence of substance abuse and
mental illness. In 1998, the most relevant authority was likely Strickland
itself, which held that “[t]rial counsel could reasonably surmise from his
conversations with [his client] that character and psychological evidence would
be of little help.” Strickland, 466 U.S. at 699.
      No authority cited now by Ayestas that addresses mitigating evidence
even existed when his state-habeas application was filed in December 1998.
See Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374,
393 (2005); Porter v. McCollum, 558 U.S. 30, 39 (2009).
      “Starting with Williams v. Taylor in 2000, and then continuing with
Wiggins v. Smith in 2003, and Rompilla v. Beard in 2005, the Court launched
a series of decisions emphasizing the importance of thorough mitigation
investigation in capital defense cases.” Emily Hughes, Mitigating Death, 18
CORNELL J.L. & PUB. POL’Y 337, 352 (2009) (citations omitted). In fact, the
2000 decision in Williams was “the first time [the Supreme Court] overturned
a death sentence under the Strickland standard.” Stephen F. Smith, The
Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 353 (2008)
(citation omitted). Importantly, none of these cases established retroactive
constitutional rules.
      In 1998, then, there was little to indicate to state-habeas counsel that
the failure to develop substance abuse and mental illness evidence was an
egregious omission, particularly when compared to the failure to secure
testimony from his family. Ayestas’s counsel pursued that evidence. In fact,
just a year before the state-habeas application was filed, we explicitly
characterized an ineffective assistance claim “for failing to present mitigating
lay testimony from family or friends” as a “stronger argument” than a claim

                                        7
     Case: 15-70015     Document: 00515057941      Page: 8   Date Filed: 07/31/2019



                              No. 15-70015
premised on “failing to locate an expert who would conclude that [the
defendant] was retarded or suffered from mental illness.” Williams v. Cain,
125 F.3d 269, 278 (5th Cir. 1997). The “double-edged” nature of substance
abuse and mental illness evidence and the state of the law before 2000 would
have likely made those claims seem unlikely to succeed. See, e.g., Boyle v.
Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996); Jonathan P. Tomes, Damned If
You Do, Damned If You Don’t: The Use of Mitigation Experts in Death Penalty
Litigation, 24 AM. J. CRIM. L. 359, 360-61 (1997).
      In one representative case, the petitioner had argued his counsel “failed
to present significant mitigating evidence that was either known to his counsel
or should have been known to his counsel” including “evidence of his mental
illness,   violent    family   background,     economic   deprivation,     voluntary
intoxication, drug and alcohol addictions, and testimony as to his many
positive traits.” Boyle, 93 F.3d at 187. We held he “failed to establish that his
counsel was deficient at trial” given trial counsel’s testimony in state-habeas
proceedings that this “would have been aggravating,” and because “all the
evidence that [the applicant] maintain[ed] should have been presented at the
punishment phase of his capital murder trial had a double-edged quality.” Id.
at 187-88.
      We acknowledge that evaluating performance against prevailing
professional norms is complicated when standard practices raise constitutional
concerns. As one Fifth Circuit judge observed, “[i]n Texas, the most active state
in the carrying out of death sentences, we have often failed to live up to our
ideal of justice. The failure of lawyers, judges, prosecutors, and defense counsel
to   perform    as    professionals   is   now   well-documented.”       Patrick   E.
Higginbotham, A Reflection on Furman, 34 AM. J. CRIM. L. 199, 204 (2007).


                                           8
    Case: 15-70015    Document: 00515057941     Page: 9    Date Filed: 07/31/2019



                                No. 15-70015
      In this instance, though, the record shows that state-habeas counsel
provided aggressive, competent, and professional representation.

          ii.   Analysis

      Ayestas’s state-habeas counsel, J. Gary Hart, has never been publicly
disciplined for any reason. In December 1998, eleven months after being
appointed, Ayestas’s state-habeas counsel filed a 70-page application for relief
raising several constitutional claims:
            Claims 1–10. That ten distinct actions or omissions by
      Ayestas’s trial counsel, including the failure to present mitigating
      evidence, each denied Ayestas effective assistance in violation of
      the Sixth Amendment;
             Claims 11–13. That the failure to inform Ayestas of his right,
      under an international treaty, to consult with the Honduran
      Consul prevented him from presenting mitigating evidence in
      violation the Eighth Amendment, the Fourteenth Amendment,
      and the Sixth Amendment’s compulsory process clause;
             Claims 14–15. That the state knowingly presented false
      testimony from a witness at the guilt phase of the trial in violation
      of the Fourteenth Amendment, and at the punishment phase in
      violation of the Eighth Amendment;
             Claim 16. That the state suppressed impeachment evidence
      in violation of the Fourteenth Amendment due process clause.
      Hart did not merely repeat claims raised in the direct appeal. In fact,
there is virtually no overlap between them. Hart’s independent efforts are also
represented in the extra-record evidence that he developed and attached to the
initial state-habeas application, which included affidavits from a forensic
pathologist, Ayestas himself, three of Ayestas’s family members, and one of the
jurors that sentenced Ayestas to death, as well as documents from the
Honduran government and a letter from an independent fingerprint examiner.



                                         9
    Case: 15-70015       Document: 00515057941         Page: 10     Date Filed: 07/31/2019



                               No. 15-70015
        In summary, state-habeas counsel raised ten ineffective assistance of
trial counsel (“IATC”) claims, including multiple claims premised on a failure
to present certain mitigating evidence.            Specifically, state-habeas counsel
argued that Ayestas was prejudiced by the failure to present mitigating
testimony from family members that he had no criminal record in Honduras
and that he had lived a normal life. In other words, this claim was the opposite
of what would likely be shown by evidence of mental illness and substance
abuse, which as mentioned already had little support in the case law at the
time.
        The omission of these claims was not because state-habeas counsel was
unaware of the mental illness and substance abuse. State-habeas counsel had
access to the psychological and disciplinary records subpoenaed by trial
counsel’s investigator.       That trial investigator provided Ayestas with a
questionnaire, and state-habeas counsel had Ayestas’s responses where he
identified a history of head traumas and “admitted to drinking alcohol since he
was 16 years old and to doing cocaine at least once a week, which became more
frequent as he slipped into the grips of addiction.”
        Despite the relative novelty of mitigation specialists, 3 state-habeas
counsel hired one shortly after being appointed. That specialist advised:
        It is clear the defendant had a history of substance abuse. What
        we know from reviewing the trial evidence is that Ayestas probably
        abused heroine and/or cocaine while in California: that he had


        3Judge Berrigan, who “as a lawyer, handled the penalty phase of a number of capital
cases in the 1980s and early 1990s on a pro bono basis” has written that she “had never heard
of a mitigation specialist.” Helen G. Berrigan, The Indispensable Role of the Mitigation
Specialist in A Capital Case: A View from the Federal Bench, 36 HOFSTRA L. REV. 819, 819
n.a1 (2008). “She did her own investigation and . . . [f]or witnesses, she generally had only
family members and a psychologist.” Id. See also Murphy v. Davis, 737 F. App’x 693, 705
(5th Cir. 2018) (“Before Wiggins, counsel said lawyers still had to conduct a mitigation
investigation, but it was not incumbent upon lawyers to retain a mitigation expert.”).
                                             10
    Case: 15-70015       Document: 00515057941        Page: 11     Date Filed: 07/31/2019



                                 No. 15-70015
       what appeared to be a drug-related run-in with alleged victim
       Martinez in Houston days after this murder, and that he had
       gotten so drunk he “passed out” on the day of his arrest. Would
       there have been a defense to his conduct due to some sort of
       addiction? We should look at substance abuse as mitigation.
Hart commented in his handwritten notes: “Ayestas’s drinking and/or drug
consumption as a possible mitigating fact. How could this have been developed
at trial?”
       Prior to filing the initial state-habeas application, Hart requested
investigatory funding based on his mitigation specialist’s recommendations
that he estimated would cost $15,000. 4 However, recognizing an existing
“policy to authorize no more than $2,500.00 for investigative expenses to begin
with,” Hart requested only that amount. The state court granted only $1,500.
State-habeas counsel managed to obtain only an additional $1,000 in
investigatory funding before he filed the initial application, after which further
requests were denied. See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 3(b)
(requiring prepayment requests to be filed no later than 30 days before filing
of initial application).
       “Although courts may not indulge ‘post hoc rationalization’ for counsel’s
decisionmaking that contradicts the available evidence of counsel’s actions,
neither may they insist counsel confirm every aspect of the strategic basis for
his or her actions.” Harrington v. Richter, 562 U.S. 86, 109 (2011) (citation
omitted). We are constrained to interpret the omission of a mitigation claim
based on substance abuse as a strategic decision given the evidence in the
record that state-habeas counsel contemplated the possibility but decided



       4 The Texas Court of Criminal Appeals capped fees for habeas counsel at $15,000 until
2000, when it was raised to $25,000. See Shamburger v. Cockrell, 34 F. App’x 962, at *3 n.9
(5th Cir. 2002).
                                            11
   Case: 15-70015        Document: 00515057941   Page: 12   Date Filed: 07/31/2019



                                No. 15-70015
against it. See Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir. 2003) (“As for
the alcohol and drug abuse, this Court has repeatedly denied claims of
ineffective assistance of counsel for failure to present ‘double edged’ evidence
where counsel has made an informed decision not to present it.”). We therefore
“conclude that counsel’s decisions” about the substance abuse “were objectively
reasonable based on the double-edged nature of the evidence involved.”
Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999).
      With respect to Ayestas’s mental illness, neither trial counsel nor state-
habeas counsel could have been expected to explore it given that there was no
evidence he was schizophrenic until 2000, two years after his state-habeas
application was filed.
      State-habeas counsel had access to prison medical records.             They
document that Ayestas was examined on September 22, 2000, at which time
he complained of delusions that inmates could read his mind. The handwritten
notes also indicate that Ayesteas “report[ed] no psy problems until 2 months
ago.” In other words, there is evidence that he did not begin exhibiting any
symptoms of schizophrenia until July 2000.         That is consistent with the
absence of any evidence of Ayestas’s mental illness prior to that point and with
the multiple indicators of it afterwards.
      In October 2000, Hart accompanied the Honduran Consul General and
the Honduran Ambassador to the United States on a visit to Ayestas in prison.
After meeting with Ayestas, Ambassador Hugo Pino told Hart he believed that
Ayestas was delusional. In May 2003, in the wake of the Supreme Court’s
decision in Atkins v. Virginia, 536 U.S. 304 (2002), Hart arranged for a
psychologist to evaluate Ayestas’s intellectual status.        The psychologist
concluded that there was no evidence of mental retardation but did express
concerns about his mental state and delusional thinking.

                                        12
   Case: 15-70015    Document: 00515057941     Page: 13   Date Filed: 07/31/2019



                               No. 15-70015
      While this evaluation concluded there was not a viable Atkins claim,
state-habeas counsel nonetheless leveraged it to support the IATC claim
premised on the failure to present evidence Ayestas was only guilty of lesser
included felony murder. State-habeas counsel used the psychologist’s finding
that Ayestas was not intellectually disabled to support his argument that trial
counsel should have called Ayestas to testify. State-habeas counsel filed the
psychologist’s letter in the habeas proceedings but redacted the discussion of
Ayestas’s delusional thinking. Delusional thinking, of course, was arguably
inconsistent with state-habeas counsel’s attempt to portray Ayestas as a viable
witness who should have been called at trial. Ayestas was formally diagnosed
with schizophrenia in October 2003.
      State-habeas counsel cannot have been ineffective for failing to
investigate mental illness because the record establishes that there “was
nothing to factually put counsel on notice of any reasonable likelihood that any
such condition existed” at trial or when the state-habeas application was filed.
West v. Johnson, 92 F.3d 1385, 1409 n.46 (5th Cir. 1996). This is not a Wiggins
fact-pattern. Counsel’s failure to present evidence of mental illness “did not
result from pure inattention, and this is not a case like Porter, where counsel
wholly ignored multiple avenues of investigation,” nor is it like Rompilla where
there was “a readily available file that the prosecution tipped-off to defense
counsel.” Charles v. Stephens, 736 F.3d 380, 391 (5th Cir. 2013). Nothing
counsel “uncovered prior to trial had led them to any family history of mental
illness.” Smith v. Davis, 927 F.3d 313, 337 (5th Cir. 2019).
      At the same time, state-habeas counsel’s awareness and active redaction
of this “double-edged” evidence after it emerged further constrains us to
interpret the omission of a claim premised on the failure to present evidence of
mental illness as a strategic decision because “not to present evidence of [his]

                                      13
   Case: 15-70015      Document: 00515057941   Page: 14   Date Filed: 07/31/2019



                                 No. 15-70015
volatile mental state, especially given counsel’s decision to emphasize [his]
non-violent history, was clearly reasonable.” Nobles v. Johnson, 127 F.3d 409,
422 (5th Cir. 1997).
      To repeat, when Hart filed the initial habeas application none of these
major mitigation decisions existed. Even thereafter, Texas’s limitations on
subsequent applications would have prevented Hart from adding additional
mitigation claims premised on mitigating evidence of substance abuse and
mental illness. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5. The earliest cite
to Wiggins by a Texas court considering a habeas application apparently was
in 2005, and the court rejected the claim as procedurally barred:
             The decisions of the Supreme Court of the United States in
      Wiggins v. Smith, 123 S. Ct. 2527 (2003), and Rompilla v. Beard,
      125 S. Ct. 2456 (2005), were subsequent to and unavailable at the
      time of the initial application in this cause. However, neither
      decision creates a new legal basis for a review of the factual
      allegations which were presented and reviewed on applicant’s
      initial writ application.
Ex parte Ramirez, No. WR-52,775-02, 2005 WL 2659443, at *1 (Tex. Crim. App.
Oct. 18, 2005) (unpublished).
      Deciding whether to respond to a new trend and pivot to a Wiggins-
centric strategy or to stay the course was surely its own strategic decision.
Avoiding claims likely to be barred as successive was more than reasonable.
“Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463
U.S. 745, 751-52 (1983).
      While Hart failed to anticipate the arrival of Wiggins claims, the record
does demonstrate his own innovative efforts. State-habeas counsel argued that
the failure to inform Ayestas of his right under the Vienna Convention on

                                      14
   Case: 15-70015     Document: 00515057941      Page: 15   Date Filed: 07/31/2019



                               No. 15-70015
Consular Relations (“VCCR”) to consult with the Honduran Consul prevented
him from presenting mitigating evidence in violation of the Eighth,
Fourteenth, and Sixth Amendments. Texas rightly describes these as “cutting
edge” claims that would not be rejected by the Supreme Court until 2008. See
Medellin v. Texas, 552 U.S. 491 (2008).
      A 1998 issue of the journal published by the National Association of
Criminal Defense Lawyers makes the sophistication of this effort by state-
habeas counsel obvious:
             The use of state post-conviction proceedings for VCCR
      violations is even more in its infancy than the use of federal habeas
      proceedings since, until recently, the treaty violations were not
      discovered until the cases had progressed into federal court.
      Although unsuccessful because the Ohio court found its state
      habeas proceedings limited to “constitutional” issues, which
      excluded a treaty issue, State v. Loza represents the first reported
      case where the VCCR issue was raised in state habeas. Despite
      the scarcity of reported cases, a state post-conviction proceeding is
      the most promising forum for litigating a violation of the VCCR
      post-trial, since in that context it is much less likely that
      procedural barriers will foreclose efforts to raise the treaty
      violation.
            In addition, state habeas proceedings provide an opportunity
      to make a record on the effect of the treaty violation. Lawyers who
      represent defendants in state habeas proceedings should develop
      evidence through declarations, documents, and live testimony that
      establishes what actions the consulate would have taken and what
      prejudice the defendant suffered as a result of the failure to notify.
John Cary Sims & Linda E. Carter, Representing Foreign Nationals: Emerging
Importance of the Vienna Convention on Consular Relations As A Defense Tool,
THE CHAMPION, Sept./Oct. 1998, at 28, 56.
      Ayestas wants us to find his state-habeas counsel was ineffective, or
potentially ineffective, for not undertaking an investigation that Ayestas
himself described as “unusual” because it would “touch[] two central American
                                     15
    Case: 15-70015     Document: 00515057941     Page: 16   Date Filed: 07/31/2019



                             No. 15-70015
countries and three States,” require interviewing dozens of witnesses,
“involve[] extraordinarily complex investigatory tasks to piece together the
manifestations of [petitioner’s] mental illness in the years leading up to the
commission of this crime,” include attempts at “identifying percipient
witnesses, probing their memories for clues whether [Ayestas] manifested
signs of mental illness and the nature of his ability to function,” and
“encompass complex cultural issues that must be addressed and accounted
for.”
        This would go well beyond the prevailing professional norms for post-
conviction capital representations in 1998, and state-habeas counsel was not
ineffective for not conducting such an investigation given the limited time and
resources available. “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence.” Wiggins, 539 U.S. at 533.
        It is not disputed that Ayestas had a history of substance abuse nor that
Ayestas was diagnosed with a mental illness after conviction. Ayestas, though,
has not explained how state-habeas counsel was ineffective, or even how his
proposed investigation might uncover evidence that differs not only in degree
but in kind from the facts known to state-habeas counsel. Investigations are
not reasonably necessary “when the sought-after assistance would only
supplement prior evidence.” Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005).
        Given the evidence that state-habeas counsel was not deficient, joined
with the unlikelihood of locating new information suggesting otherwise,
funding for investigatory services cannot be reasonably necessary.
        AFFIRMED.




                                        16
