                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                                                           October 28, 2003
                                                  In the
                                                                                       Charles R. Fulbruge III
                         United States Court of Appeals                                        Clerk
                                       for the Fifth Circuit
                                            _______________

                                              m 03-50485
                                            _______________




                                           ANDREW FLORES,

                                                               Petitioner-Appellant,

                                                 VERSUS

                                             DOUG DRETKE,
                        DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                              CORRECTIONAL INSTITUTIONS DIVISION,

                                                               Respondent-Appellee



                                     _________________________

                              Appeal from the United States District Court
                                   for the Western District of Texas
                                          m SA-98-CV-1169
                                    _________________________



Before HIGGINBOTHAM, SMITH, and                           Andrew Flores applies for a certificate of
  CLEMENT, Circuit Judges.                             appealability (COA) of the denial of his

JERRY E. SMITH, Circuit Judge:*
                                                           *
                                                            (...continued)
                                                       determined that this opinion should not be pub-
  *
      Pursuant to 5TH CIR. R. 47.5, the court has      lished and is not precedent except under the limited
                                     (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
petition for writ of habeas corpus. 28 U.S.C.            solved by the state courts. See Moore v. John-
§ 2253(c)(1)(A); Miller-El v. Cockrell, 537              son, 225 F.3d 495, 501(5th Cir. 2000). The
U.S. 322, ___, 123 S. Ct. 1029, 1039 (2003).             phrase “clearly established federal law” refers
We deny the application.                                 to the “holdings, as opposed to the dicta of
                        I.                               [the Supreme Court’s] decisions as of the time
   In determining whether to issue a COA, we             of the relevant state-court decision.” Williams
conduct an overview of the petitioner’s claims           v. Taylor, 529 U.S. 362, 412 (2000). Under
and make a general assessment of their merits.           the related § 2254(e)(1), a federal habeas court
The standard of review is whether a petitioner           will presume correct the factual findings of the
“has made a substantial showing of the denial            state court unless the petitioner “rebut[s] the
of a constitutional right.” 28 U.S.C. § 2253(c)-         presumption of correctness by clear and
(1)(A); Miller-El, 537 U.S. at ___, 123 S. Ct.           convincing evidence.” See also Miller-El, 537
at 1039. This threshold showing does not re-             U.S. at ___, 123 S. Ct. at 1042.
quire the petitioner to demonstrate that his ap-
peal will succeed. Id. Where a district court                                   II.
rejects a claim on the merits, the petitioner               Flores asserts that he was not competent to
“‘must demonstrate that reasonable jurists               make his plea and that it was not entered into
would find the district court’s assessment of            knowingly, intelligently, and voluntarily. With
the constitutional claims debatable or wrong.’”          respect to his competence, Flores asserts that
 Id. at 1040 (quoting Slack v. McDaniel, 529             he suffers from psychological and neurological
U.S. 473, 484 (2000)).                                   impairments that prevented him from
                                                         completely understanding the proceedings
    The determination of whether a COA                   against him. Therefore, he argues, there is
should issue must be made “through the lens              room for reasonable jurists to differ on wheth-
of the deferential scheme laid out in 28 U.S.C.          er his impairments prevented him from being
§ 2254(d).” Barrientes v. Johnson, 221 F.3d              able to make the rational choices necessary to
741, 772 (5th Cir. 2000). Under that scheme,             enter a guilty plea.
deference to a state court decision is required
for any claim that was adjudicated on the mer-               The test for deciding competence to enter
its in state court, unless the decision was either       a guilty plea is “whether [defendant] has suf-
“contrary to, or involved an unreasonable                ficient present ability to consult with his lawyer
application of, clearly established Federal law,         with a reasonable degree of rational
as determined by the Supreme Court of the                understandingSSand whether he has a rational
United States,” Yarborough v. Gentry, No.                as well as factual understanding of the
02-1597, 2003 U.S. LEXIS 7701 (U.S. Oct.                 proceedings against him.” Dusky v. United
20, 2003) (per curiam) (quoting 28 U.S.C. §              States, 362 U.S. 402, 402 (1960) (per curiam);
2254(d)(1)), or the decision “was based on an            see also Godinez v. Moran, 509 U.S. 389,
unreasonable determination of the facts in light         398-99 (1993). Because a state court’s
of the evidence presented in the state court             competency finding is presumed correct, a
proceeding,” 28 U.S.C. § 2254(d)(2).                     petitioner bears a heavy burden in contesting
                                                         his competency during federal collateral
   Section 2254(d)(1) speaks to questions of             review. DeVille v. Whitley, 21 F.3d 654, 656
law and mixed questions of fact and law re-              (5th Cir. 1994).


                                                     2
    In arguing that he was incompetent to enter        competent to enter a guilty plea.
a guilty plea, Flores relies on (1) a history of
childhood sexual and physical abuse, long-term             Although Flores also asserted that his guilty
drug abuse, and resulting emotional and                plea was not made knowingly, intelligently,
organic brain impairments; (2) the testimony of        and voluntarily,1 he was admonished at length
psychiatrist      Raymond Potterf at the               by the trial court regarding the nature and con-
evidentiary hearing held during the state              sequences of a guilty plea. As the federal dis-
habeas proceeding, which Flores contends               trict court observed, Flores represented, on the
established that, because of his mental                record in open court, that he was pleading
impairments, he tends to respond to authority          guilty because he was guilty and for no other
figures in “almost a frozen status . . . very          reason, that no threats or promises induced his
fearful”; (3) Potterf’s testimony that Flores          plea, that he understood that he would receive
would “probably go along with” a directive             either a life sentence without parole for thirty-
from an attorney; and (4) Potterf’s suggestion         five years or the death penalty, that he was
that if Flores were directed by an authority           waiving the right to a jury trial, that he was
figure, he would plead guilty to “take the             pleading of his own free will, and that he un-
choice that would get him out of the situation         derstood that his plea was an admission to all
as quickly as possible.” Potterf, however, dis-        the elements of his offense.
avowed any personal knowledge of, and did
not express any opinion as to whether, Flores             Flores argues that despite all this, his
actually experienced his “frozen state” at a           aforementioned mental and emotional
time near entering his guilty plea, or that he         impairments forced him to respond to the
felt pressured to plead guilty by his attorney.        authority of the court in a fearful and “frozen
                                                       status.”    Again, he relies on Potterf’s
   Ultimately, Potterf expressed the opinion           testimony. To the contrary, however, the trial
that Flores was competent to enter his guilty          court’s observation of Flores’s demeanor
plea. Moreover, Flores has presented no evi-           during the guilty plea hearing and throughout
dence that he suffered from a “frozen status”          the trial gave no indication that Flores
at or near the time he entered his guilty plea.        experienced such an episode. He likewise has
During trial, the state judge observed that            produced no evidence that he experienced the
“[t]hroughout the proceedings, from pre-trial          “frozen status” about which Potterf
through his punishment phase, [Flores]                 speculated.
displayed through his testimony, his
mannerisms, his disposition, and his behavior,            We see no reason to differ with the district
that he was competent as defined.”                     court’s conclusion that Flores’ plea was
                                                       knowing, intelligent, and voluntary.
   Moreover, the federal district court noted          Accordingly, the state court made no
that there is no evidence that Flores’s attorney       “unreasonable interpretation of the facts in
ever asked or pressured him to plead guilty.           light of evidence presented” in so concluding.
Accordingly, the state court made no
“unreasonable interpretation of the facts in
light of the evidence presented,” Godinez, 509            1
                                                           See Godinez, 509 U.S. at 400; Boykin v.
U.S. at 400, in concluding that Flores was             Alabama, 395 U.S. 238, 244 (1969); Taylor v.
                                                       Whitney, 933 F.2d 325, 329 (5th Cir. 1991).

                                                   3
See Godinez, 509 U.S. at 400.                             standard for determining when a prospective
                                                          juror may be excluded for cause because of his
                       III.                               views on capital punishment is to decide
   Flores contends that his trial attorney was            whether “the juror’s views would ‘prevent or
ineffective in two respects, depriving him of             substantially impair the performance of his du-
his Sixth Amendment right to counsel. First,              ties as a juror in acco rdance with his instruc-
he argues that counsel was inadequate by fail-            tions and his oath.’” Wainwright v. Witt, 469
ing to object to the trial court’s decision to            U.S. 412, 424 (1985) (quoting Adams v. Tex-
grant the prosecutor’s challenge for cause of             as, 448 U.S. 12, 45 (1980)).
a venireman, which failure waived the issue for
appellate review. Second, Flores asserts that                 Roundtree informed the court and the par-
his attorney failed to present mitigating details         ties that she did not believe in capital punish-
about his background and history, which he                ment and did not wish to serve on a jury where
suggests would have swayed jurors to spare                the death penalty was an option. She
his life.                                                 repeatedly insisted that she would not answer
                                                          the special issues based on the evidence if
    To prevail on a claim of ineffective assist-          those answers resulted in the death penalty and
ance, a habeas petitioner must satisfy the two-           would not obey the court’s instructions
pronged test in Strickland v. Washington, 466             regarding the law. These circumstances
U.S. 668, 687 (1984). He must show (1) that               constituted a “substantial impairment” to her
counsel rendered deficient performance and                ability to answer the punishment issues, and
(2) that counsel’s deficiency resulted in actual          thus she was properly subject to a challenge
prejudice. For a federal court to grant habeas            for cause. Flores urges that Roundtree never
relief for ineffective assistance, the “state court       said she would “consciously distort” her
must have unreaso nably applied the [Wash-                answer during the punishment phase, but such
ington] standard.” Santellan v. Cockrell, 271             an express articulation of a substantial
F.3d 190, 198 (5th Cir. 2001). A petitioner               impairment of her ability to answer the
must show that “in light of all circumstances,”           punishment issues is unnecessarySSshe was
his representation “fell below an objective               properly subject to a challenge for cause.
standard of reasonableness” or “prevailing pro-
fessional norms.” Washington, 466 U.S. at                    Flores’s lawyer reasonably could have con-
688-90; see Gentry, 2003 U.S. LEXIS 7701,                 cluded the same and realized that his objection
at *6-*7. Judicial scrutiny of the counsel’s              would have been frivolous. A “[f]ailure to
performance must be “highly deferential” and              make a frivolous objection does not cause
cognizant of the “distorting effect of                    counsel’s performance to fall below an
hindsight.” Washington, 466 U.S. at 689-90.               objective level of reasonableness.” Green v.
                                                          Johnson, 160 F.3d 1029, 1037 (5th Cir.
                      A.                                  1998))
   Flores’ first argument stems from the failure
of his attorney to object to the prosecution’s                                   B.
challenge to prospective juror Roundtree, who                Flores claims deficient counsel with respect
said that she strongly opposed the death                  to his attorney’s failure to investigate and in-
penalty in all circumstances. The proper                  troduce, as mitigation evidence, elements of


                                                      4
his background and mental disposition during            es’s troubles. It accordingly was not deficient
the sentencing proceedings. As the district             performance to decline to introduce the
court observed, however, Flores presented no            subject evidence in mitigation.
evidence to support the claim that his trial at-
torney’s investigation was unreasonable.                   The application for COA is DENIED.

   The important question is whether counsel
was inadequate in failing to introduce the sug-
gested elements at trial. Flores argues that his
attorney should have presented “evidence of
the neurologic brain impairment of the
Applicant, the history of physical and sexual
abuse of the Applicant, the lack of a father
figure for the Applicant during his formative
years, the Applicant’s severe problems in
identity crisis, the drug history of the
Applicant and his siblings, and the intoxication
of the Applicant during the time of the
offense.” Flores also produced a juror from
his case, Ms. Zuazua, who says that had she
heard the details about Flores’s traumatic
childhood, she would not have voted for the
death penalty.

   We must, however, judge Flores’ counsel’s
decisions relative to the circumstances at the
time. Washington, 466 U.S. at 688-90. As
the district court observed, Flores’s suggested
background informationSSof a history of crisis
and violenceSScuts both ways. His lack of
self-control and his history of violence and
drug abuse, especially, demonstrate violent
and unstable propensities. At trial, Flores’s at-
torney took the approach of highlighting his
good side, bringing witnesses to testify to his
good character and arguing that the murder
was an aberration. Introducing the evidence
that Flores now suggests would have
undermined that strategy.

   In short, the district court reasonably con-
cluded that Flores’s attorney had valid strate-
gic reasons for shifting focus away from Flor-


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