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

                                                                            FILED
                                                                           April 16, 2008

                                       No. 07-70032                   Charles R. Fulbruge III
                                                                              Clerk

JOSE LUIS VILLEGAS

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (06-CV-402)


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       This case involves an application for a certificate of appealability (“COA”)
filed by Jose Luis Villegas to appeal the district court’s denial of habeas corpus
relief under 28 U.S.C. § 2254. Villegas seeks a COA to appeal the denial of his
claims that counsel provided ineffective assistance during the penalty phase of
his trial by failing to (1) investigate thoroughly his background, character,
personal circumstances, and mental health history; and (2) present adequate


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-70032

evidence of his background, character, personal circumstances, and mental
health history in a manner sufficient to provide the jury with a vehicle to
consider and give meaningful effect to the evidence in such a way that it would
mitigate the imposition of the death penalty. Because we conclude that Villegas
has failed to make a substantial showing of the denial of a constitutional right,
we deny his application for a COA.
                              I. BACKGROUND
      The district court set forth the relevant facts as follows:
      A jury convicted Villegas of capital murder for killing his girlfriend,
      Erida Perez Salazar, her three-year-old son Jacob, and her mother,
      Alma Perez. At approximately 9:15 a.m. on January 22, 2001,
      Lionicio Perez returned home after being excused early from jury
      service. Mr. Perez found his wife [sic] bruised body lying lifeless in
      a pool of blood. He ran to a neighbor’s house, asked his neighbor to
      call the police, and returned to find the bodies of his daughter and
      grandson. When the police arrived, a neighbor said that she saw
      Villegas leaving the Perez home at approximately 8:45 a.m.

      At approximately 9:30 a.m., the police spotted Villegas in Ms.
      Salazar’s vehicle. The police apprehended Villegas after a high-
      speed chase and foot pursuit. Villegas had three baggies of cocaine
      in his possession when arrested. After being advised of his rights,
      Villegas confessed to the three murders.

      Villegas described how he arrived at the Perez home at 5:00 a.m.
      that morning. He and Ms. Salazar consumed around $200 of
      cocaine. After Mrs. Perez returned home from taking Ms. Salazar’s
      daughter to school, she discovered Villegas’ presence in the home.
      Mrs. Perez had previously warned her daughter not to let Villegas
      enter the house. When Mrs. Perez ordered Villegas to leave, he
      stabbed her several times with a kitchen knife. Villegas then went
      to a bedroom and stabbed Ms. Salazar and her son to death.
      Villegas left in Ms. Salazar’s vehicle, pawned a television he stole
      from the Perez home, and bought more cocaine. Villegas told the
      police that he wanted to return to the Perez home to commit suicide
      by overdosing on cocaine, but fled when he saw police already in the
      home.


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       On May 16, 2002, a jury found Villegas guilty of capital murder and
sentenced him to death. He appealed his conviction and sentence to the Texas
Court of Criminal Appeals (“TCCA”), which affirmed his conviction and sentence
in an unpublished opinion. See Villegas v. Texas, No. 74,361 (Tex. Crim. App.
Feb. 14, 2004). He then filed a timely state application for writ of habeas corpus.
The state habeas court held an evidentiary hearing, issued findings of fact and
conclusions of law, and recommended that habeas relief be denied. The TCCA
denied relief in an unpublished order. See Ex parte Villegas, No. WR-62023-01,
2005 WL 2220028 (Tex. Crim. App. Sept. 14, 2005).
       On September 14, 2006, Villegas filed a timely federal petition for writ of
habeas corpus. In his petition, he argued, inter alia, that counsel provided
ineffective assistance during the penalty phase of his trial by failing to (1)
investigate thoroughly his background, character, personal circumstances, and
mental health history; and (2) present adequate evidence of his background,
character, personal circumstances, and mental health history in a manner
sufficient to provide the jury with a vehicle to consider and give meaningful
effect to the evidence in such a way that it would mitigate the imposition of the
death penalty.1       The district court denied both claims on the merits and
subsequently denied a COA. Villegas filed a timely notice of appeal and the
instant application for a COA.
                           II. STANDARD OF REVIEW
       Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a COA may not issue unless “the applicant has made a substantial
showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473,
483 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this
requirement includes a showing that “reasonable jurists could debate whether

       1
        Although Villegas raised eight other claims in his initial federal habeas petition, he
does not seek a COA with respect to those claims on appeal.

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(or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Id. at 483-84 (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)). As the Supreme Court 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 amongst 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.
      When a court of appeals side steps this process by first deciding the
      merits of an appeal, and then justifying its denial of a COA based
      on its adjudication of the actual merits, it is in essence deciding an
      appeal without jurisdiction.

Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003).
      In sum, Villegas need not show that his habeas petition will ultimately
prevail on the merits in order for this court to issue a COA. Id. at 337. In fact,
the Supreme Court has specifically instructed that a court of appeals should not
deny a COA simply because the petitioner has not demonstrated an entitlement
to relief. Id. Instead, “where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. at 338 (citing Slack, 529 U.S. at 484). For claims that were
adjudicated on the merits in state court, deference to the state court’s decision
is required unless the adjudication was “contrary to, or involved an unreasonable
application of, clearly establish Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or “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)(2).

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                                III. ANALYSIS
      Both claims raised by Villegas challenge whether trial counsel provided
ineffective assistance. The Supreme Court has set forth a familiar two-prong
test for examining such claims:
      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable. Unless
      a defendant makes both showings, it cannot be said that the
      conviction or death sentence resulted from a breakdown in the
      adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Sonnier v.
Quarterman, 476 F.3d 349, 356 (5th Cir. 2007).
      Villegas’s specific challenge goes towards the sufficiency of counsel’s
investigation and presentation of mitigating evidence during the penalty phase
of his trial. Generally accepted standards of competence require that counsel
conduct a reasonable investigation into an accused’s background and character.
Miniel v. Cockrell, 339 F.3d 331, 344 (2003) (citing Williams v. Taylor, 529 U.S.
362 (2000)). In evaluating counsel’s performance, we must conduct an objective
review measured for “reasonableness under prevailing professional norms,”
which includes a context-dependent consideration of the challenged conduct as
seen “from counsel’s perspective at the time.” Wiggins v. Smith, 539 U.S. 510,
523 (2003) (quoting Strickland, 466 U.S. at 688-89).              To make this
determination, the Supreme Court has condoned reliance upon the ABA
Guidelines, which provide that counsel’s investigation “should comprise efforts
to discover all reasonably available mitigating evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.” Id. at 524 (quoting ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty

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Cases 11.4.1(C), p.93 (1989)). A reasonable investigation will most likely include
topics such as the accused’s medical history, educational history, employment
and training history, family and social history, prior adult and juvenile
correctional experience, and religious and cultural influences. Id. (citing ABA
Guidelines 11.8.6, p. 133). However, counsel’s failure to research and present
mitigating evidence during the penalty phase is not per se ineffective assistance.
See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir. 1997). Instead, “[s]trategic
choices made after a less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.   In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466
U.S. at 690-91).    “Nor does Strickland require defense counsel to present
mitigating evidence at sentencing in every case.” Id. at 533. As the Supreme
Court reiterated, “our principal concern in deciding whether [counsel] exercised
‘reasonable professional judgment,’ is not whether counsel should have
presented a mitigation case. Rather, we focus on whether the investigation
supporting counsel’s decision not to introduce mitigating evidence . . . was itself
reasonable.” Id. at 522-23 (quoting Strickland, 466 U.S. at 691). There is a
“strong presumption” that counsel’s conduct “falls within the wide range of
reasonable professional assistance,” and we may “not find ineffective assistance
of counsel merely because [we] disagree[] with counsel’s trial strategy.” Bell v.
Cone, 535 U.S. 685, 698 (2002); Strickland, 466 U.S. at 689.
      During the penalty phase in this case, the state presented evidence
regarding the profound impact this crime had on the surviving family members.
The state also presented the testimony of various police and probation officers
regarding other crimes and bad acts Villegas committed over the years,
including a number of assaults against family members, a burglary and

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shoplifting charge, and an incident of indecency with his five-year old daughter.
Villegas’s probation officer testified that Villegas was not a good probationer.
       Villegas presented seven mitigating witnesses. Dr. William Swan Jr.
testified about the prolonged and painful death of Villegas’s mother, who died
from scleroderma and underwent 18 amputations prior to her death. Christina
Barrera, Villegas’s older sister, testified about their mother’s illness and its
impact on the family, their father’s alcoholism and abuse, and her concerns over
Villegas’s mental health. Arcelia Casarez, Villegas’s ex-mother-in-law, testified
about Villegas’s troubled relationship with her daughter, her concerns over
Villegas’s mental health, and that she still very much cared for Villegas. San
Juanita Luna, Villegas’s cousin, testified about the death of Villegas’s mother
and his father’s alcoholism. Joseph Hovart, Ph.D., a psychologist, testified that
Villegas suffered from intermittent explosive, dissociative, and major depressive
disorders, recurrent and severe. He also testified about Villegas’s use of drugs,
the trauma Villegas experienced from witnessing his mother’s death, and
Villegas’s abusive relationship with his father. He opined, “I think that when
he killed those three people, that it was a function of the intermittent explosive
disorder and the cocaine abuse and not sleeping at all for a period of time.” Jose
Luis Villegas, Sr., Villegas’s father, testified about his relationship with his son
and that he was a violent father. Finally, Dennis Longmire testified about the
Texas death penalty and his belief that it did not deter crime and could
perpetuate violence through institutional example.2
       During the state habeas evidentiary hearing, Villegas presented additional
mitigation evidence. His older sister provided a much more detailed account of


       2
         During the guilt-innocence phase, Dr. Carlos Estrada, a psychiatrist, also testified
about Villegas’s mental health problems and his social and life history that contributed to
these problems. He diagnosed Villegas with intermittent explosive, post-traumatic stress, and
dissociative disorders and addiction to cocaine, marijuana, and alcohol. He concluded that
intermittent explosive disorder was the condition most related to the crime.

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                                       No. 07-70032

Villegas’s childhood, including his mental health history and his relationship
with their abusive father. Carolina Villegas, Villegas’s younger sister, also
testified about his childhood, including his mental health history, his drug
problems, his abusive relationship with their father, and the impact their
mother’s death had on the family. Dr. Estrada provided a much more detailed
account of Villegas’s intermittent explosive disorder. He also diagnosed Villegas
with post-traumatic stress disorder, which he opined resulted from Villegas’s
abusive childhood and having witnessed his mother’s death. He further opined
that Villegas’s condition was treatable. He testified about his frustrations with
explaining these concepts to counsel and to the jury, claiming to be unable to
relate, in a meaningful manner, an accurate picture of Villegas’s mental illness
and how it related to the tragic events in this case. Finally, Villegas’s cousin
filed an affidavit indicating that she thought Villegas was mentally slow.3
       In response, the state presented various affidavits and exhibits from
individuals who worked on Villegas’s case: Grant Jones, trial co-counsel, Lisa
Lawrence, a paralegal, and Eva Reed, a mitigation specialist. Jones indicated
that the defense team conducted a thorough investigation into Villegas’s
personal, social, and mental health histories and made a strategic choice not to
call Carolina Villegas, Villegas’s younger sister, because of her mental health
problems and her reluctance to testify. He further indicated that Dr. Estrada
never voiced his frustrations about being unable to discuss Villegas’s diagnosis



       3
        Although Norma Villegas, Villegas’s wife, exercised her spousal privilege to not testify
during the penalty phase, she did testify at the state habeas evidentiary hearing about her
marriage, Villegas’s abuse of drugs and alcohol, and his role as a loving father. However,
counsel can hardly be held accountable for not presenting such evidence to the jury during the
penalty phase given that Norma Villegas exercised her state-recognized privilege to not testify
on her husband’s behalf. Villegas also presented to the state habeas court two affidavits from
jury members regarding their deliberations. However, Rule 606(b) of the Federal Rules of
Evidence prohibits the use of such evidence to determine the effect any particular thing might
have had on the outcome of a verdict. Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005).

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in a manner that would be meaningful to the jury. Lawrence and Reed each
confirmed this information in separate affidavits.
      In reviewing this evidence, the state habeas court stated:
      Villegas’[s] trial attorneys made a thorough investigation of his
      social history, including the discovery of evidence of the many
      abuses caused by his father, the trauma caused by his mother’s
      terminal illness, and Jose Villegas’[s] own history of substance
      abuse. The Court further finds that, comparing the information
      available to the defense . . . with the testimony of witnesses at the
      writ hearing, Jose Villegas has offered virtually no new information
      that was not already known to the defense attorneys by their pre-
      trial investigation of the case.

The state habeas court also found that counsel exhibited reasonable and
informed strategic decisionmaking in investigating and presenting mitigating
evidence during the penalty phase. Thus, the state habeas court concluded that
Villegas failed to establish that counsel’s performance was deficient.
      The district court below likewise concluded that although Villegas
amassed additional mitigation evidence at his state habeas hearing, that
evidence was largely cumulative and differed from the evidence presented at
trial only in detail, not in mitigation thrust. Moreover, according to the district
court, counsel made a consistent effort throughout the penalty phase to connect
how Villegas’s mental health problems, drug and alcohol abuse, and family
history contributed to the murders. Against this backdrop, the jury had to
evaluate Villegas’s violent background, lengthy criminal history, and the fact
that he brutally stabbed three individuals, including a three-year old child.
Based on the record evidence, the district court agreed with the state habeas
court that “had the jury been confronted with the few pieces of additional
mitigating evidence put forward by Jose Villegas in connection with the writ
proceeding, there is no reasonable probability that it would have resulted in a




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different verdict or sentence” and concluded that the state habeas court did not
unreasonably apply federal law in rejecting Villegas’s Wiggins claims.
      We agree. This is not a case in which counsel did nothing. In fact,
Villegas concedes that counsel undoubtedly investigated his background and
mental health history sufficient enough to formulate a defense strategy. He
simply challenges how that strategy was executed. For example, he argues that
“it is unclear how much time [counsel] spent gaining an understanding of his
mental condition and how his past and history related to it. . . . [and] whether
[counsel] investigated enough or educated themselves enough to know how to
execute that strategy at trial.” Furthermore, he argues that counsel did not
connect his entire past “in such a manner that the jury could gain a picture of
who [he] was and why he was less culpable than other defendants who did not
suffer from such maladies.” This court rejected similar arguments in Coble v.
Quarterman, 496 F.3d 430 (5th Cir. 2007). In Coble, the petitioner argued, inter
alia, that (1) counsel did not adequately prepare mitigating witnesses, (2) these
witnesses could have been presented in a more effective manner, and (3) counsel
failed to adequately present a coherent theory regarding the mitigation case. Id.
at 436-37. In rejecting these arguments, this court emphasized that “[at] its
base, [the petitioner’s] current challenge is to the strategy employed by trial
counsel. Such a challenge does not establish ineffective assistance.” Id. at 437
(citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). Here, Villegas is equally
unable to articulate exactly how counsel’s performance was deficient other than
summarily concluding that counsel could have presented a more persuasive
mitigation case. Stated differently, Villegas challenges only the persuasiveness
of an otherwise reasonable mitigation strategy employed by counsel after
conducting a thorough investigation, something Strickland and its progeny
prohibit. That is not to say that under some circumstances, the presentation of
mitigation evidence can be so inadequate that it amounts to no strategy at all or

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falls outside the wide range of reasonable assistance as determined by prevailing
professional norms, but this is not one of those cases. After reviewing the record,
we are unable to say that counsel’s investigation and presentation of mitigation
evidence were constitutionally deficient.
       In short, we agree that the additional evidence gathered by Villegas at the
state habeas hearing was largely cumulative,4 the state habeas court did not
unreasonably apply federal law in rejecting Villegas’s Wiggins claims, and it is
beyond debate that Villegas has not made a substantial showing of the denial of
a constitutional right.
                                  IV. CONCLUSION
       For the foregoing reasons, the application for a COA is denied.




       4
         Villegas argues that counsel never presented any evidence that his mental health
condition was treatable and thus, the jury was forced to conclude that he would always be a
threat to society. However, in closing argument, counsel argued that Villegas would not be a
threat to society while incarcerated because of prisons’s “highly restrictive environment,” he
would receive “treatment or counseling” for his mental illness, and he would “be separated
from drugs and from the stressors that caused his violent behaviors.” Thus, counsel presented
some evidence from which a rational jury could have concluded that Villegas would not always
be a threat to society.

                                             11
