     Case: 17-70025      Document: 00514543361         Page: 1    Date Filed: 07/06/2018




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

                                                                                 FILED
                                      No. 17-70025                            July 6, 2018
                                                                            Lyle W. Cayce
TEDDRICK BATISTE,                                                                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 Southern District of Texas
                             USDC No. 4:15-CV-1258


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Teddrick Batiste was convicted of capital murder in Texas state court
and sentenced to death. He sought post-conviction relief, alleging that his
state trial counsel rendered ineffective assistance during sentencing. The state
habeas court rejected the claim on the merits. Batiste subsequently filed for
habeas relief in federal court. The district court, after extensive analysis,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-70025
denied relief and declined to issue a certificate of appealability (COA). 1 Batiste
now applies for a COA from this court. For the reasons given below, we deny
his application.
                                              I
      At trial, the State established, based in part on Batiste’s confession, that
he killed Horace Holliday while trying to steal tire rims from Mr. Holliday’s
Cadillac. The district court observed that the killing “was particularly brutal
and senseless. Batiste repeatedly shot into the victim’s car on the freeway to
steal the rims from his car. Once they both stopped, Batiste could have stolen
the victim’s car and left the injured man lying on his stomach bleeding and
pleading for his life. Instead, Batiste repeatedly shot him.” 2 Further pertinent
to this federal habeas matter, the district court quoted the Texas Court of
Criminal Appeals’ summary of the punishment phase of Batiste’s trial:
      During the punishment phase, the State offered evidence that, on
      March 23, 2009 (a little more than three weeks before killing
      Horace Holiday), appellant robbed Walter Jones, his wife, Kari,
      and David McInnis, at the Phat Kat Tats tattoo shop. A little
      before 11:00 p.m., appellant parked his Buick in front of the
      Shipley’s Donuts shop in the strip center where the tattoo shop
      was located. Then he and two cohorts marched into the shop,
      wearing blue bandanas over their faces and carrying semi-
      automatic pistols. Appellant screamed, “This is a fucking robbery!”
      Each of the robbers grabbed one of the three adults, and each put
      a gun to that person’s head. Walter Jones, the owner of Phat Kat
      Tats, noticed that these robbers were well organized and likely had
      done this before. Kari, very afraid that their five-year-old son
      might come into the shop from the next room, pleaded with the
      robbers not to shoot him if he did so. One of the robbers started
      yelling at her, “Shut up, bitch, I’ll kill you, I’ll kill you. Shut up.”
      The robbers made them empty out their pockets. Disappointed
      with the result, the robbers then scooped up two laptops, several
      cell phones, a digital camera, and three tattoo machines. They ran

      1   Batiste v. Davis, 2017 WL 4155461 (S.D.Tex. Sept. 19, 2017).
      2   Id. at *12.
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 out of the shop and fled in appellant’s Buick. The surveillance
 camera at the nearby Shipley’s Donuts caught appellant, his
 cohorts, and the Buick, on tape.

 Two weeks later—shortly after midnight on April 8, 2009—
 appellant drove his Buick through the strip-mall center where the
 Black Widow tattoo parlor was located. He was “casing” it for a
 robbery. He backed his Buick into a parking slot in front of the
 shop, and then he and two other men walked into the tattoo parlor.
 Steve Robbins, the shop’s owner, was tattooing Joshua’s arm,
 while two of Joshua’s friends—Anthony and Christie—were
 napping on the couch. Two of the robbers held Anthony and
 Christie at gunpoint, while the third robber went toward the back
 where Steve was tattooing Joshua. Appellant and the other two
 robbers were yelling and “cussing” at everyone, demanding money
 and wallets. When Steve told the robbers that they had gotten all
 the money and they should leave because the store had
 surveillance cameras, appellant turned back to him and said,
 “What, motherfucker?” and began shooting Steve. Appellant and
 another robber shot a total of sixteen bullets before they finally
 fled in appellant’s Buick. Steve died.

 The State also introduced evidence of appellant’s long criminal
 history, his gang-related activities, and his various acts of violence
 and intimidation while in jail.

 Horace Holiday’s mother, Lisa Holiday Harmon, gave the jurors a
 brief glimpse into her son’s life and how he had saved up the money
 to buy the special rims for his Cadillac just two weeks before his
 death. She told the jury that, after the murder, Horace’s
 grandmother moved into Horace’s old room to be closer to his
 memory. Horace’s grandmother testified that, after Horace’s
 death, the “whole family fell apart.”

 During his punishment case, appellant called a dean from the
 University of Houston to testify to the TDCJ inmate classification
 system and life in prison. He also called a high-school track and
 football coach who said that appellant was a gifted athlete in
 middle school, but that he “disappeared” after he got into trouble
 for car thefts. Appellant’s former boss testified that appellant
 worked at Forge USA for over six months as a helper on the forging

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                            No. 17-70025
 crew. He never had any problems with appellant. Appellant’s
 girlfriend, Stephanie Soliz, testified that she and appellant lived
 together with her two children, one of whom was fathered by
 appellant. Appellant was “the best” father. Stephanie admitted
 that they smoked a lot of marijuana at home and that appellant
 had a second job as a “fence” for stolen property. She was “okay”
 with appellant selling stolen property, as long as he wasn’t doing
 the stealing himself.

 Appellant’s younger brother, Kevin Noel, testified that appellant
 was “a very caring and loving brother.” He did not try to get Kevin
 to commit crimes or join the Crips gang, but Kevin did join the Line
 Five Piru Bloods gang and has the gang’s tattoos. Kevin would pick
 appellant up from work and bring him back to his apartment
 where Kevin smoked dope with appellant and Stephanie.
 Appellant would write him letters from jail suggesting various new
 gang tattoos and bragging about having sex with a nurse in the
 infirmary. Appellant also wrote a letter from the jail to a friend
 telling him that he had broken his hand fighting with “a white guy
 from the military.” When that man had interfered with appellant’s
 phone call, appellant broke his jaw.

 Darlene Beard testified that appellant was her “favorite
 grandson.” She took care of him until he was nine years old. After
 that, she saw him every Thanksgiving, and sometimes on her
 birthday or Mother’s Day. She never saw appellant do anything
 bad. “I can only tell you about the good things that I know
 concerning my grandchild.” Mrs. Beard said that appellant has a
 “huge” family and does not have any conflict with any member of
 that family. Appellant’s mother testified that she was barely
 sixteen when appellant was born, so her mother took care of him
 while she finished high school. He was a healthy, happy, church-
 going child without any mental-health or learning problems until
 he started getting into trouble in middle school. She knew that
 appellant was sent to TYC for stealing cars, but he never told her
 about his other crimes, being in a gang, or having gang tattoos.

 Appellant testified that he had a happy childhood, but when he
 was in middle school, he began selling Ritalin because he wanted
 to make money. After he was caught, he was sent to an alternative
 school for the rest of eighth grade and half of ninth grade.

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                                      No. 17-70025
      Appellant said that, after TYC, he committed crimes “just like to
      keep money in my pocket, keep everything I needed.” Appellant
      stated that he spent some of his money on marijuana for Stephanie
      and himself, but he didn’t commit crimes to get drug money. He
      said that he really loves his two boys, Kash and Alex, and would
      guide them and tell them “what’s right, what’s wrong.”

      Appellant testified that he could be a positive influence on people
      in prison, and he would distance himself from the Crips members
      “and just pick different goals.” Appellant stated that he had
      followed the jail rules “[t]o the best of my ability.... Everytime, it’s
      always mutual combat. It’s never been where I just hit somebody.
      I hit them back.” But appellant did admit that, when faced with
      the choice to show empathy and help Horace Holiday, who was
      bleeding to death on the concrete, appellant made the choice to
      shoot him several more times and steal his car.

      When appellant was in jail, Stephanie tried to move on with a new
      boyfriend, Aaron. Appellant wrote rap lyrics about shooting him:
      “But Aaron ain’t crazy, man. That nigga respect my game. He’s a
      target up in my range. Extended clip to his brain.” Appellant
      admitted that his jailhouse rap lyrics could be seen as glorifying
      capital murder (“I popped and he dropped”), the gangster lifestyle,
      and violence in general. Appellant agreed that he recruited the
      gang members for the Phat Kat Tats robbery and told them what
      to do. He admitted that he was the leader in the Black Widow
      capital murder as well. And he said that those were not his first
      robberies. 3

      After considering this evidence, the jury sentenced Batiste to death.
      As noted, the Texas Court of Criminal Appeals affirmed Batiste’s
conviction and sentence. While the direct state court appeal was pending,
Batiste filed a state habeas application, which included an ineffective-
assistance-of-trial-counsel (IATC) claim asserting that Batiste’s trial counsel
did not adequately investigate and develop mitigating evidence relating to his
hospitalization for bacterial meningitis when he was less than one year old.


      3   Batiste v. State, No. AP-76600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013).
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                                       No. 17-70025
The state habeas court considered the claim and recommended that relief be
denied. The Texas Court of Criminal Appeals agreed and denied relief without
separate analysis.
       Batiste subsequently filed a federal habeas petition. The Director of the
Criminal Institutions Divisions of the Texas Department of Criminal Justice
(Director) moved for summary judgment and the district court granted the
motion, and also denied Batiste a COA. Batiste has applied for a COA from
this court.

                                              II
       For a state prisoner seeking federal habeas relief, the issuance of a COA
is a jurisdictional prerequisite to appellate review. 4 We may issue a COA “only
if the applicant has made a substantial showing of the denial of a constitutional
right,” 5 meaning that “jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” 6 Stated
another way, we are restricted to “ask[ing] ‘only if the District Court’s decision
was debatable;’” if not, a COA may not issue. 7 This standard allows a COA to
issue “even though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that petitioner will not
prevail.” 8
       The Supreme Court has cautioned that, at this threshold stage, we are
to refrain from “full consideration of the factual or legal bases adduced in
support of the claims.” 9 Our focus must remain on the limited inquiry as to


       4 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
       5 28 U.S.C. § 2253(c)(2).
       6 Buck v. Davis, 137 S. Ct. 759, 773 (2017).
       7 Id. (quoting Miller-El, 537 U.S. at 348).
       8 Id. (quoting Miller-El, 537 U.S. at 338).
       9 Id. (quoting Miller-El, 537 U.S. at 336).

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                                    No. 17-70025
whether a COA should issue and avoid the merits of the appeal as a means to
justify a denial of a COA. 10 In a capital case, should any doubt remain after
this inquiry as to the propriety of a COA, we resolve those doubts in the
petitioner’s favor. 11
                                          III
      Under the Antiterrorism and Effective Death Penalty Act (AEDPA),
federal habeas relief is available to petitioners “in custody pursuant to the
judgment of a State court” on the basis of “any claim that was adjudicated on
the merits in State court” 12 when the state proceeding “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” 13 or if the decision was “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 14
      Batiste objects to the state habeas court’s resolution of the merits of his
IATC claim. To be entitled to relief, he must “show both that his counsel
provided deficient assistance and that there was prejudice as a result.” 15 This
standard is “highly deferential.” 16       For trial counsel’s performance to be
deficient, it must fall below an objective standard of reasonableness such that
“counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” 17         There is “a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional



      10  Id. (quoting Miller-El, 537 U.S. at 336-37).
      11  United States v. Bernard, 762 F.3d 467, 471 (5th Cir. 2014) (quoting Ramirez v.
Dretke, 398 F.3d 691, 694 (5th Cir. 2005)).
       12 28 U.S.C. § 2254(d).
       13 Id. § 2254(d)(1).
       14 Id. § 2254(d)(2).
       15 Harrington v. Richter, 562 U.S. 86, 104 (2011).
       16 Id. at 105 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
       17 Id. at 104 (quoting Strickland, 466 U.S. at 687).

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assistance.” 18 To establish prejudice, Batiste must do more than “show that
the errors had some conceivable effect on the outcome of the proceeding.” 19
Rather, he must show “a reasonable probability”—that is, “a probability
sufficient to undermine confidence in the outcome”—“that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” 20 For a COA to issue, jurists of reason must be able to debate
whether Batiste established both deficiency and prejudice. 21
      The district court found the state court habeas resolution of this issue to
be reasonable, and we agree without reaching the issue of prejudice. Batiste
challenges the finding that he failed to establish that trial counsel performed
deficiently by not discovering and then presenting neuropsychological testing
that Batiste’s meningitis as an infant may have caused “frontal lobe damage
that resulted in executive functioning deficits for which Batiste bears no
blame.” 22 Batiste acknowledges that trial counsel secured multiple mental
health experts, and that the jury heard evidence of his early hospitalization as
well as his risk-taking, impulsive and violent behavior during his life, but
Batiste nonetheless contends that “trial counsel provided no expert medical
testimony or other context for the significance of Batiste’s hospitalization as a
nine-month-old for bacterial meningitis.” 23
      The Supreme Court has observed that “reasonably diligent counsel may
draw a line when they have good reason to think further investigation would
be a waste,” 24 and “when a defendant has given counsel reason to believe that




      18 Id. (quoting Strickland, 466 U.S. at 689).
      19 Id. (quoting Strickland, 466 U.S. at 693).
      20 Strickland, 466 U.S. at 694.
      21 See Buck v. Davis, 137 S. Ct. at 773.
      22 Application, at 27.
      23 Id. at 26-27.
      24 Id.

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pursuing certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as
unreasonable.” 25 Here, the state habeas court considered affidavits from both
trial counsel 26 and also Batiste’s expert, Dr. Underhill, 27 pertaining to the issue



       25  Strickland v. Washington, 466 U.S. at 691. Batiste’s further reliance on the
Supreme Court’s ineffectiveness ruling in Rompilla v. Beard, 545 U.S. 374 (2005), is
unavailing. The Supreme Court in Rompilla required “reasonable efforts to obtain and review
material counsel knows the prosecution will probably rely on as evidence of aggravation at
the sentencing phase of trial.” 545 U.S. at 377; see Escamilla v. Stephens, 749 F.3d 380, 389
(5th Cir. 2014). The directive in Rompilla did not set a particular level of investigation in
every case--“reasonably diligent counsel may draw a line when they have good reason to think
further investigation would be a waste,” Rompilla, 545 U.S. at 383—and, regardless, Batiste
identifies no aggravation evidence offered by Texas that counsel did not obtain prior to the
sentencing. See also Timberlake v. Davis, 418 F.3d 702 (7th Cir. 2005). Indeed, Rompilla is
further distinguishable because, there, in view of the prosecution’s forewarning, trial counsel
had a duty to investigate the file readily available at the courthouse in preparation for the
sentencing hearing and for possible leads to mitigation evidence. 545 U.S. at 383–886. The
Supreme Court explained that counsel did not “look at any part of that file, including the
transcript, until warned by the prosecution a second time.” Id. at 384. Had counsel looked,
he would have discovered “a range of mitigation leads that no other source had opened up.”
Id. at 390. Comparison of Batiste’s case with Rompilla indicates that the state habeas court
did not unreasonably apply Strickland’s deficiency prong by concluding that Batiste’s trial
counsel performed an adequate mitigation investigation.
        26 Defense counsel’s habeas affidavit, asserting inter alia that “I have been trying

death penalty cases since 1976 and have tried quite a few and have tried them from both
sides of the table…. One of the realities of death penalty litigation that all experienced
defense attorneys will admit is this: if you use mental health evidence, short of proving actual
insanity, you run the risk of making the defendant look even more dangerous to the jury, and
frankly it is generally true, because they are more dangerous…. We had no information from
any source, be it a family member, friend, our experts or investigators, or any record that
would indicate a frontal lobe disorder, or any mental disorder. He was sharp and I personally
saw him make decisions. I am very careful not to call witnesses, especially experts, who on
cross examination can destroy our case.”
        27 Affidavit of James Underhill, asserting inter alia that “Mr. Batiste’s frontal lobe

functioning with regard to risk taking is impaired…. Mr. Batiste’s brain impairment renders
him unlikely to stop risky behavior once it has begun, and in fact, causes him to behave in a
way that actually increases the risk associated with a given situation despite being aware of
the costs…. There are several possible etiologies of the brain dysfunction that Teddrick
Batiste demonstrates on neuropsychological testing. The impairment can result from head
trauma or illness…[and] contributing factors…could have been the result of a lack of pre-
natal care his mother received during her pregnancy and/or her diet while pregnant.
Furthermore, the meningitis Mr. Batiste was reported to have suffered from as [sic] a neonate
could have contributed to or been the direct cause of Mr. Batiste’s impairment.”
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                                      No. 17-70025
of meningitis frontal lobe damage, and then credited the former that “counsel
had no information from any expert, investigator, record, family member, or
friend indicating that the applicant had any indicia of frontal lobe disorder,”
and discredited the latter as to the inference that such damage caused Batiste’s
“risk taking behavior.”        Furthermore, the state habeas court noted that
evidence of impulsivity and poor cognitive function was presented yet also that
other evidence disproved that Batiste was unable to control his behavior.
       We agree with the district court that reasonable jurists could not debate
whether the state habeas court was unreasonable in finding that trial counsel
lacked reason to investigate further and develop that Batiste’s cognitive deficit
may have been caused by frontal lobe damage due to meningitis in infancy.
None of trial counsel’s three mental health experts identified this as necessary
neuropsychological mitigation inquiry, even though two experts extensively
interviewed Batiste. 28 Additionally, as the state habeas court observed and
the district court elaborated, Dr. Underhill’s affidavit supporting Batiste’s
habeas contention was vague and inconsistent in its suggestion that Batiste’s
risky behavior traced to the meningitis he was treated for.
                                      Conclusion
       On review of the state court’s denial of Batiste’s mitigation
ineffectiveness claim, jurists of reason could not debate whether the state
habeas court acted contrary to or unreasonably applied Strickland in
concluding that Batiste failed to make “a substantial showing of the denial of
a constitutional right” 29 because Batiste’s trial counsel acted in an objectively




       28 We have highlighted the relevance in IATC claims of counsel’s decision to disregard
expert recommendations actually given to counsel to seek more testing. See, eg. Lockett v.
Anderson, 230 F.3d 695, 711-714 (5th Cir. 2000).
       29 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations

omitted).
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                                 No. 17-70025
reasonable manner in investigating, selecting and presenting mitigation
evidence.
                             *        *         *
     For the foregoing reasons, Batiste’s request for a COA is DENIED.




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