     Case: 12-70029      Document: 00512938936         Page: 1    Date Filed: 02/18/2015




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

                                      No. 12-70029                               FILED
                                                                          February 18, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
LICHO ESCAMILLA,

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-2248


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       After the district court denied Licho Escamilla’s petition for writ of
habeas corpus, Escamilla v. Thaler, No. 3:06-CV-2248-O, 2012 WL 1019605
(N.D. Tex. Mar. 26, 2012), we granted in part and denied in part his request
for a certificate of appealability (COA), granting a COA with regard to his claim
that his trial attorneys’ failure to investigate and present adequate mitigating
evidence at the penalty phase of his capital trial violated his Sixth Amendment

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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right to effective assistance of counsel. See Escamilla v. Stephens, 749 F.3d
380 (5th Cir. 2014). Upon considering oral arguments and further briefing, we
pretermit   the   issue   of   whether   defense    counsel    provided    deficient
representation under Strickland v. Washington, 466 U.S. 668 (1984), and
conclude that the state habeas court’s decision that Escamilla was not
prejudiced by counsel’s deficiencies was not objectively unreasonable in light
of clearly established federal law. We therefore affirm the district court’s
judgment denying Escamilla’s habeas petition.
                                             I.
                                             A.
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standards
to the state court’s decision as did the district court.” Lewis v. Thaler, 701 F.3d
783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004)). Our review is therefore governed by the standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified in
relevant part at 28 U.S.C. § 2254(d). See Miller v. Thaler, 714 F.3d 897, 901
(5th Cir. 2013); Druery v. Thaler, 647 F.3d 535, 538 (5th Cir. 2011). Under
§ 2254(d)(1), a state prisoner’s
      application for a writ of habeas corpus . . . shall not be granted with
      respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim: (1) 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[,] 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); Lewis, 701 F.3d at 788. “A state court decision is ‘contrary
to’ federal precedent if it applies a rule that contradicts the governing law set

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forth by the Supreme Court or if it involves a set of facts that are materially
indistinguishable from a Supreme Court decision but reaches a result different
from that Court’s precedent.” Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir.
2010).
      Accordingly, § 2254 creates a “highly deferential standard for evaluating
state court rulings, which demands that state-court decisions be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The
petitioner bears the burden of showing that “there was no reasonable basis for
the state court to deny relief.” Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
As the Supreme Court has recently reiterated:
      This standard . . . is difficult to meet. [C]learly established Federal
      law for purposes of § 2254(d)(1) includes only the holdings, as
      opposed to the dicta, of this Court’s decisions.               And an
      “unreasonable application of” those holdings must be objectively
      unreasonable, not merely wrong; even “clear error” will not suffice.
      Rather, [a]s a condition for obtaining habeas corpus from a federal
      court, a state prisoner must show that the state court’s ruling on
      the claim being presented in federal court was so lacking in
      justification that there was an error well understood and
      comprehended in existing law beyond any possibility for
      fairminded disagreement.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal citations and quotation
marks omitted).
                                        B.
      The Supreme Court has held that to establish a viable ineffective-
assistance-of-counsel claim the petitioner must demonstrate both that
“counsel’s performance was deficient[,] . . . [meaning] counsel’s representation
fell below an objective standard of reasonableness,” and that “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687-88. To
establish prejudice, a petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
      Applying the Strickland two-part test, the Court has found that a failure
to reasonably investigate and present mitigating evidence to a sentencing jury,
when such evidence would have been uncovered by a reasonably competent
defense attorney, amounts to ineffective assistance of counsel.          See, e.g.,
Williams v. Taylor, 529 U.S. 362, 395 (2000) (finding that by declining to
pursue possible witnesses, neglecting to prepare a mitigation defense until one
week before trial, and failing to discover readily available documentary
evidence, Williams’s trial attorney performed deficiently under Strickland, and
that such deficiency prejudiced the petitioner); Wiggins v. Smith, 539 U.S. 510
(2003) (holding that a failure to investigate a capital defendant’s social history
and consequent failure to present mitigating evidence regarding the
defendant’s history of sexual abuse and other traumatic childhood events,
amounted to a violation of the defendant’s Sixth Amendment right to effective
assistance of counsel).
      In conducting the Strickland prejudice analysis in this context, the Court
has explained that we must consider both the “newly uncovered evidence”
presented to the state habeas court, “along with mitigating evidence
introduced during [the petitioner’s] penalty phase trial, to assess whether
there is a reasonable probability that [the petitioner] would have received a
different sentence after a constitutionally sufficient mitigation investigation.”
Sears v. Upton, 561 U.S. 945, 956 (2010). After “compar[ing] the evidence
actually presented at sentencing with any additional mitigating evidence
presented in the habeas proceeding[,]” we inquire as to “whether under the
applicable state capital sentencing statute, the additional mitigating evidence
[is] so compelling that there [is] a reasonable probability that at least one juror


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could have determined that because of the defendant’s reduced culpability,
death [is] not an appropriate sentence.” Ruiz v. Stephens, 728 F.3d 416, 424
(5th Cir. 2013) (internal quotation marks and footnote omitted). In so doing,
we consider all evidence presented to the state habeas court, without limiting
our analysis to evidence that would have been admitted under Texas
evidentiary rules. 1 Id. at 424-25. Considering the totality of the evidence, we
then must determine whether the state habeas court’s decision regarding
prejudice was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Woodall, 134 S. Ct. at 1702.
                                             II.
       We incorporate by reference the factual and procedural background
detailed in our opinion granting in part Escamilla’s COA. See Escamilla, 749
F.3d at 383-86.       For the reasons that follow, we pretermit the deficiency
inquiry 2 and conclude that the state habeas court’s determination that
Escamilla failed to establish that he was prejudiced by his trial attorneys’
alleged deficiencies was not an unreasonable application of clearly established


       1  The state argues that the bulk of the evidence presented to the state habeas court
constituted inadmissible hearsay evidence that is “unsourced” and thus Escamilla cannot use
this evidence to support a finding of prejudice. The state’s suggestion that this court may not
consider hearsay evidence disregards Fifth Circuit precedent to the contrary. Recently, this
court has explained that “in assessing prejudice, ‘we need not . . . make the state-law
evidentiary findings that would have been at issue at sentencing.’ Consequently, we conduct
our analysis by ‘evaluat[ing] the totality of the evidence—both that adduced at trial, and the
evidence adduced in the habeas proceedings.’” Ruiz, 728 F.3d at 424-25; see also Sears, 561
U.S. at 950 n.6 (“[W]e have ... recognized that reliable hearsay evidence that is relevant to a
capital defendant’s mitigation defense should not be excluded by rote application of a state
hearsay rule.”). Accordingly, our inquiry will include consideration of all of the evidence
presented to the state habeas court, regardless of whether such evidence would be admissible
at a trial in Texas state court.
       2See Amador v. Quarterman, 458 F.3d 397, 412 (5th Cir. 2006) (citing Strickland, 466
U.S. at 697); United States v. Pierce, 959 F.2d 1297, 1302 (5th Cir. 1992) (“An insufficient
showing of prejudice pretermits addressing the adequacy prong.”).
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law and, therefore, under AEDPA, the state habeas court’s judgment must be
upheld. See, e.g., Visciotti, 537 U.S. at 26-27 (finding that habeas relief is “not
permissible under § 2254(d)” unless the state-court decision is objectively
unreasonable, even if a “federal habeas court . . . , in its independent judgment,
[would find that] the state-court decision applied Strickland incorrectly”).
      We assume without deciding that Escamilla’s trial attorneys provided
deficient representation during the investigation and presentation of his
mitigation case at sentencing. See Strickland, 466 U.S. at 697 (instructing that
we “need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies”).   We therefore proceed directly to the prejudice inquiry,
comparing the mitigating evidence—both the evidence that trial counsel
presented to the sentencing jury and the evidence presented to the state
habeas court—to the aggravating evidence to determine whether the state
habeas court unreasonably determined that Escamilla failed to present “a
reasonable probability that, absent the error, the sentencer would have
concluded that the balance of aggravating and mitigating circumstances did
not warrant death.” Sonnier v. Quarterman, 476 F.3d 349, 356-57 (5th Cir.
2007) (citing Strickland, 466 U.S. at 695).
      We begin with an analysis of the mitigating evidence adduced during the
penalty phase of trial. The sentencing jury heard evidence that Escamilla was
a “pretty normal” kid until age eleven, when his older brother was arrested
and detained after retaliating against two men who had assaulted Escamilla,
and Escamilla consequently felt severe guilt for his brother’s incarceration and
the resulting hardship on the family. The jurors also learned of Escamilla’s
loving relationship with his mother who passed away while he was confined at
a youth detention facility, and of the change in Escamilla’s behavior after his


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mother’s death. An old childhood friend of Escamilla’s also testified that he
used to get into “mischief” and smoke marijuana with Escamilla and his
brother. Additionally, the jury heard from Escamilla’s father that he and his
late wife provided ample advice to Escamilla and did everything they could,
but Escamilla failed to heed this advice. In summation, the jurors heard pleas
from defense counsel to consider the severity of a life sentence and to carefully
follow the jury charge. Counsel also reminded the jurors that after Escamilla’s
mother’s death, he began to drink alcohol more frequently, and that the two
dangerous “ingredients” that contributed to his criminality—alcohol and
weapons—would not be available to him in prison. The state used some of the
defense’s mitigating evidence to advocate for the death penalty—urging the
jurors to consider that Escamilla had a “pretty normal” childhood, had
supportive, loving parents, experienced “no disadvantages” in his background,
and yet chose a life of crime.
      Post-conviction counsel hired a mitigation investigator who uncovered
detailed evidence regarding Escamilla’s troubled childhood that, in part, was
inconsistent with the depiction of Escamilla’s upbringing that was presented
to the sentencing jury. Escamilla’s state habeas petition included various
affidavits and exhibits that together portrayed a troublesome social and family
history, including evidence that (1) Escamilla’s father abused alcohol,
physically assaulted his wife, and sometimes hit the children with a belt or his
bare hands; (2) Escamilla and his siblings witnessed their father’s physical
abuse of their mother; (3) Escamilla and his older brothers were involved with
a gang from an early age and all sold and used drugs; (4) from a very young
age, Escamilla admired his older brother’s gang involvement; (5) Escamilla
began using marijuana and alcohol at a very early age, later severely abused
alcohol and smoked marijuana, and was unable to access recommended


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substance abuse treatment; and (6) members of Escamilla’s immediate and
extended family have significant criminal history records. The sentencing jury
had heard some of this evidence such as Escamilla’s use of alcohol and
marijuana at a young age. The state habeas attorneys’ investigation revealed,
however, that the sentencing jurors were not presented with evidence
regarding the extent of Escamilla’s substance abuse or the nature of his
upbringing that included familial violence and gang involvement.
      On the aggravating side of the scale, the sentencing jury was presented
with evidence that Escamilla, while fleeing from a gun fight with police,
stopped over a fallen police officer, Christopher James, to fire deadly shots into
his head, at close range. Thereafter, Escamilla bragged about shooting the
officer, and publicly admitted to killing the officer during a television
interview. In addition, the sentencing jury was presented with evidence that
shortly before the murder of Officer James, Escamilla fatally shot another man
in his neighborhood, Michael Torres.         The state additionally presented
evidence that from a young age, Escamilla engaged in violent or reckless
criminal activity—including two high speed police chases and a physical
assault of an Assistant Principal. The state habeas court, looking to this
aggravating evidence, reasoned that the mitigating evidence was unlikely to
“tip the scales” in Escamilla’s favor.
      The mitigating evidence presented to the state habeas court is
compelling and “might well have helped the jury understand [Escamilla], and
his horrendous acts—especially in light of the purportedly stable upbringing”
that the sentencing jury was presented with at the penalty phase of Escamilla’s
trial. Sears, 561 U.S. at 947. However, weighing the substantial aggravating
evidence against the totality of the mitigating evidence here, we cannot
conclude that the state habeas court made an “error beyond any possibility for


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fairminded disagreement,” Woodall, 134 S. Ct. at 1702, when it held that
Escamilla failed to demonstrate that, but for counsel’s alleged errors, there is
a reasonable probability of a different outcome. See Strickland, 466 U.S. at
694.
        “Our conclusion in this regard is illumined, although not necessarily
controlled by, a comparison with cases in which the Supreme Court determined
whether there was a reasonable probability that the trial attorneys’ failure to
discover and present mitigation evidence had affected the outcome of the
sentencing proceedings.” Sonnier, 476 F.3d at 360. For example, in Wiggins
v. Smith, the only evidence that Wiggins’s trial attorney presented to the
sentencing jury was Wiggins’s lack of prior criminal history. 539 U.S. at 537.
Comparatively, post-conviction counsel uncovered evidence of sexual abuse,
rape, physical abuse, homelessness, as well as an “alcoholic, absentee mother,”
and evidence that Wiggins had “diminished mental capacities.” Id. at 535. The
Court found that in light of the mitigating evidence uncovered in post-
conviction proceedings that was never presented to the sentencing jury, “there
is a reasonable probability that at least one juror would have struck a different
balance.” Id. at 537. Similarly, in Rompilla v. Beard, the Court found that the
petitioner was prejudiced by his trial attorney’s failure to review the
prosecution’s case file which contained readily identifiable “red flags” that
would have led reasonably competent counsel to investigate further and likely
discover evidence of Rompilla’s “organic brain damage[] an[d] extreme mental
disturbance significantly impairing several of his cognitive functions[,] [which]
relate back to his childhood, and were likely caused by fetal alcohol syndrome.”
545 U.S. 374, 392 (2005). Rompilla’s school records additionally revealed that
his “IQ was in the mentally retarded range.” Id. at 393. Post-conviction
counsel additionally uncovered evidence that Rompilla and his siblings were


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subject to extremely severe disciplinary tactics from an abusive father,
including, for example, being locked in a “small wire mesh dog pen that was
filthy and excrement filled.” Id. at 391-92. Rompilla and his siblings “had no
indoor plumbing in the house, . . . slept in the attic with no heat, and . . . were
not given clothes and attended school in rags.” Id. at 392.
      Although, as the Supreme Court has explained, “§ 2254(d)(1) [does not]
require an ‘identical factual pattern before a legal rule must be applied,’”
Woodall, 134 S. Ct. at 1706 (quoting Panetti v. Quarterman, 551 U.S. 930, 953
(2007)), the distinction between Escamilla’s case and the extreme facts
involved in Wiggins and Rompilla supports our conclusion that the state
habeas court’s error, if any, cannot be said to be “so obvious . . . that there could
be no ‘fairminded disagreement’ on the question.” Id. at 1706-07. The state
habeas court therefore did not unreasonably apply federal law in concluding
that the substantial aggravating evidence here outweighed the mitigating
evidence uncovered by post-conviction counsel.
                                 CONCLUSION
      The state habeas court’s denial of Escamilla’s Sixth Amendment
ineffective-assistance-of-counsel claims was not an unreasonable application of
clearly established federal law as determined by the Supreme Court. We
therefore AFFIRM the district court’s denial of Escamilla’s habeas petition.




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