     Case: 15-70018      Document: 00513287716         Page: 1    Date Filed: 11/30/2015




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

                                      No. 15-70018                                 FILED
                                                                           November 30, 2015
                                                                              Lyle W. Cayce
ALVIN AVON BRAZIEL, JR.,                                                           Clerk

                                                 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. 3:09-CV-1591


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       In 1993, Douglas White was robbed and murdered; his wife, Lora, was
also brutally raped during the same incident, but she survived. The crime
remained unsolved for several years until petitioner Alvin Avon Braziel, Jr.
was arrested for an unrelated crime, and his DNA was linked to the White
murder.     In 2001, Braziel was tried for capital murder, convicted, and
sentenced to death. He now petitions this court for a certificate of appealability


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-70018
(“COA”) limited to the issue of the correctness of the district court’s ruling that
his claim of ineffective assistance of counsel (“IAC”) for failure to investigate
and present mitigating evidence during the sentencing phase was procedurally
defaulted (the district court alternatively denied relief on the merits). To
obtain a COA on a claim found procedurally defaulted, Braziel must show that
jurists of reason would debate the correctness of the district court’s procedural
ruling and that his petition sets forth a valid underlying claim of a denial of a
federal constitutional right. Slack v. McDaniel, 529 U.S. 473, 478 (2000).
Applying well-settled standards for determining COA applications in death
penalty cases, we DENY Braziel’s COA application.
         We are mindful that our inquiry is a threshold one; we do not adjudicate
the merits of the parties’ arguments. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). Further, any doubts about the issuance of a COA in a death penalty
case should be resolved in favor of granting it. Gomez v. Quarterman, 529 F.3d
322, 326 (5th Cir. 2008). At the same time, we have a task to do that requires
assessment of whether the applicant’s claim “deserve[s] encouragement to
proceed further.” Slack, 529 U.S. at 484.
         Braziel concedes that he did not exhaust the particular IAC claim at
issue here. Ordinarily, that concession would be fatal to his claim. 28 U.S.C.
§ 2254(b). However, Braziel contends that jurists of reason would debate
whether he has shown cause and prejudice to excuse the procedural default
due to the alleged ineffectiveness of state habeas counsel, citing Martinez v.
Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013).
Simply stated, these cases hold that if the failure to raise a meritorious claim
of trial counsel IAC in the state habeas proceeding was due to the IAC of state
habeas counsel, then the procedural default is not a bar to proceeding in federal
court.


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                                 No. 15-70018
      IAC claims are judged under the standards set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). That case requires a showing that
counsel’s performance was deficient and that such deficiency prejudiced the
defendant. Id. The law accords deference to strategic choices made by counsel
following a “reasonable” investigation and informed decision not to pursue
other avenues. Wiggins v. Smith, 539 U.S. 510, 522–23 (2003); see also Allen
v. Stephens, 2015 U.S. App. LEXIS 19525, at *41–43 (5th Cir. Nov. 9, 2015)
(No. 14-70017) (Strickland review is highly deferential to counsel’s strategic
decisions).
      With these general standards in mind, we turn to Braziel’s case.
Following his unsuccessful state habeas case, he filed a federal petition.
Braziel contended that trial counsel should have presented as mitigating
evidence his “poor educational and work history, that he suffered a head injury
as a child, resulting in hospitalization, that he was physically abused by his
stepfather, and that there was a history of mental illness in his family.”
Braziel v. Stephens, No. 3:09-CV-01591, 2015 U.S. Dist. LEXIS 69571, at *14
(N.D. Tex. May 28, 2015). The timeframe of his federal case overlapped with
the development of the law in Martinez and Trevino.          After Trevino was
decided, the district court conducted an evidentiary hearing on the issue of
state habeas counsel’s effectiveness. Following that hearing and briefing by
the parties, the district court found “that Braziel has not shown that this claim
comes within an exception to [the] procedural bar.” Id. at *11. The district
court noted that Braziel conceded that his claim would be procedurally barred
but for the Martinez/Trevino exception. Id. at *13. The court explained that
Braziel had to demonstrate that his constitutional claim was “substantial” and
that his state habeas counsel’s ineffectiveness was the reason the claim was
not presented to the state court. Id. at *14. The district court concluded that
Braziel failed on both counts. Id. at *28–29. The court thus concluded in the
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alternative that even if the claim were not procedurally barred, it should be
denied on the merits. Id.
       In deciding this issue, the district court considered exhibits and the
evidence at the evidentiary hearing. 1 The district court found that the state
trial court had appointed qualified trial counsel with death penalty experience
who used a qualified investigator. Id. at *17. In turn, counsel found evidence
of a childhood brain injury. Braziel termed this evidence “B.S.” and refused to
be examined by a mental health expert. Id. at *18. Over Braziel’s objection,
his counsel sought out family members who were also hostile and
uncooperative. Id. at *19–20. 2 “Trial counsel diligently sought to investigate
and present a mitigation case at trial, and attempted to obtain evidence of
Braziel’s family history and any mental health problems and abuse that may
have existed, but were prevented from doing so because of the refusal of Braziel
and his family to cooperate with their efforts.” Id. at *21. Counsel thus
pursued an (ultimately unsuccessful) alternative strategy of bringing parents
of Braziel’s friend to testify that he was a good person whom they trusted to
have in their house. Id. at *20. The district court concluded that Braziel’s
claim that trial counsel should have sought funding for a mental health expert
was belied by the fact that his current counsel also has not requested such
funding. Id. at *21. Even at this late date, the district court concluded there


1 Braziel criticizes the district court for limiting the presentation of live witnesses but then
excluding the affidavit of his investigator, Amanda Maxwell, as hearsay.                     This
characterization of the district court’s ruling is inaccurate. The district court did not exclude
the affidavit itself as hearsay but rather denied admission because Maxwell’s statements
were based entirely on hearsay offered to prove the truth of the matters therein stating: “The
investigator, Ms. Maxwell, is stating as facts what she learned from conversations with the
petitioner’s family, for example, and those are being offered as truthful, accurate statements.”
Thus, even if Maxwell had testified live this problem would have been presented.
2For example, trial counsel testified that Braziel’s sister indicated that she would get on the
stand at the punishment phase and “tell the jury that they were a bunch of jerks, and we
didn’t feel like that that was going to help him at all.”
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                                  No. 15-70018
was nothing to show “whether such testimony would have been favorable to
Braziel.” Id. The district court concluded that trial counsel was not ineffective.
      Similarly, the district court found that state habeas counsel was
qualified and that state habeas counsel also attempted to investigate Braziel’s
mental health but was again stymied by his refusal to cooperate. Id. at *22.
Although an earlier draft contained a “failure-to-present-mitigation-evidence”
IAC claim, the final version of the state habeas petition did not include this
claim. Due to passage of time, state habeas counsel testified that he could not
remember why he did not include the claim but it could be that he did not have
the evidence to support it. “Despite having the file of state habeas counsel,
Braziel has not shown that such counsel had the information [necessary to
support the failure to present mitigation evidence claim] and that the claim
was omitted by error. In fact, federal habeas counsel still does not have the
evidence necessary to prove this claim.” Id. at *24–25 n.7. The district court
concluded that state habeas was not ineffective. Id. at *27–28.
      While having an intransigent client does not excuse counsel from
investigating, Rompilla v. Beard, 545 U.S. 374, 381, 385 (2005), the
defendant’s conduct has a bearing on the reasonableness of the investigation.
See Schriro v. Landrigan, 550 U.S. 465, 466–67 (2007) (clients’ roadblocks to
discovery of mitigating evidence are relevant to determination of IAC); Mays
v. Stephens, 757 F.3d 211, 215–16 (5th Cir. 2014) (defendant could not fault
counsel for failing to obtain his cooperation in mental health testing), cert.
denied, 135 S. Ct. 951 (2015); Sonnier v. Quarterman, 476 F.3d 349, 362 (5th
Cir. 2007) (where defendant prevents counsel from obtaining mitigating
evidence, he cannot claim IAC on that basis). Also, counsel is not required to
pursue fruitless leads. See Beatty v. Stephens, 759 F.3d 455, 467 (5th Cir. 2014)
(denying COA on claim that counsel should have discovered and presented
more evidence of victim’s abusive behavior and personality), cert. denied, 135
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S. Ct. 2312 (2015); Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (failure
to investigate claim requires showing of how investigation would have altered
the outcome). Here, the district court concluded that the investigation by both
trial counsel and state habeas counsel was adequate and further, that even
now, the evidence is insufficient to support an IAC claim based upon lack of
mitigation evidence.
      We conclude that jurists of reason would not debate the correctness of
the district court’s rulings in this regard. Thus, we conclude that Braziel’s sole
issue does not “deserve encouragement to proceed further.” Slack, 529 U.S. at
484. His application for a COA is DENIED.




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