     Case: 10-70009 Document: 00511289378 Page: 1 Date Filed: 11/09/2010




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

                                                 FILED
                                                                          November 9, 2010

                                       No. 10-70009                         Lyle W. Cayce
                                                                                 Clerk

GUADALUPE ESPARZA

                                                   Petitioner-Appellant
v.

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
                             USDC No. 5:07-CV-265


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Petitioner Guadalupe Esparza (“Esparza”), convicted of capital murder in
Texas and sentenced to death, requests this Court to issue a Certificate of
Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Esparza contends that
the evidence demonstrated that he is mentally retarded, rendering him ineligible
for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Relying on
the Sixth Amendment, Esparza asserts that he is entitled to a jury finding with


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-70009

respect to the issue of mental retardation. He also contends that his counsel
rendered ineffective assistance by failing to investigate his mental retardation
and present evidence of his mental retardation at sentencing. Finding that
Esparza has not made a substantial showing of the denial of a constitutional
right, we DENY a COA.
      I.    PROCEDURAL HISTORY
      A Bexar County, Texas grand jury returned an indictment charging
Esparza with the capital murder of 7-year old Alyssa Vasquez while in the
course of committing aggravated sexual assault, kidnapping, and burglary. T EX.
P ENAL C ODE § 19.03(a)(2).    A jury convicted Esparza as charged, and the
sentence imposed was the death penalty. The Texas Court of Criminal Appeals
affirmed Esparza’s conviction in an unpublished opinion. Esparza v. State, No.
74,096 (Tex. Crim. App. June 4, 2003), cert. denied, 540 U.S. 1006 (2003).
Represented by counsel, Esparza applied for state habeas relief, and the trial
court recommended denying relief.        Additionally, Esparza filed a separate
application for writ of habeas corpus pro se. With respect to the first application,
the Court of Criminal Appeals adopted the findings and conclusions of the trial
court and denied the application. Ex parte Esparza, Nos. WR-66111-01, WR-
66111-02 (Tex. Crim. App. Feb. 28, 2007). The Court of Criminal Appeals also
dismissed the pro se application as an abuse of the writ. Esparza then filed a
federal petition for writ of habeas corpus, which the district court denied in a
memorandum opinion and order. Esparza v. Quarterman, No. 07-265 (W.D. Tex.
Mar. 24, 2010). The district court also denied a COA. Esparza now requests a
COA from this Court.
      II.   STANDARD OF REVIEW
      Esparza filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after
the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S.

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                                  No. 10-70009

320, 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA,
we defer to a state court’s adjudication of a petitioner’s claims on the merits
unless the state court’s decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States”; or (2) “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s
decision is deemed contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court based on materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A
state court’s decision constitutes an unreasonable application of clearly
established federal law if it is “objectively unreasonable.” Id. at 409. Further,
pursuant to § 2254(e)(1), state court findings of fact are presumed to be correct,
and the petitioner has the burden of rebutting the presumption of correctness
by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th
Cir. 2001).
      Additionally, under AEDPA, a petitioner must obtain a COA before he can
appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see
also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (“[U]ntil a COA has been
issued federal courts of appeals lack jurisdiction to rule on the merits of appeals
from habeas petitioners.”). As the Supreme Court has explained:
             The COA determination under § 2253(c) requires an overview
      of the claims in the habeas petition and a general assessment of
      their merits. We look to the District Court’s application of AEDPA
      to petitioner’s constitutional claims and ask whether that resolution
      was debatable among jurists of reason. This threshold inquiry does
      not require full consideration of the factual or legal bases adduced
      in support of the claims. In fact, the statute forbids it.



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                                  No. 10-70009

Miller-El, 537 U.S. at 336.
      A COA will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating 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.” Miller-El, 537 U.S. at 327 (citation omitted). “The question is
the debatability of the underlying constitutional claim, not the resolution of that
debate.” Id. at 342. “Indeed, a claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.”    Id. at 338.   Moreover,
“[b]ecause the present case involves the death penalty, any doubts as to whether
a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).
      III.   ANALYSIS
             A. ATKINS CLAIM
      In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held
that the Eighth Amendment prohibited the execution of mentally retarded
persons. Esparza contends that he is mentally retarded, and thus is ineligible
for the death penalty. Subsequent to Atkins, Texas courts have followed the
definition of “mental retardation” adopted by the American Association on
Mental Retardation and the nearly identical definition set forth in § 591.003(13)
of the Texas Health & Safety Code. In re Salazar, 443 F.3d 430, 432 (5th Cir.
2006). Pursuant to this test, a petitioner claiming mental retardation must
demonstrate that “he suffers from a disability characterized by ‘(1) significantly
subaverage general intellectual functioning,’ usually defined as an I.Q. of about
70 or below; ‘(2) accompanied by related limitations in adaptive functioning; (3)
the onset of which occurs prior to the age of 18.’” Id. (quoting Ex parte Briseno,

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                                 No. 10-70009

135 S.W.3d 1, 7 (Tex. Crim. App. 2004)) (internal quotation marks omitted).
Esparza bore the burden of proving by a preponderance of the evidence that he
is mentally retarded. Briseno, 135 S.W.3d at 12. A determination of whether
a person is mentally retarded is a factual finding. Moore v. Quarterman, 533
F.3d 338, 342 (5th Cir. 2008) (en banc); Clark v. Quarterman, 457 F.3d 441, 444
(5th Cir. 2006).
      Esparza raised his claim of mental retardation during his state habeas
proceedings, and the state court held an evidentiary hearing. During this
hearing, several expert witnesses testified regarding Esparza’s I.Q. scores and
adaptive functioning.    Also, his sister testified about his childhood, and
Esparza’s prison and school records were admitted.
                   1.   Lynda Tussay
      Esparza called Lynda Tussay to testify. Tussay is a licensed professional
counselor and has a master’s degree in Human Development and Counseling.
Tussay interviewed Esparza and administered intelligence tests. She testified
that the range of mental retardation was a 70 I.Q. or lower. Esparza scored a
71 (standard error of plus or minus 5 points) on the Raven’s Standard
Progressive Matrices Test.    With respect to the Revised Minnesota Paper
Formboard Test, Esparza scored a 73 (standard error of plus or minus 4 points).
Tussay explained that the above two scores were within the range of borderline
intellectual functioning. On the achievement tests, Esparza was at the level of
first grade math and below the level of first grade on this spelling test. On
another spelling test, he scored at the level of grade 6.3. Esparza’s vocabulary
was at a grade level of 6.2, and his reading comprehension was at a 4.7 grade
level. Tussay also administered the Comprehensive Trail-Making Test, and
Esparza scored better than 58 percent of the population. On that test, a score
of under 40 percent would indicate mental retardation. With respect to the
Controlled Oral Word Association Test, Esparza scored 25.82, which is nearly

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                                 No. 10-70009

four full standard deviations below the mean, which is 48.43. Tussay testified
that the score indicates “a person who does not do well with any kind of form of
written language.”
      The Vineland Adaptive Behavior Scale Test is a questionnaire for the
caregiver of the person being tested regarding the subject’s developmental
history. Tussay explained that this test is the “essential measure, the one that
most psychologists use when using the adaptive behavior scales.”            She
administered the test to Esparza’s older sister, Esther Moncado, who was
Esparza’s primary caregiver when he was a child. The mean score is 100, and
Esparza’s score was below 20, which is the “lowest score” possible.
      Tussay further testified that she “can usually tell when someone is trying
to not do a good job. That wasn’t what he was trying to do.” In her opinion,
“there was no deliberate sabotage on his part. He just did not understand. He
just didn’t understand what I was trying to tell him.” In Tussay’s opinion,
Esparza “meets all of the criteria for mental retardation.”
      During the cross examination of Tussay, the prosecutor produced two of
Esparza’s penitentiary packets, which included the Texas Department of
Corrections Social and Criminal History page. The first packet provided that in
1985 Esparza had an I.Q. score of 86. The second packet provided that in 1993
Esparza had an I.Q. score of 88. After reviewing the packets, Tussay testified
that she could not “formulate an opinion based on” them because she did “not
know what they based their tests on.” The packets did not provide what specific
tests were administered to Esparza. She also admitted that Esparza heard from
his lawyer that if he was mentally retarded, then the Supreme Court’s decision
in Atkins would bar his execution.
      Additionally, Tussay testified that during her interview of Esparza she
noticed that Esparza was “able to speak very well.” She discovered that his
family had done migrant farm work and thus “he was not really ever very rooted

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                                  No. 10-70009

in any one school.” Esparza had been in special education classes and failed the
ninth grade three times before dropping out of high school. Tussay also stated
that Esparza told her that he failed the test for a GED but that the instructor
issued a GED so that the instructor would be compensated.
      Tussay also spoke with Esparza’s older sister who indicated that Esparza
had a “history of adaptive problems.” His sister had “difficulty in teaching him
how to tie his shoes, how to dress himself. It took longer and he was older before
he was able to attain those skills.”     Esparza did not “play like the other
children.” For example, he did not develop “imaginary games.”
                  2.     Recording of Jail Phone Calls
      Esparza was moved from death row to Bexar County Jail during the time
of the state writ evidentiary hearing. Sergeant Mark Gibson of the Bexar
County Sheriff’s office submitted a recording of three phone calls made by
Esparza during his stay at county jail. The recording was played at the writ
hearing. Esparza identified himself at the beginning of each phone call. He
helped arrange a three-way conference call. He spoke to his attorney about the
impending court proceedings. He referred to the Supreme Court’s opinion in
Atkins as the “2002 case.” Esparza boasted that his attorney was very good and
had gotten other inmates off death row. Esparza recounted to another person
what his attorney had told him about the need to postpone the hearing. In one
phone call, Esparza was advising another inmate’s family regarding that
inmate’s civil suit against jail officials. Esparza also informed one person that
he could only have visitors on Mondays and Wednesdays. He complained that
the phone cards were unfairly charging too much money for the minutes
provided.
                  3.     Dr. Kern
      The State called Dr. Paul Kern, Ph.D., a psychologist at the University
Health System, Detention Health Care Services. Dr. Kern testified that Joanna

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                                       No. 10-70009

W. Guerrero, a psychometrist with a master’s degree, administered two different
intelligence tests and an achievement test to Esparza. Esparza scored in the
mildly mentally retarded range on the intelligence tests, and his achievement
test score suggested very poor basic academic skills. Dr. Kern interviewed
Esparza and interpreted the test scores.
      Together Dr. Kern and Guerrero compiled a Summary of Intellectual
Testing that was submitted to the state court. This report provided that, based
on Guerrero’s clinical impression, she estimated Esparza’s intelligence was
within the low average range.1 The report provided that Esparza “displayed an
extremely low level of motivation while responding to knowledge-based
questions, providing a large number of ‘I don’t know’ responses and displaying
a strong hesitance to venture guesses.”              His responses to knowledge-based
questions “were almost always incorrect.” Esparza responded that the current
President of the United States was “Ford.” He reported that the United States
flag colors are red, white, and green. Based on his responses, it was “strongly
suspected that he was intentionally performing below the level of his
capabilities.”    For example, “it was subsequently learned that although he
provided a blatantly incorrect definition of a thermometer during the mental
status examination, he had previously provided a correct definition for the same
term during the psychological testing.” Esparza performed very poorly on a
simple memory task. The examiner noted that “it is rare . . . to see performance
as poor as Mr. Esparza’s on the task even among young children with low
intelligence and relatively severe Attention/Deficit Hyperactivity Disorder.”
Also, during the time Esparza was not being asked knowledge-based questions,
his presentation “was suggestive of a much higher level of functioning, and a
clinical estimate of his intelligence based on both his general presentation and



      1
          Guerrero did not testify at the hearing.

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                                  No. 10-70009

the available historical information would place it somewhere within the Low
Average range.”
       Dr. Kern testified that Esparza was able to read and understand his
rights. Indeed, during one meeting, Esparza stopped the interview and asked
for counsel in order to obtain advice regarding whether to cooperate. Esparza
retrieved his attorney’s business card from his cell and successfully contacted his
attorney.   After consulting with counsel, Esparza decided to complete the
interview. Dr. Kern testified that Esparza’s presentation during the interview
did not appear to be that of a mentally retarded person. Dr. Kern concluded that
Esparza’s motivation to do well on the I.Q. tests “was very low” and that the test
results were invalid or inaccurate. Esparza’s test score on the Vineland adaptive
behavior scale, which had been previously administered by Tussay, indicated
that he was profoundly retarded. Dr. Kern explained that a person of that level
of intelligence or adaptive behavior “would be capable of doing almost nothing.
A profoundly mentally retarded person, for example, would have no hope at all
of ever learning language at all. They would have no hope at all of . . . ever
having a job, probably. They would not be able to communicate at all.” Such a
person “would probably spend their whole life in an institution for the mentally
retarded sitting in a corner oblivious to anything.” Dr. Kern explained that a
person can test below their intelligence level but not above it.       He further
testified that I.Q. scores generally do not change over a person’s life. Dr. Kern
opined that Esparza’s scores of 88 and 86 in the penitentiary packets were
consistent with his clinical assessments regarding Esparza’s functioning.
Further, Esparza’s taped phone conversations suggest a higher level of
functioning than the current test scores indicate. In Dr. Kern’s opinion, the
current test results provide “dramatic underestimates of Mr. Esparza’s
knowledge and ability and are best viewed as invalid.”



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                                      No. 10-70009

      Dr. Kern also noted that during Esparza’s 2001 trial Dr. Arambula, a
forensic psychiatrist, had testified that he did not have Esparza tested for
mental retardation because he thought Esparza’s intelligence was “normal.” 2 Dr.
Kern is familiar with Dr. Arambula and relied in part upon his opinion in
assessing Esparza. Finally, Dr. Kern testified that, based on the test results and
his clinical assessments, he did not think that Esparza was mentally retarded.
Instead, as set forth in his report, Esparza’s “intellectual capabilities most likely
fall somewhere within the Low Average range.”
                     4.     Dr. Sparks
      The State also called Dr. John Sparks, a psychiatrist and medical director
of the Bexar County Detention Center. Previously, in his capacity as the medical
director, Dr. Sparks had seen Esparza because of a treatment issue. Dr. Sparks
testified that Esparza “conveyed to me what he needed in a very clear and
concise way.”
      At the request of the state court, Dr. Sparks interviewed Esparza and also
reviewed the report issued by Dr. Kern. Dr. Sparks’ evaluation of Esparza
provides that he “is aware that it may lead to the death sentence if he is not
retarded or may lead to life in prison if he is retarded.” Dr. Sparks concluded
that Esparza was not mentally retarded. Although Dr. Sparks acknowledged
that the current test scores were in the mildly mentally retarded range, his
evaluation provided as follows:
      [E]vidence from multiple sources suggest that the present test
      results provide marked underestimates of his intellectual
      capabilities. He displayed “pervasive evidence of poor test taking
      attitude characterized by low motivation, poor attention and
      concentration, and low task involvement and persistence.”[3 ] He


      2
          Dr. Arambula’s testimony will be more fully discussed infra in the context of
Esparza’s claim of ineffective assistance.
      3
          Dr. Sparks’ evaluation was quoting from Dr. Kern’s report.

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                                   No. 10-70009

      made minimal effort in the testing although his abilities to
      communicate and his ability to handle general living situations
      seem well above the mentally retarded range. He had long term
      gainful employment and knew how to drive and passed the drivers
      test.

      Dr. Sparks’ evaluation also found that Esparza’s functioning “was well
above the retardation level.” Dr. Sparks found that Esparza communicated very
well. Although Esparza does not write well, he “understands language better
than a retarded person can.” Esparza did not receive a good education and thus
“has difficulty in writing communications.” However, his “adaptive ablity is
excellent.” Dr. Sparks found that the I.Q. scores of 86 and 88 contained in the
prison records were consistent with his opinion that Esparza is not mentally
retarded. Although Dr. Sparks initially estimated that Esparza had borderline
intellectual functioning, after hearing Esparza’s taped phone conversations, he
estimated that Esparza’s I.Q. would be “77 or 78, closer to 80, which would be
then low average.”
                   5.    Esther Moncada
      Esparza’s older sister, Esther Moncada, testified at the hearing that
Esparza was a “slow learner” and had trouble tying his shoe laces. Their mother
was hospitalized after a mental breakdown when Esparza was about five or six
years old. Their father moved out of state, and the children were placed in an
orphanage until an uncle brought them back to San Antonio. Their father died
when Esparza was ten or eleven years old. Moncada further testified that
Esparza ate with his hands and had difficulty dressing himself. He dropped out
of school after failing ninth grade three times and worked as a laborer. Esparza
could read and write “a little.”
                   6.    State Court Finding of No Mental Retardation
      The state trial court denied relief on this claim, concluding that Esparza
had failed to establish that he is mentally retarded. The Court of Criminal

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                                    No. 10-70009

Appeals expressly adopted this finding. Esparza challenges the state court’s
finding, contending that there was sufficient evidence to find that he was
mentally retarded.
      As previously set forth, Esparza has the burden of proving by a
preponderance of the evidence that he is mentally retarded. Salazar, 443 F.3d
at 432. The first prong of the test is whether he has significant subaverage
intellectual function, usually defined as an I.Q. score of 70 or below. Briseno,
135 S.W.3d at 7.
      We first note that Judge Mary Roman of the 175th Judicial District Court
of Bexar County presided over both Esparza’s trial and the state evidentiary
hearing. As such, Judge Roman was able to observe Esparza testify in his own
defense during his capital trial.     During trial Esparza was asked to read a
request that he had handwritten at the jail. From the witness stand, Esparza
read aloud as follows: “I would like to ask you if I can be in segregation by
myself because I no longer trust nobody because there is a lot of people that don’t
like me because of a charge that I have, Capital case. I would like to be housed
by myself for my own safety.” Moreover, we agree with the federal district court
that “[t]hroughout his trial testimony, [Esparza] furnished coherent, even
combative testimony fully responsive to both his own trial counsel’s and the
prosecutor’s questions and demonstrated a detailed understanding of the
testimony and other evidence introduced during his capital murder trial.”
      Additionally, Esparza’s penitentiary packets provided that he had an I.Q.
of 86 in 1985 and an I.Q. of 88 in 1993. The experts’ testimony provided that
these scores are well above what a mentally retarded person would score. Dr.
Kern testified that a person’s intelligence score generally is stable and does not
change over a lifetime. There was expert testimony that although a person can
score below their actual level of intelligence, a person cannot score above their
actual level of intelligence.

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      In stark contrast to his previous I.Q. scores in the low average range in his
penitentiary packets, Esparza scores fell within the range of mental retardation
when he knew that he was being tested to determine whether he was eligible for
the death penalty. Indeed, one test score placed him in the range of profoundly
retarded. Dr. Sparks, Dr. Kern, and Guerrero, who administered the tests for
Dr. Kern,4 believed that Esparza had low motivation to actually perform on the
tests and believed the test results were invalid.           Dr. Sparks testified that
Esparza understood that if he was deemed mentally retarded then he could not
be executed.
      On the other hand, Esparza’s expert, Tussay, discounted the higher
previous I.Q. scores of 86 and 88 because the packets did not provide what test
was used. Tussay concluded that Esparza was mentally retarded. Tellingly,
Tussay admitted that this case was the first time she had evaluated an
incarcerated individual for mental retardation. Both Dr. Kern and Dr. Sparks,
however, had years of experience interacting with incarcerated individuals.
Indeed, Dr. Kern was a psychologist at the University Health System, Detention
Health Care Services, and Dr. Sparks was the medical director of the Bexar
County Detention Center. Finally, Dr. Arambula, Esparza’s expert, testified
during the punishment phase of the capital murder trial and opined that
Esparza was of normal intelligence and thus he had not had Esparza tested for
mental retardation. Under these circumstances, Esparza has not shown that the
finding of no subaverage intellectual functioning is debatable among reasonable
jurists. Because Esparza has failed to make a substantial showing on the first
prong of the test, there is no need to address the remaining two prongs. See
Salazar, 443 F.3d at 432 (“To state a successful claim, an applicant must satisfy



      4
        Guerrero’s clinical impression of Esparza was that his intelligence was in the low
average range.

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                                    No. 10-70009

all three pongs of this test.” (citation omitted)). Accordingly, we DENY a COA
with respect to his Atkins claim.




            B.    JURY FINDING ON MENTAL RETARDATION
      Citing Ring v. Arizona, Esparaza also contends that he is entitled to obtain
a jury finding on the issue of whether he is mentally retarded. 536 U.S. 584
(2002). In Ring, the Supreme Court held that because a death sentence was
authorized only if an aggravating factor was present, the Sixth Amendment
required that the aggravating factor must be proved to a jury. Id. at 603–09.
This Court has rejected the instant claim, explaining that neither Ring nor
Atkins “render the absence of mental retardation the functional equivalent of an
element of capital murder which the state must prove beyond a reasonable
doubt.” In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003); see also Woods v.
Quarterman, 493 F.3d 580, 585 n.3 (5th Cir. 2007).
      Moreover, contrary to Esparza’s argument, the holding in Ring cannot be
applied retroactively on collateral review. As a general matter, the Supreme
Court has explained that “Ring announced a new procedural rule that does not
apply retroactively to cases already final on direct review.”          Schriro v.
Summerlin, 542 U.S. 348, 358 (2004).         Although Esparza recognizes that
holding, he nonetheless contends that the decision should be revisited. We, of
course, are bound by the Supreme Court’s decision. United States v. Jones, 132
F.3d 232, 242 (5th Cir. 1998). Further, this Court has rejected his precise
contention in the context of a claim of mental retardation, explaining that this
“claim does not meet the requirements of § 2244(b) because the claim that a jury
must determine mental retardation does not rely upon a new rule of
constitutional law made retroactive by the Supreme Court.” In re Woods, 155 F.
App’x 132, 134 (5th Cir. 2005). Accordingly, we are constrained to find that this

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                                  No. 10-70009

claim is not debatable among reasonable jurists. We DENY his motion for a
COA as to this claim.




            C.     INEFFECTIVE ASSISTANCE OF COUNSEL
      Esparza argues that his Sixth Amendment right to effective assistance of
counsel was violated during the sentencing phase of his trial. He contends that
his trial counsel failed to adequately investigate and present mitigating evidence
with respect to his mental retardation.
      To establish ineffective assistance of counsel, Esparza must show (1)
defense counsel’s performance was deficient and (2) this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
must find that trial counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. The
Supreme Court instructs courts to look at the “norms of practice as reflected in
the American Bar Association and the like” and to consider “all the
circumstances” of a case. Id. at 688. While “[j]udicial scrutiny of counsel’s
performance must be highly deferential,” Esparza can demonstrate deficient
performance if he shows “that counsel’s representation fell below an objective
standard of reasonableness.”      Id. at 688.    However, “[t]here is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” United States v. Webster, 392 F.3d 787, 793 (5th Cir.
2004) (quoting Strickland, 466 U.S. at 689). Strickland’s “prejudice” prong
requires a reasonable probability that, but for the deficient performance of his
trial counsel, the outcome of his capital murder trial would have been different.
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id.
                   1.    Performance Prong

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                                 No. 10-70009

       As previously set forth, Esparza contends that trial counsel rendered
ineffective assistance by failing to investigate and present mitigating evidence
of his mental retardation during the sentencing phase of his trial.            In
determining whether trial counsel’s performance was deficient, our “focus [is] on
whether the investigation supporting counsel’s decision not to introduce
[additional] mitigating evidence of [a petitioner’s] background was itself
reasonable.” Wiggins v. Smith, 539 U.S. 510, 522–23 (2003). Thus, we must
consider the reasonableness of trial counsel’s investigation.
      With respect to investigation, the record reveals that counsel requested the
appointment of a forensic psychologist, a private investigator, and a DNA expert.
Counsel also filed numerous discovery motions. Counsel interviewed at least
two members of Esparza’s family—the two sisters who testified at the
punishment phase of trial. Because Esparza has not submitted an affidavit from
trial counsel, the record does not contain the full extent of counsel’s
investigation. However, as previously stated, Esparza must demonstrate that
counsel’s performance was deficient, Strickland, 466 U. S. at 687, and there is
a strong presumption that counsel’s investigation was reasonable. Webster, 392
F.3d at 79.
      Counsel obtained the appointment of Dr. Arambula, a forensic
psychiatrist.   Dr. Arambula evaluated Esparza and testified during the
punishment phase that he could not identify a specific mental illness. Dr.
Arambula also testified that Esparza was more unstable than a “normal” person
because when he was six years old his mother was institutionalized for mental
illness. As a result, he was temporarily sent to an orphanage. Although unable
to diagnose an illness, Dr. Arambula suspected that Esparza had inherited a
“genetic load” from his mentally ill mother.
      Dr. Arambula testified that after Esparza’s mother remarried and his
father died, Esparza’s stepfather would regularly beat him.           It was Dr.

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                                  No. 10-70009

Arambula’s opinion that the neglect and abuse Esparza suffered as a child did
not allow him to trust other people and made him prone to disagreement and
physical altercations. Dr. Arambula explained that a victim of domestic violence
can repeat the violent behaviors he has suffered.
      Dr. Arambula noted that Esparza obtained a GED in prison. On cross
examination, the prosecutor asked whether he had administered any I.Q. tests
on Esparza. Dr. Arambula responded: “No. I didn’t believe that I needed to,
based on the evaluation.” The prosecutor then inquired: “Because he seems to
have normal intelligence?”     Dr. Arambula responded:        “Yes.”   Accordingly,
defense counsel had a mental health expert evaluate Esparza, and the expert’s
conclusion was that Esparza was of “normal intelligence.”              Moreover, as
previously discussed, the evidence Esparza relies on to demonstrate his mental
retardation is unpersuasive. Under these circumstances, Esparza has failed to
make a substantial showing that counsel’s performance with respect to
investigating the issue of mental retardation was deficient.
      It is not clear from the briefing, but it also appears that Esparza is arguing
that counsel’s presentation of the mitigating evidence about his childhood is
deficient.   Counsel was able to elicit testimony that Esparza’s mother was
institutionalized when he was six years old, and, as a result, he was sent
temporarily to an orphanage. Subsequently, Esparza and his siblings were sent
to live with their grandmother. His sisters testified that his mother was in the
hospital once or twice a year due to her mental illness. The testimony also
demonstrated that Esparza was beaten by his stepfather. Further, one sister
was asked “how much schooling” Esparza had, and she replied: “Not much. . . .
I know he stopped going to school because he had to help my mom to pay bills
and all.” Esparza then began working in a restaurant and in construction.
Additionally, counsel elicited testimony from Dr. Arambula that the highly
structured setting in prison would make Esparza less likely to be a future

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                                       No. 10-70009

danger, which is mitigating evidence with respect to the first question given to
the jury after the punishment phase.5             Although Esparza claims counsel’s
questioning of the mitigation witnesses was “very superficial,” he has wholly
failed to explain what else counsel should have elicited from the mitigation
witnesses. As such, he has failed to demonstrate that reasonable jurists would
find debatable his claim that counsel’s performance with respect to investigating
and presenting the evidence in mitigation was deficient.
                     2.     Prejudice Prong
       Because Esparza made an insufficient showing on the first prong of the
test, it is unnecessary for this Court to address the second prong–whether
counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 689.
Nonetheless, we briefly state that it is clear that Esparza has failed to make a
sufficient showing of prejudice. In the context of a claim that counsel failed to
discover and present mitigating evidence, to determine whether a petitioner has
shown the required prejudice, “we reweigh the evidence in aggravation against
the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.
       Here, the aggravating evidence included evidence that Esparza kidnapped
a 7-year old girl from her home in the middle of the night, raped and sodomized
her, and strangled her to death.            Esparza had a previous conviction for
aggravated sexual assault, and the victim of that crime testified at the
punishment phase of this trial. She recounted how Esparza hit her in the head


       5
          The first question is: “Do you find from the evidence beyond a reasonable doubt that
there is a probability that the Defendant, Guadalupe Esparza, would commit criminal acts of
violence that would constitute a continuing threat to society?” The second question is:

       State whether, taking into consideration all the evidence, including the
       circumstances of the offense, the defendant’s character and background, and the
       personal moral culpability of the Defendant, there is a sufficient mitigating
       circumstance or are sufficient mitigating circumstances to warrant that a
       sentence of life imprisonment rather than a death sentence be imposed.


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                                 No. 10-70009

with his gun and raped her at gunpoint after asking her for a ride home in her
car. Another victim testified that Esparza choked her and attempted to rape
her. Shortly before the instant crime, Esparza put his hand underneath the
clothes of a little girl as she was sleeping. The evidence showed that as a
juvenile he attempted to rob another child of his mini-bike at knife point.
Esparza also was the “getaway” driver when two other individuals were stealing
parts from a vehicle. Finally, Esparza had received disciplinary reports in
prison, including an incident in which he was kicking another inmate in the side
while the inmate was lying on the ground.
      With respect to his claimed evidence of mental retardation, as we
previously discussed, the evidence indicates that Esparza was not actually
mentally retarded. Thus, in light of the aggravating evidence presented to the
jury, we are unpersuaded that Esparza has made a substantial showing that
there is a reasonable probability that, had his additional mitigating evidence
been presented, the outcome of the sentencing hearing would have been
different. In other words, we are persuaded that reasonable jurists would not
find Esparza’s claim of ineffective assistance of counsel debatable. We therefore
DENY a COA as to his claim of ineffective assistance of counsel.
      IV.   CONCLUSION
      For the above reasons, the motion for COA is DENIED.




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