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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-70011                              FILED
                                                                           March 27, 2017

RAUL CORTEZ,
                                                                           Lyle W. Cayce
                                                                                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 Eastern District of Texas
                              USDC No. 4:13-CV-83


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner–Appellant Raul Cortez appeals the district court’s denial of
his petition for habeas relief under 28 U.S.C. § 2254. For the reasons below,
we AFFIRM the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    I. Background
       Cortez was convicted of capital murder for his participation in a
quadruple homicide and sentenced to death by a Texas state court. 1 Cortez
was represented at trial by John Tatum, Richard Franklin, and Doug Parks.
During trial, counsel for Cortez did not object to testimony that polygraph tests
helped exclude other suspects, nor did counsel object to testimony that the
State’s key witness took a polygraph test.
       Specifically, the State asked Sergeant Steve Riley whether two prior
suspects who had earlier confessed to involvement in the crime, James Jones
and Daniel Guajardo, were administered polygraph exams. Sergeant Riley
confirmed this to be true.         The State then asked how the results of the
polygraph exams affected the investigation of these two suspects. As to Jones,
the State asked Sergeant Riley whether, “as a result of the examination that
was conducted” he “continue[d] to view James Jones as a viable suspect in this
case?” Sergeant Riley responded, “No, sir, he was no longer considered part of
this offense.” As to Guajardo, the State asked Sergeant Riley whether “[a]s a
result of the knowledge that you gained [from the examination] did you
eliminate Daniel Guajardo as a suspect at that time?”                      Sergeant Riley
responded, “Yes, sir. Any doubts we had before were now gone.” On cross-
examination of Sergeant Riley, however, Cortez’s counsel asked whether the
“legal system considers the results of polygraph exams to be so unreliable they
are not typically even admissible in a court of law?” Sergeant Riley responded,
“That is correct, sir.”
       The State later asked Detective Diana Tilton whether the State’s key
witness, Eddie Williams, was administered a polygraph exam, to which she
answered in the affirmative. The State then asked whether, after the exam


       1The facts of the offense are discussed in our opinion granting Cortez’s certificate of
appealability. See Cortez v. Davis, 665 F. App’x 330 (5th Cir. 2016).
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was finalized, she had a conversation with the person responsible for
administering the exam and what she decided to do as a result of that
conversation.    Detective Tilton responded that, after her discussion with the
exam’s administrator, they “decided to put him in a hotel.” When asked why
Williams was placed in a hotel, Detective Tilton explained that “[w]e wanted
to try to keep him . . . safe. We were more certain of his involvement, but we
weren’t prepared to make an arrest. . . . [W]e wanted to continue talking to
him.”
        Cortez unsuccessfully sought state habeas relief on numerous grounds,
including ineffective assistance of counsel for failure to object to inadmissible
polygraph evidence. The state trial court held an evidentiary hearing and,
after making extensive findings of fact and conclusions of law, denied Cortez’s
request for habeas relief. The Texas Court of Criminal Appeals subsequently
adopted the trial court’s findings and conclusions, and denied Cortez’s habeas
application. See Ex Parte Cortez, No. WR-78666-01, 2013 WL 458197, at *1
(Tex. Crim. App. Feb. 6, 2013).
        Cortez then filed an application for a writ of habeas relief under
28 U.S.C. § 2254, which the district court denied in a lengthy and thorough
opinion. Cortez v. Director, No. 4:13CV83, 2016 U.S. Dist. LEXIS 40700 (E.D.
Tex. Mar. 29, 2016). We granted a certificate of appealability on the question
of whether Cortez’s counsel’s failure to object to the State’s reference to and
use of otherwise inadmissible polygraph evidence amounted to ineffective
assistance of counsel. Cortez v. Davis, 665 F. App’x 330 (5th Cir. 2016).
                           II. Standard of Review
        Federal habeas relief with respect to claims previously “adjudicated on
the merits” in state-court proceedings may not be granted unless the state
court’s decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the

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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). Moreover, a factual determination made
in state court “shall be presumed to be correct” in a subsequent federal habeas
proceeding, and the petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” Blue v. Thaler,
665 F.3d 647, 654 (5th Cir. 2011) (quoting 28 U.S.C. § 2254(e)(1)). “The clear-
and-convincing evidence standard of § 2254(e)(1)—which is arguably more
deferential to the state court than is the unreasonable-determination standard
of § 2254(d)(2)—pertains only to a state court’s determinations of particular
factual issues, while § 2254(d)(2) pertains to the state court’s decision as a
whole.” Id. (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
      The Supreme Court has emphasized that the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) prescribes a “highly deferential
standard for evaluating state-court rulings,” requiring federal courts to give
state court decisions “the benefit of the doubt.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). “The question . . .
is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The burden
of proof is on the petitioner seeking relief. Pinholster, 563 U.S. at 181. On
appeal, we review the district court’s findings of fact for clear error and
conclusions of law de novo. Pondexter v. Quarterman, 537 F.3d 511, 519 (5th
Cir. 2008).
                                III. Discussion
      Cortez argues that his trial counsel provided ineffective assistance of
counsel at the guilt-innocence phase of his trial by failing to object to numerous

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instances of the State’s use of inadmissible polygraph evidence.            “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984).       The familiar Strickland standard
requires proof that the lawyer’s performance was objectively deficient and also
that the petitioner was prejudiced by the deficient performance. Wood v.
Quarterman, 491 F.3d 196, 202 (5th Cir. 2007). Of course, under our highly
deferential standard of review, “the state court’s performance and/or prejudice
rulings are generally reviewed to determine only whether the state-court
decision is unreasonable, not whether, in federal court, petitioner has shown
each [ineffective-assistance-of-counsel] prong.” Pondexter, 537 F.3d at 519. At
bottom, “[t]he pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” Richter, 562 U.S. at 101.
      Cortez argues that the state court misapplied federal law when it
rejected his claim that his counsel was ineffective for failing to object to the
polygraph evidence.    Cortez further maintains that his counsel’s deficient
performance was prejudicial because the polygraph evidence was used both to
discount other suspects who had earlier confessed to involvement in the crime
and to bolster the credibility of the State’s key witness despite evidence of
numerous false statements. We address each argument in turn. Because the
state trial court was the last state court to provide a reasoned decision in this
matter, see Ex Parte Cortez, 2013 WL 458197, at *1, we review that court’s
findings of fact and conclusions of law. See Woodfox v. Cain, 772 F.3d 358, 369
(5th Cir. 2014).
      A. Deficient Performance
      To establish deficient performance, Cortez needed to show in his state
habeas proceeding that his counsel’s failure to object to polygraph evidence

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“f[e]ll below an objective level of reasonableness” “in light of all the
circumstances as they appeared at the time of the conduct.” Pondexter, 537
F.3d at 520. Strickland mandates a “strong presumption” that the challenged
conduct fell within the “wide range of reasonable professional assistance.” 466
U.S. at 689.
      As to counsel’s performance, the state habeas court made the following
findings:
               24. [Cortez]’s counsel’s primary defense strategy was
               to gain credibility with the jury so the jury would
               believe [Cortez] when he testified at the
               guilt/innocence stage of trial.
               25. With their primary defense strategy in mind,
               [Cortez]’s counsel made the decision not to object to
               testimony about polygraph examinations, to avoid
               appearing to the jury like counsel were trying to
               prevent the jury from hearing the truth.
               26. Counsel’s defense strategy was reasonable, and the
               strategy was supported by their decision not to object
               to testimony about polygraph examinations.
               27. Counsel’s decision to appear open and honest about
               the nature of the police investigation also supported
               their defensive theme that the police investigation was
               inept.
               28. One of [Cortez]’s defensive themes was that the
               McKinney Police Department felt considerable
               pressure to solve the murders and the pressure made
               them inept in their investigation of this case.
               ....
               31. If [Cortez]’s counsel made too many objections
               during the police officers’ testimonies about the police
               investigation, however, the jurors may have thought
               that the police investigation appeared inept only
               because [Cortez]’s counsel were preventing them from
               hearing about the full investigation.
               ....

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            33. It was reasonable for [Cortez]’s counsel not to
            object to the inadmissible polygraph testimony to
            avoid muddying the waters about the police
            investigation and detracting from [Cortez]’s defensive
            theory that the police investigation was inept.
            34. It was also reasonable strategy for [Cortez]’s
            counsel to allow the jury to hear that the police used a
            subjective, unreliable tool in their investigation.
            ....
            36. The testimony that the police used polygraphs in
            their investigation supported [Cortez]’s defense that
            the police investigation was inept because the jury
            could have concluded that the police used a subjective,
            unreliable investigative tool.
            ....
            39. [Cortez]’s counsel were aware that making
            objections to insignificant testimony can sometimes
            antagonize the jury and negatively affect the
            defendant.
            40. Since [Cortez] planned to testify at his trial, it was
            particularly reasonable for [Cortez]’s counsel to be
            concerned with how their objections would affect the
            jury’s view of [Cortez].
            41. It was reasonable for [Cortez]’s counsel to choose
            not to object to the inconsequential polygraph
            testimony, to avoid antagonizing the jury and
            negatively affecting [Cortez].
(citations omitted). The state habeas court went on to determine that Cortez’s
counsel were not deficient for failing to object to the testimony regarding James
Jones, Daniel Guajardo, and Eddie Williams having taken polygraph
examinations.
      Cortez has not established that the state court’s decision was contrary
to, or an unreasonable application of, clearly established federal law as
determined by the Supreme Court or based upon an unreasonable


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determination of the facts in light of the evidence presented. 2 “A conscious and
informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness.” Crane v. Johnson, 178
F.3d 309, 314 (5th Cir. 1999) (quoting Garland v. Maggio, 717 F.2d 199, 206
(5th Cir. 1983)).       We “must strongly presume that trial counsel rendered
adequate assistance and that the challenged conduct was the product of
reasoned trial strategy.” Pondexter, 537 F.3d at 519 (quoting Wilkerson v.
Collins, 950 F.2d 1054, 1065 (5th Cir. 1992)). The state court’s determination
that not objecting to the testimony regarding polygraph testing was strategy
is well supported by the record. 3            Indeed, we have previously noted that


       2  As part of Cortez’s failure-to-object argument before our court, he maintains that
counsel was ineffective for failing to file a motion in limine to exclude any reference to the
polygraph tests. The state court did not make any findings explicit to the failure to file a
motion in limine, perhaps because Cortez did not make this argument in his state habeas
proceedings. Accordingly, we do not construe his petition to be making this claim as a
standalone argument but rather as part of the overall picture. See 28 U.S.C. § 2254(b);
Nickleson v. Stephens, 803 F.3d 748, 752–54 (5th Cir. 2015).
        In any event, the claim fails. We have previously determined the failure to file a
motion in limine and the failure to object to the admission of the testimony was ineffective
assistance of counsel where defense counsel executed an affidavit that the failure was not
strategy and a “review of the record d[id] not provide a basis for failing to object.” See White
v. Thaler, 610 F.3d 890, 907–08 (5th Cir. 2010). Although Franklin testified that “the idea
that [Cortez’s attorneys] had some big strategy before the [polygraph] question was asked is
not true,” Cortez’s attorneys also testified that they were surprised by the question regarding
polygraph testimony and did not expect the question to be asked. In this vein, the Supreme
Court has stated “[j]ust as there is no expectation that competent counsel will be a flawless
strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack
of foresight or for failing to prepare for what appear to be remote possibilities.” Richter, 562
U.S. at 110. Accordingly, even if we were to address this claim as a standalone issue, Cortez
has failed to show that his counsel was deficient for failing to file a motion in limine regarding
inadmissible polygraph evidence. See Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011)
(holding that pre-trial motions in limine “were not feasible because counsel could not have
anticipated [inadmissible] testimony”); see also Dodson v. Stephens, 611 F. App’x 168, 175–
77 (5th Cir. 2015) (holding that it was “reasonable that [counsel] would not anticipate that
the prosecution would attempt to offer inadmissible [polygraph] evidence”).
       3 Cortez rests his failure-to-object argument in large part on this court’s opinion in
Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir. 1985), wherein we stated that “[t]o pass over
the admission of prejudicial and arguably inadmissible evidence may be strategic; to pass
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objecting to testimony may actually emphasize that testimony to the jury. See
Walker v. United States, 433 F.2d 306, 307 (5th Cir. 1970); see also Charles v.
Thaler, 629 F.3d 494, 502 (5th Cir. 2011). Applying this principle, we recently
rejected a claim that failing to object to testimony about polygraph testing
constituted ineffective assistance of counsel. See Dodson v. Stephens, 611 F.
App’x 168, 175–77 (5th Cir. 2015). 4 Cortez’s attempts to distinguish Dodson
are unpersuasive.         Although testimony regarding polygraph testing was
perhaps more prevalent in this case than it was in Dodson, that does not
change the fact that the state court determined that the decision not to object
constituted strategy. Indeed, here the state court determined that it was
strategy not only in terms of not emphasizing the testimony, but also to both
gain credibility with the jury in advance of Cortez’s own testimony and portray
the police investigation as inept for relying on inadmissible polygraph
evidence. Again, all of these determinations are supported by the record. At
bottom, the state court’s conclusion that counsel was not deficient is not
unreasonable.
       B. Prejudice
       Even assuming, arguendo, that the state habeas court unreasonably
applied the deficiency prong, we are not persuaded that it unreasonably


over the admission of prejudicial and clearly inadmissible evidence, as here, has no strategic
value.” As a preliminary matter, Lyons was pre-AEDPA and did not rely on the doubly
deferential standard applicable to this case. See Knowles v. Mirzayance, 556 U.S. 111, 123,
(2009). Moreover, for Cortez to obtain relief, the state court’s application of the law has to be
an unreasonable application of federal law as determined by the Supreme Court, not by this
court. See Parker v. Matthews, 132 S. Ct. 2148, 2155–56 (2012) (per curiam). Finally, the
defense counsel in Lyons failed to object to the admission of a prior conviction for the same
offense and the prosecutor’s reference of this prior conviction in closing argument to the effect
that “he has done this before.” 770 F.2d at 531–32, 534. No argument was made as to what
the strategy would or could be for such a decision. Id. By contrast, Cortez’s counsel chose
not to object as part of a larger strategy to portray the police investigation as inept and to
gain credibility with the jury prior to Cortez’s testimony.
       4Although Dodson is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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applied the prejudice prong. To establish prejudice, Cortez needed to show the
state court that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Pondexter, 537 F.3d at 520 (quoting Strickland, 466 U.S. at 694). “A reasonable
probability is a probability sufficient to undermine the confidence in the
outcome.” Id.
      Cortez encapsulated his prejudice argument in the following statement:
“the polygraph evidence was the linchpin that kept Williams’s testimony from
collapsing on its inconsistencies and simultaneously eroded the direct
confessions given by multiple other suspects.” In essence, Cortez maintains
that, but for the polygraph evidence, the excluded suspects who previously
confessed to the crime—specifically James Jones and Daniel Guajardo—would
have appeared credible and the State’s key witness, Eddie Williams, would not
have appeared credible, which would have raised reasonable doubt as to
Cortez’s involvement in the crime. Cortez’s argument goes directly to the
credibility of the excluded suspects and the State’s key witness.
      As to Jones and Guajardo, Cortez argues that “the only way the State
could exclude the multiple confessors/suspects was to present evidence of the
polygraph tests.” In support of this argument, Cortez points to two facts: (1)
the testimony at trial showed that the police made their final decision to
exclude both Jones and Guajardo after the polygraph tests and (2) the lack of
DNA evidence at the crime alone could not definitively exclude them.
      The state habeas court, however, found that neither Jones nor Guajardo
was credible. As to Jones, the state court found that the police could not
corroborate anything he said about the murders; he was excluded from the
DNA evidence found at the scene; he provided false information to the police;
he had no connection to significant aspects of the crime; he gained his
information about the murders from a search warrant affidavit, press releases,

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and information supplied by the police interviewers; and he was not credible
in his videotaped interviews with police. As to Guajardo, the state court found
that Guajardo gained his knowledge about the murders from media coverage
commemorating the one-year anniversary of the crime; provided false
information to the police; was excluded from the DNA evidence; had no
connection to significant aspects of the crime; and told conflicting versions of
the crime, which rendered his confession not credible.
      In light of this evidence, the state habeas court concluded that even
without the testimony about the polygraph tests, the jury would have found
that Jones and Guajardo were not involved in the murders. Cortez’s argument
to the contrary—without any attempt to attack the factual premises
underlying the state court’s credibility determinations—is not enough to
overcome the strong presumption of correctness afforded to state court
credibility determinations. See Kinsel v. Cain, 647 F.3d 265, 270 (5th Cir.
2011) (“[C]redibility determinations in particular are entitled to a strong
presumption of correctness.”).
      Cortez’s argument that Williams would not have appeared credible
absent the polygraph evidence fails for similar reasons.        Cortez points to
inconsistencies in Williams’s testimony, admissions from Williams that he
initially lied about various aspects of the crime, and testimony elicited at trial
showing that the police were “more certain of [Williams’s] involvement” after
a discussion with the person who administered Williams’s polygraph test.
      The state habeas court, however, found that Williams’s testimony about
the murders was credible and that it was corroborated by other evidence
linking Cortez to the murders. For instance, Cortez was the only suspect who
could not be excluded from the DNA found on latex glove pieces that had
broken off on duct tape wrapped around the victim’s face; a bullet from one of
the guns used in the crime was found in the ceiling of Cortez’s house; and the

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get-away vehicle was found across from an apartment where Cortez once lived.
In light of these factual findings, the state court concluded that even without
the polygraph evidence, the jury would have found Williams’s trial testimony
credible. This finding is consistent with the prosecution’s closing argument at
Cortez’s trial, which focused on the physical evidence corroborating Williams’s
testimony and said nothing about the polygraph evidence. We must give
deference to the trial court’s credibility determination in the face of conflicting
evidence that is not clear and convincing. See, e.g., Butler v. Stephens, 625 F.
App’x 641, 650 (5th Cir. 2015) (“[E]ven if we disagreed with the focus of the
trial court on some evidence over other evidence or might have made different
credibility determinations and findings, that disagreement would not be
sufficient to grant habeas relief . . . absent clear and convincing evidence to the
contrary of its factual findings.”), cert. denied, 136 S. Ct. 1656, reh’g denied,
137 S. Ct. 286 (2016). Cortez has not overcome this presumption.
      Accordingly, there is support in the record for the state court’s
determination that the polygraph evidence did not prejudice Cortez, and
Cortez fails to show that this determination was based on an unreasonable
view of the facts.
      AFFIRMED.




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