     Case: 13-70014       Document: 00512572256        Page: 1    Date Filed: 03/25/2014




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

                                                                                 FILED
                                                                           March 25, 2014
                                      No. 13-70014
                                                                            Lyle W. Cayce
                                                                                 Clerk


CHRISTOPHER CHUBASCO WILKINS,

                                                 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. 4:12-CV-270



Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM: *
           Petitioner Christopher Chubasco Wilkins (“Wilkins”) seeks a certificate
of appealability (“COA”) to prosecute his application for habeas corpus
challenging the constitutionality of his Texas state court death sentence.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-70014       Document: 00512572256   Page: 2   Date Filed: 03/25/2014




                                  No. 13-70014

Wilkins was denied relief on direct appeal, in his initial state habeas corpus
proceedings, and finally by the district court. For the reasons set out below, we
now DENY Wilkins’s motion for a COA and AFFIRM the district court’s denial
of additional funding.
                                        I.
      The facts underlying Wilkins’s conviction are not in dispute. The Court
of Criminal Appeals of Texas (“TCCA”) set forth the facts leading to Wilkins’s
capital murder conviction as follows:
      [Petitioner] gave statements to authorities that described his
      murders of Willie Freeman and Mike Silva. Freeman was a
      homeless man who lived in Fort Worth. Silva lived outside Fort
      Worth, but traveled into the city to purchase drugs. Freeman
      would show Silva where to buy drugs, and Silva would share his
      purchases with Freeman.

      In October 2005, [petitioner] left a halfway house in Houston, stole
      a truck, and drove to Fort Worth. [Petitioner] happened upon
      Freeman, who offered to sell him some drugs. But Freeman and
      his supplier tricked [petitioner] into buying a piece of gravel
      instead of a rock of cocaine. The men took $20 from [petitioner] and
      laughed at him. So [petitioner] decided to kill Freeman.

      Over the next few weeks, Freeman and [petitioner] used drugs
      together. Freeman apologized for stealing from [petitioner] and
      gave him some drugs to make up for it.

      On October 27, 2005, [petitioner] told Freeman that he had some
      guns and drugs stashed on the west side of Fort Worth. Silva
      agreed to drive Freeman and [petitioner] in Silva’s vehicle. From
      the back seat, [petitioner] directed Silva to an area on the west side
      of Fort Worth. When they arrived at a deserted stretch of road,
      [petitioner] shot Freeman in the back of the head. Silva stopped
      the vehicle and tried to escape, but he got caught in his seatbelt.
                                        2
     Case: 13-70014      Document: 00512572256         Page: 3    Date Filed: 03/25/2014



                                     No. 13-70014

       [Petitioner] shot him once in the neck and twice in the head.
       [Petitioner] then climbed into the driver’s seat and began driving
       with Silva’s body hanging outside of the vehicle, still entangled in
       his seatbelt. [Petitioner] finally cut the seatbelt to remove Silva,
       and dumped the victims’ bodies in a ditch at the side of the road.

       About a week later, after two high-speed police chases, Silva’s
       vehicle was recovered, and [petitioner] was apprehended. 1


       Wilkins was subsequently indicted for the murders of Freeman and
Silva. In March 2008, a jury found Wilkins guilty of the murders and sentenced
him to death. The TCCA affirmed his conviction and sentence on direct
appeal. 2 The United States Supreme Court denied certiorari. 3 While his direct
appeal was pending before the TCCA, Wilkins filed a state application for a
writ of habeas corpus in the trial court, raising eighteen claims for relief. The
trial court, in its findings of fact and conclusions of law, recommended to the
TCCA that relief be denied. Based on the trial court’s findings and conclusions,
the TCCA denied Wilkins’s application for relief. 4
       Wilkins filed his federal petition for habeas corpus in May 2012. Three
weeks prior to filing his petition, Wilkins submitted an ex parte motion to the
district court, seeking nearly $92,000 in funding to pay for a fact investigator,
a mitigation specialist, a neuropsychologist, and a prison expert to help develop
his claims for relief. The district court denied the motion, stating that the
funding was not “reasonably necessary for the representation of petitioner in
this 28 U.S.C. § 2254 proceeding.”



1 Wilkins v. State, No. 75,858 2010 WL 4117677, at *1 (Tex. Crim. App. Oct. 20, 2010).
2 See id.
3 See Wilkins v. Texas, 131 S. Ct. 2901 (2011).
4 See Ex parte Wilkins, No. 75,229–01, 2011 WL 334213 (Tex. Crim. App. Feb. 2, 2011).

                                            3
     Case: 13-70014       Document: 00512572256          Page: 4     Date Filed: 03/25/2014



                                       No. 13-70014

       Wilkins alleged twenty-one grounds for relief in his federal habeas
petition, all of which were denied by the district court. The district court denied
his first eleven claims as procedurally defaulted under Coleman v. Thompson 5
because Wilkins failed to exhaust those claims in state court. 6 Wilkins now
asks this court for a certificate of appealability as to eight of his claims for
ineffective assistance of trial counsel which the district court denied as
procedurally defaulted. 7
                                              II.
       Before a federal habeas petitioner can appeal the district court’s denial
of his petition, he must first obtain a certificate of appealability (“COA”). 8 To
obtain a COA, the petitioner must make “a substantial showing of the denial
of a constitutional right.” 9 “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.” 10 However, when the district court denies a habeas
petition on procedural grounds, a COA should only issue if “the prisoner shows,

5 501 U.S. 722 (1991).
6 The district court also found, alternatively, that Wilkins’s unexhausted claims for relief
numbers 1–7 and 10, all of which alleged ineffective assistance of trial counsel, would fail on
the merits should the Supreme Court decide that its holding in Martinez v. Ryan, 132 S. Ct.
1309 (2012), which carved out an exception to the rule in Coleman, also applied to cases
arising out of Texas courts. At the time the district court issued its order denying Wilkins’s
petition for relief, the Supreme Court had granted a writ of certiorari in Trevino v. Thaler,
133 S. Ct. 524 (2012), to address the question of whether the exception to the procedural bar
created in Martinez applies to cases arising out of Texas state courts. Subsequently, the
Supreme Court issued its opinion in Trevino answering that question in the affirmative. See
133 S. Ct. 1911 (2013).
7 Wilkins takes no appeal of the district court’s denial of his other claims for relief.
8 See 28 U.S.C. § 2253(c).
9 See id. § 2253(c)(2).
10 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                              4
     Case: 13-70014       Document: 00512572256         Page: 5     Date Filed: 03/25/2014



                                       No. 13-70014

at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.” 11
       In reviewing Wilkins’s request for a COA, we conduct only a threshold
inquiry into the merits of the claims he raised in his underlying habeas
petition. 12 “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.” 13 In death penalty cases, “any doubts as to whether a COA should
issue must be resolved in [the petitioner’s] favor.” 14
       Because no COA is necessary to appeal the district court’s denial of funds
to a habeas petitioner, we review that portion of the district court’s order for
abuse of discretion. 15
                                             III.
       Wilkins argues that the district court erred in denying habeas relief on
his unexhausted claims; he asserts that he demonstrated cause and prejudice
that excused his failure to exhaust and seeks a COA to challenge that
determination.
       Relying on Maples v. Thomas, 16 he argues first that his state habeas
counsel Jack Strickland essentially abandoned him by failing to pursue valid
claims for relief.


11 Id. (emphasis added).
12 See Miller–El v. Cockrell, 537 U.S. 322, 336 (2003).
13 Id.
14 Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (alteration in original) (citation and

internal quotation marks omitted).
15 See Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005).
16 132 S. Ct. 912 (2012).

                                              5
     Case: 13-70014       Document: 00512572256         Page: 6    Date Filed: 03/25/2014



                                      No. 13-70014

       He argues next that he demonstrated cause to excuse his failure to raise
a number of ineffective assistance of trial counsel (“IATC”) claims, pursuant to
Martinez v. Ryan 17 and Trevino v. Thaler. 18
       A state prisoner’s claims for habeas corpus relief may not be entertained
by a federal court “when (1) ‘a state court [has] declined to address [those]
claims because the prisoner had failed to meet a state procedural requirement,’
and (2) ‘the state judgment rests on independent and adequate state
procedural grounds.’” 19 However, “[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice from a violation
of federal law.” 20 There is no dispute that the Texas Code of Criminal
Procedure’s bar on successive state court applications for habeas relief is an
independent and adequate state ground. 21
                                    A. Maples Claim
       Wilkins first argues he has cause to excuse his procedural bar under
Maples v. Thomas because his state habeas counsel, Jack Strickland
(“Strickland”), abandoned him during state habeas proceedings.
       A federal habeas petitioner is ordinarily bound by his attorney’s
negligence because the attorney and the client have an agency relationship
under which the principal is bound by the actions of the agent. 22 However, an


17 132 S. Ct. 1309 (2012).
18 133 S. Ct. 1911 (2013).
19 Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (first alteration in original) (quoting

Coleman, 501 U.S. at 729–30).
20 Martinez, 132 S. Ct. at 1316 (citing Coleman, 501 U.S. at 750).
21 See Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a); see also Balentine v. Thaler, 626 F.3d

842, 857 (5th Cir. 2010) (recognizing that Section 5 is an independent and adequate state law
ground for rejecting a claim).
22 See Coleman, 501 U.S. at 753 (“Attorney ignorance or inadvertence is not ‘cause’ because

the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the
litigation, and the petitioner must ‘bear the risk of attorney error.’” (citation omitted)).
                                             6
     Case: 13-70014      Document: 00512572256         Page: 7      Date Filed: 03/25/2014



                                      No. 13-70014

attorney who “abandons his client without notice . . . sever[s] the principal-
agent relationship” and “no longer acts, or fails to act, as the client’s
representative.” 23 In Maples, the Supreme Court held that this sort of complete
attorney     abandonment        can    constitute     the    kind     of   “extraordinary
circumstances” necessary to supply cause for a procedural default. 24
       In Maples, the petitioner’s pro bono counsel, two attorneys in a large New
York law firm, left the firm months before the state procedural default
occurred, and, unbeknownst to the petitioner, no other lawyer was serving as
the petitioner’s agent in any meaningful sense of the word. 25 Consequently, the
petitioner was “left without any functioning attorney of record.” 26 The
petitioner failed to timely appeal the denial of his state post-conviction petition
in state court because he was not notified of the denial until the time to appeal
had lapsed. 27
       The instant case and Maples are distinguishable. Wilkins asserts he was
abandoned by Strickland because Strickland worked under multiple conflicts
of interest arising out of professional relationships with counsel at trial and
direct appeal, as well as the court. As a result of these conflicts, Wilkins argues
Strickland refused to investigate and raise any IATC claims, and failed to hire
a psychologist or mitigation specialist, contrary to Wilkins’s desires. 28 We have
previously noted that counsel’s failure to raise all issues a petitioner would like



23 Maples, 132 S. Ct. at 922–23 (citation omitted).
24 Id. at 924.
25 See id. at 924–27.
26 Id. at 927.
27 Id. at 920.
28 Wilkins brought this claim before the district court, which quickly rejected his argument

in a footnote, stating that “Maples simply would not apply to this case even if petitioner’s
state habeas counsel had not performed properly.”
                                             7
     Case: 13-70014        Document: 00512572256          Page: 8     Date Filed: 03/25/2014



                                        No. 13-70014

to argue does not amount to abandonment. 29 Moreover, the record indicates
that, unlike counsel in Maples, Strickland never missed a filing deadline and
filed a lengthy petition which raised eighteen points of error on Wilkins’s
behalf. The record reflects that Strickland actively represented petitioner and,
unlike counsel in Maples, did not abandon his client. Maples has no application
in this case.
                              B. Martinez–Trevino Claims
       Next, Wilkins argues that Strickland’s performance as state habeas
counsel was ineffective because he failed to raise any IATC claims, constituting
cause to excuse Wilkins’s procedural default for failure to exhaust those claims
under Martinez v. Ryan and Trevino v. Thaler. 30
       In Martinez, the Supreme Court held that a petitioner may establish
cause to excuse a procedural default as to an IATC claim by showing that (1)
his state habeas counsel was constitutionally deficient in failing to include an
IATC claim in his first state habeas application; and (2) the underlying IATC
claim is “substantial.” 31 For a claim to be “substantial,” a “prisoner must
demonstrate that the claim has some merit.” 32 Conversely, an “insubstantial”
IATC claim is one that “does not have any merit” or that is “wholly without


29 See Ibarra v. Thaler, 691 F.3d 677, 685 n.1 (5th Cir. 2012).
30 Wilkins alleges eight IATC claims in his petition: 1) that trial counsel failed to conduct an
adequate pretrial mitigation investigation; 2) that he was denied his right to unconflicted
counsel; 3) that he was denied counsel at a critical stage of the proceeding; 4) that counsel
was ineffective for proceeding to trial even though Wilkins desired to plead guilty; 5) that
counsel was ineffective for failing to raise the issue of Wilkins’s competency to stand trial; 6)
that counsel failed to conduct a reasonable pretrial investigation; 7) that counsel was
ineffective for failing to strike certain members of the jury venire who were biased; and 8)
that counsel was ineffective for failing to object to “excessive and prejudicial” security
measures imposed by the court during the sentencing phase of trial.
31 132 S. Ct. at 1318.
32 Id.

                                               8
     Case: 13-70014       Document: 00512572256        Page: 9   Date Filed: 03/25/2014



                                        No. 13-70014

factual support.” 33 The Martinez Court reasoned that when inmates can only
raise IATC claims under Strickland v. Washington 34 on state habeas review, a
state habeas attorney’s deficient performance may forgive a federal procedural
bar. 35 Subsequently, this court held in Ibarra v. Thaler that Martinez did not
apply to federal habeas cases arising from Texas convictions and that Texas
inmates were “not entitled to the benefit of Martinez for . . . ineffectiveness
claims” because Texas inmates are not limited to raising Strickland claims in
initial collateral review proceedings. 36 In Trevino, the Supreme Court decided
that Martinez does apply to cases which originated in Texas courts because
“the Texas procedural system—as a matter of its structure, design, and
operation—does not offer most defendants a meaningful opportunity to present
a claim of ineffective assistance of trial counsel on direct appeal.” 37
       The district court issued its order denying Wilkins’s petition for habeas
relief before the Supreme Court handed down its decision in Trevino. It denied
Wilkins’s IATC claims as procedurally barred because, at the time, this court’s
opinion in Ibarra controlled. In that case we determined that Martinez did not
apply to petitions challenging Texas convictions. However, the district court
also acknowledged the pendency of Trevino in the Supreme Court, and made
the alternative holding that, even if Martinez did apply to Wilkins’s claims for
ineffective assistance, such claims would nevertheless fail on their merits. The
district court’s reliance on Ibarra is therefore incorrect following Trevino, and
its procedural ruling is, at the very least, debatable. However, to obtain a COA


33 Id. at 1319.
34 466 U.S. 668 (1984).
35 Martinez, 132 S. Ct. at 1320.
36 687 F.3d 222, 227 (5th Cir. 2012).
37 133 S. Ct. at 1921.

                                             9
     Case: 13-70014      Document: 00512572256          Page: 10     Date Filed: 03/25/2014



                                       No. 13-70014

Wilkins must still demonstrate that reasonable jurists would debate “whether
the petition states a valid claim of the denial of a constitutional right.” 38 This
in turn required Wilkins to make a substantial showing that he was denied
effective assistance of trial counsel under Strickland.
       Ineffective assistance of counsel claims are governed by the standard laid
out in Strickland. “First, the defendant must show that counsel’s performance
was deficient.” 39 “Second, the defendant must show that the deficient
performance prejudiced the defense.” 40 To show deficient performance, “the
defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” 41 To demonstrate prejudice, a petitioner “must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” 42 “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.” 43
     Concluding that Wilkins has failed to state any substantial IATC claims,
we deny a COA. We address each of his eight claims below. 44


38 Reed v. Stephens, 739 F.3d 753, 774 (5th Cir. 2014) (quoting Slack v. McDaniel, 529 U.S.
473, 478, 484 (2000) (internal quotation marks omitted)).
39 Strickland, 466 U.S. at 687.
40 Id.
41 Id. at 688.
42 Id. at 694.
43 Id. at 687.
44 Wilkins makes a ninth claim arising out of the trial court’s issuance of supplementary jury

instructions without notifying him or his trial counsel, or reconvening the court. He styles
this claim as ineffective assistance of counsel. But it is properly framed as a claim for the
denial of his right to a public trial under the Sixth Amendment. Such a claim does not fall
within the scope of Martinez or Trevino and is therefore procedurally barred.
                                             10
     Case: 13-70014      Document: 00512572256         Page: 11    Date Filed: 03/25/2014



                                      No. 13-70014

     1. Failure to conduct reasonable pretrial mitigation investigation
        Wilkins asserts his trial counsel, Wes Ball (“Ball”), was ineffective
because he failed to investigate and present a constitutional sentencing case.
In particular, Wilkins contends that Ball abandoned early attempts at
investigation only to resume them once it was too late; that Ball failed to
ensure that the jury had a “true picture of the security measures” Wilkins
would be subjected to if he were sentenced to life in prison; that Ball failed to
“exclude, contest or mitigate the evidence” concerning Wilkins’s tattoos; and
finally that Ball failed to investigate the evidence of extraneous offenses the
State introduced at sentencing.
        To prevail on an IATC claim, a petitioner “who alleges failure to
investigate on the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered the outcome
of the trial.” 45 “In any [IATC claim], a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.” 46 Our assessment of
trial counsel’s investigation turns upon our “objective review of [his]
performance, 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.’” 47
        The record shows that Ball first obtained the assistance of an
investigator, Bruce Cummings (“Cummings”), in February 2006 and gave him
“authority to investigate and seek tangible and testimonial evidence from all



45 United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
46 Strickland, 466 U.S. at 691.
47 Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688–89).

                                            11
   Case: 13-70014    Document: 00512572256      Page: 12   Date Filed: 03/25/2014



                                 No. 13-70014

witnesses having knowledge or not regarding the accusations that may be
presented in [Wilkins’s] case.” In March 2006, Ball enlisted the help of
mitigation specialist Melissa Robinson (“Robinson”). Wilkins claims that both
Cummings and Robinson “soon ceased work,” as demonstrated by the fact that
Cummings did not submit billing for his work performed in the case. The
district court noted that Robinson was replaced due to health problems. In
January 2008, Ball replaced Cummings when he hired Cliff Ginn and Doug
Lamberson to work as investigators. Ball also hired Dr. Kelly Goodness (“Dr.
Goodness”) to act as both a mitigation specialist and psychologist.
      The district court found that the record showed Ginn, Lamberson, and
Dr. Goodness “worked diligently at mitigation investigation,” and that there
was “substantial evidence that trial counsel caused timely and reasonable
investigation to be conducted,” including the fact that Ball called nine
witnesses on Wilkins’s behalf during the punishment phase of trial. The record
supports this finding.
      Wilkins disagrees, characterizing the investigation as abandoned too
early and resumed too late. Wilkins claims he provided Ball with over eighty
names of family, friends, and other persons with knowledge of his personal
history, and that Ball chose to interview only a small number of them. Wilkins
also contends Ball failed to locate and examine basic records of his personal
history, as well as interview persons other than his mother about Wilkins’s
childhood. According to Wilkins, if Ball had conducted a proper investigation,
a “different picture of his childhood might well have emerged.” However, Dr.
Goodness’s investigation uncovered many of these details: she noted Wilkins’s
issues with drug use as a youth and reported that he felt “neglected and
rejected by his family.” Dr. Goodness concluded, “The lack of any sort [of]

                                      12
       Case: 13-70014        Document: 00512572256          Page: 13      Date Filed: 03/25/2014



                                           No. 13-70014

treatment or rehabilitation efforts is remarkable.” Wilkins also asserts that
Ball’s mitigation investigation was unreasonable because he failed to allow Dr.
Goodness to perform further examinations into Wilkins’s mental health issues,
despite Dr. Goodness’s conclusion that Wilkins had “neuropsychological
deficits . . . in several areas.” Wilkins further argues it was unreasonable for
Ball to rely on Wilkins’s “self-reported information without taking into account
his impulsive and self-destructive tendencies.”
          In addition, Wilkins claims Ball was ineffective at the punishment phase
for “fail[ing] to ensure the jury had a true picture of the security measures to
which [Wilkins] would be subject if sentenced to life,” for failing to “exclude,
contest or mitigate the evidence concerning [Wilkins’s] tattoos,” and for failing
to investigate the evidence the state introduced at sentencing.
          The district court determined that Wilkins’s claim of an unreasonable
mitigation investigation amounted to “conclusory allegations” which were
insufficient to show that he suffered any prejudice at the sentencing phase of
his trial. We agree. Wilkins makes numerous allegations of deficient
performance, but fails to show how the performance created a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 48 He claims the impact of Ball’s
unreasonable pretrial mitigation investigation can only be known “if the
federal habeas courts provide the means to investigate and present the case
that should have been developed prior to trial.” Concerning the evidence of
Wilkins’s tattoos, he states that Ball should have filed a motion in limine, 49
and that the prejudice he suffered as a result of the evidence being introduced


48   Strickland, 466 U.S. at 694.
49   The record shows that Ball did object to the introduction of the evidence of Wilkins’s tattoos.
                                                 13
     Case: 13-70014      Document: 00512572256        Page: 14     Date Filed: 03/25/2014



                                      No. 13-70014

“may be great.” Finally, he claims that the prejudicial effects of Ball’s deficient
performance concerning the security measures and the evidence of extraneous
offenses require “further development upon remand” with “sufficient means to
develop relevant facts.” None of these conclusory allegations are sufficient to
merit relief under Strickland. 50 Wilkins fails to persuade us that reasonable
jurists would find the district court’s assessment of his IATC claim for
inadequate pretrial mitigation investigation debatable or wrong. 51
     2. Denial of the right to unconflicted counsel
        Wilkins next argues that he was denied the right to unconflicted counsel
at trial because Ball had previously represented Gilbert Vallejo (“Vallejo”) in
probation revocation proceedings two decades earlier. Sometime before trial,
Wilkins confessed to police that he had murdered Vallejo two days before
killing Freeman and Silva. Wilkins contends his confession to murdering Ball’s
former client was false. The evidence of the confession was excluded at trial,
but the state was permitted to introduce this evidence during the sentencing
phase. Wilkins did not raise this issue at trial. He originally raised this issue
with the TCCA prior to his direct appeal, and the TCCA remanded the case to
the trial court to investigate. After holding a hearing at which both Ball and
Wilkins testified, the trial court concluded that Ball had no conflict of interest
despite his representation of Vallejo twenty years earlier. Nevertheless, the
trial court allowed Ball to withdraw as appellate counsel and substituted
another attorney.


50 See 466 U.S. at 693–94. (“It is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding. Virtually every act or omission of
counsel would meet that test, and not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.”) (citation omitted).
51 See Slack, 529 U.S. at 484.

                                            14
     Case: 13-70014       Document: 00512572256             Page: 15   Date Filed: 03/25/2014



                                       No. 13-70014

       Cuyler v. Sullivan establishes the controlling law regarding ineffective
assistance of counsel based on conflict of interest: “In order to establish a
violation of the Sixth Amendment, a defendant who raised no objection at trial
must demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.” 52 Therefore, we must determine whether Wilkins
offered proof that (1) trial counsel actively represented conflicting interests,
and (2) that an actual conflict of interest adversely impacted his lawyer’s
performance. 53 “[U]ntil a defendant shows that his counsel actively
represented conflicting interests, he has not established the constitutional
predicate for his claim of ineffective assistance.” 54
       Although Cuyler involved concurrent representation, this court “has not
definitively embraced the theory that there is any real and inviolate
substantive difference between conflicts of interest arising in the context of
successive, as opposed to concurrent, representations.” 55 In the case of
successive representation, a non-hypothetical conflict exists only “when
defense counsel is compelled to compromise his or her duty of loyalty or zealous
advocacy to the accused by choosing between or blending the divergent or
competing interests of a former or current client.” 56 This determination
depends on a number of factors, “including . . . whether the attorney has
confidential information that is helpful to one client but harmful to another;
whether and how closely the subject matter of the multiple representations is




52 446 U.S. 335, 349–50 (1980).
53 Id. at 348–49 (citation omitted).
54 Id. at 350.
55 Perillo v. Johnson, 205 F.3d 775, 798 (5th Cir. 2000).
56 Id. at 781.

                                              15
     Case: 13-70014       Document: 00512572256          Page: 16     Date Filed: 03/25/2014



                                       No. 13-70014

related; how close in time the multiple representations are related; and
whether the prior representation has been unambiguously terminated.” 57
        We are satisfied that the conflict here remained “purely hypothetical.” 58
Ball represented Vallejo in an unrelated probation revocation proceeding
twenty years prior to his representation of Wilkins. The representation of
Vallejo had been unequivocally terminated; the facts and issues of the prior
representation had no relation to Ball’s representation of Wilkins. No evidence
was produced by Wilkins to show that Ball even remembered representing
Vallejo. The burden lies with Wilkins to show that “there was some plausible
alternative defense strategy that could have been pursued, but was not,
because of the actual conflict.” 59 Wilkins has not carried this burden, and fails
to demonstrate that reasonable jurists would find the district court’s
assessment of this claim debatable or wrong. 60
     3. Denial of the right to counsel at a critical stage of the proceeding
        For his third claim, Wilkins asserts that he was de facto without counsel
during the conflict hearing regarding Ball’s relationship with Gilbert Vallejo
as a result of Ball’s conflict of interest. According to Wilkins, this amounted to
a denial of his right to counsel at a critical stage of the proceeding in violation
of his Sixth Amendment right to counsel.
        The Sixth Amendment provides in part that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” 61 “An accused’s right to be represented by counsel is

57 United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005) (citing Perillo, 205 F.3d at 798–
99).
58 See United States v. Burns, 526 F.3d 852, 857 (5th Cir. 2008).
59 Infante, 404 F.3d at 393 (citing Perillo, 205 F.3d at 807).
60 See Slack, 529 U.S. at 484.
61 U.S. Const. amend. VI.

                                              16
     Case: 13-70014       Document: 00512572256          Page: 17     Date Filed: 03/25/2014



                                       No. 13-70014

a fundamental component of our criminal justice system.” 62 “The mere presence
of counsel is insufficient; a defendant is not represented by the counsel as
guaranteed under the Sixth Amendment simply because an attorney is
standing next to him during a hearing.” 63
       “It is well settled that [the Sixth Amendment] means that a defendant is
entitled to be represented by counsel at all critical stages of a criminal
proceeding against him; critical stages of a criminal proceeding are those
stages of the proceeding at which the substantial rights of a defendant may be
affected.” 64 In determining whether the presence of counsel is required at a
particular stage, we focus on whether there has been a “denial of such
significance that it makes the adversary process itself unreliable.” 65 This court
has held that a critical stage of a criminal proceeding is a stage at which “the
substantial rights of [a defendant] may be affected.” 66
       Ordinarily, a defendant asserting a violation of his Sixth Amendment
right to counsel is required to demonstrate that counsel’s performance was
deficient and that he suffered prejudice as a result. 67 However, there are
exceptions in three situations that involve circumstances “so likely to prejudice
the accused that the cost of litigating their effect in a particular case is



62 United States v. Cronic, 466 U.S. 648, 653 (1984).
63 United States v. Robles, 445 F. App’x 771, 776–77 (5th Cir. 2011) (citing Avery v. Alabama,
308 U.S. 444, 446 (1940)) (“[T]he denial of opportunity for appointed counsel to confer, to
consult with the accused and to prepare his defense, could convert the appointment of counsel
into a sham and nothing more than a formal compliance with the Constitution’s requirement
that an accused be given the assistance of counsel.”)).
64 United States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991) (citations omitted).
65 United States v. Russell, 205 F.3d 768, 771 (5th Cir. 2000) (citing Cronic, 466 U.S. at 659).
66 McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) (citation and internal quotation marks

omitted).
67 Strickland, 466 U.S. at 685–87.

                                              17
     Case: 13-70014       Document: 00512572256         Page: 18   Date Filed: 03/25/2014



                                       No. 13-70014

unjustified.” 68 They are: (1) “the complete denial of counsel,” (2) where “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial
testing,” and (3) where “surrounding circumstances ma[k]e it . . . unlikely that
any lawyer could provide effective assistance.” 69
       Wilkins asserts he was completely denied counsel at the conflict hearing
in violation of his Sixth Amendment rights. However, we have already
determined that Ball did not have any actual conflict of interest in his
representation of Wilkins. Therefore, Wilkins was not deprived of counsel
during the conflict hearing.
     4. Involuntary not guilty plea
       Wilkins next argues Ball was ineffective for proceeding to trial despite
Wilkins’s desire to plead guilty. One of the most important duties of an
attorney representing a criminal defendant is advising the defendant about
whether he should plead guilty. 70 An attorney fulfills this obligation by
informing the defendant about the relevant circumstances and likely
consequences of a plea. 71 A defendant cannot make an intelligent choice about
whether to accept a plea offer unless he fully understands the risks of
proceeding to trial. 72
       Wilkins claims his plea of not guilty was not voluntary, and that he went
to trial only at the insistence of Ball for Ball’s benefit. Wilkins claims Ball
wanted to proceed to trial to “rack up” his billable hours, despite the fact that
the “prospect of success at the time of [Wilkins’s] plea was slender.” According


68 Cronic, 466 U.S. at 658.
69 Id. at 659, 661.
70 Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).
71 Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995).
72 Id. at 1171.

                                             18
     Case: 13-70014      Document: 00512572256         Page: 19     Date Filed: 03/25/2014



                                      No. 13-70014

to Wilkins, the not guilty plea did not reflect his voluntary and intelligent
choice and was made only for the financial benefit of Ball. In support of his
claim, Wilkins cites to portions of his testimony during sentencing, when he
stated “I’ve been trying to tell those people from out of the gate that, look, I’m
guilty, okay so now what? Let’s . . . get on over there and get this over with
sooner rather than later.” When asked if pleading not guilty had been his idea,
he responded “No, absolutely not. . . . Well, these guys over here, they convinced
me [to plead not guilty] . . . .” Wilkins continued to say he thought Ball wanted
to continue to trial in order to accumulate billable hours. Wilkins claims that
the “likely consequence” of Ball’s conduct was the death sentence Wilkins
received.
       Our cases which consider claims of an involuntary not guilty plea require
a petitioner to show that, by pleading guilty, he would have received a lower
sentence, 73 or to show, in addition to deficient performance, a “reasonable
probability that . . . the result of the proceeding would have been different.” 74
       No evidence was presented that the state offered any deal or concession
in return for a guilty plea. Therefore, even assuming Wilkins has made out a
claim for deficient performance, he has not shown a reasonable probability the
result of the proceeding would have been different. Like the defendant in
United States v. Faubion, Wilkins fails to demonstrate how he was harmed by
going to trial instead of pleading guilty. 75 Wilkins has thus failed to satisfy the
second prong of Strickland, that he was prejudiced by Ball’s insistence on




73 See United States v. Faubion, 19 F.3d 226, 229–30 (5th Cir. 1994).
74 See United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005).
75 See 19 F.3d at 229–30.

                                             19
     Case: 13-70014      Document: 00512572256        Page: 20     Date Filed: 03/25/2014



                                      No. 13-70014

entering a not guilty plea. We therefore find no showing that reasonable jurists
would find the district court’s assessment of this claim debatable or wrong. 76
     5. Incompetency to enter a plea or stand trial
        Wilkins contends that Ball was ineffective for failing to raise the issue of
incompetency. Wilkins argues he was incompetent to stand trial because he
“lacked both the ability to make meaningful use of counsel’s advice, and a
rational understanding of the gravity of the proceedings against him.”
        This court has observed that “[d]ue process prohibits the prosecution of
a defendant who is not competent to stand trial.” 77 The Supreme Court has
held that “the standard for competence to stand trial is whether the defendant
has ‘sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding’ and has ‘a rational as well as factual
understanding of the proceedings against him.’” 78 Habeas petitioners claiming
incompetency need to bear this “threshold burden of proof which must be
satisfied before the habeas court has a duty to investigate the constitutional
challenge further.” 79 To obtain habeas relief based on incompetency, Wilkins
must show that the facts are “sufficient to positively, unequivocally and clearly
generate a real, substantial and legitimate doubt as to the mental capacity of
the petitioner to meaningfully participate and cooperate with counsel during a
criminal trial.” 80 Once Wilkins has “presented enough probative evidence to




76 See Slack, 529 U.S. at 484.
77 Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998).
78 Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402,

403 (1960)).
79 Bruce v. Estelle, 536 F.2d 1051, 1058–59 (5th Cir. 1976).
80 Id. at 1043.

                                            20
       Case: 13-70014       Document: 00512572256         Page: 21    Date Filed: 03/25/2014



                                         No. 13-70014

raise a substantial doubt as to his competency at the time of trial, he must then
prove that incompetency by a preponderance of the evidence.” 81
         In support of this claim, Wilkins points to a series of “bad decisions” he
made, including: at least one extremely dangerous escape attempt; false
confessions to offenses which never occurred; talking with law enforcement
against the wishes of his lawyers; proceeding to trial despite his desire to plead
guilty so he could “give his attorneys more billable hours”; and, rather than
fighting for his life at the punishment stage, Wilkins told the jury “Just do
whatever you do.” In addition, Wilkins claims the record indicates many factors
suggesting brain damage, and quotes a report submitted by Dr. Goodness, a
psychologist, which stated, “Significant impulsivity and attention problems
were noted with his having great difficulty focusing on whatever the task was,
he had difficulty screening out ancillary noises in the jail, and his mind often
wandered.” Wilkins cites to jail records which he says indicate he is “paranoid
and schizophrenic,” although those same records indicate that this claim is
unsubstantiated because it was not possible to take Wilkins’s medical history
because he became “too defensive to answer questions.” Wilkins also makes the
unsubstantiated claim that the records in his case “indicate many factors
suggesting brain damage.” According to Wilkins, these facts suggest mental
health issues, and Ball, despite being fully aware of all the facts, was deficient
for failing to raise the issue of incompetency to stand trial. Wilkins now asks
this court for the opportunity to develop evidence concerning his mental status
at the time of trial and Ball’s deficient decisionmaking.




81   Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (citations omitted).
                                               21
       Case: 13-70014       Document: 00512572256    Page: 22   Date Filed: 03/25/2014



                                      No. 13-70014

          The district court rejected Wilkins’s assertion that Ball was ineffective
when he failed to raise the issue of competency to stand trial. Based on the lack
of probative evidence tending to show incompetence, we cannot say that
reasonable jurists would find the district court’s decision debatable or wrong. 82
Wilkins has displayed a pattern of bad decisions, as well as erratic behavior,
inappropriate jocularity, and an indifferent attitude during the guilt and
sentencing phases of his proceedings. But Wilkins offered no support to the
district court that his actions are the result of brain damage and mental health
problems or that he was unable to consult with counsel or understand the
proceedings. These facts are not enough to raise a debatable issue that he was
incompetent to stand trial.
      6. Failure to conduct reasonable pretrial investigation
          Wilkins asserts Ball was ineffective because he failed to conduct a
reasonable pretrial investigation and preparation for the guilt phase of the
trial. In support of his argument, Wilkins claims that Ball expended “little
effort to investigate the merits beyond one crime scene visit, speaking to the
medical examiners and inspecting the physical evidence a few days before trial
began.” As to the investigators hired by Ball, Wilkins claims they likewise “did
little concerning the merits beyond visiting the crime scenes, made some
inquiries there, served subpoenas, and tried to locate, or actually interviewed
four witnesses from the State’s witness list.” Wilkins now seeks the time and
resources to conduct an independent investigation so he can raise “legitimate
issues” concerning the State’s case.




82   See Slack, 529 U.S. at 484.
                                           22
     Case: 13-70014        Document: 00512572256           Page: 23     Date Filed: 03/25/2014



                                         No. 13-70014

       Like his IATC claim for unreasonable pretrial mitigation investigation,
Wilkins has failed to show any prejudice resulting from Ball’s purportedly
deficient performance in conducting the pretrial investigation. Thus, this claim
lacks merit because Wilkins has failed to show a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 83 We therefore find that Wilkins has failed to demonstrate that
reasonable jurists would find the district court’s denial of this claim debatable
or wrong. 84
     7. Failure to strike members of the jury venire
       Wilkins next argues Ball was ineffective for failing to strike two
members of the jury venire who were “unable to render an impartial decision.”
Specifically, Wilkins argues that Ball was ineffective for accepting juror Robert
Lee Evans (“Evans”) because Evans had a family member who was a
prosecutor, had encountered the prosecutor in Wilkins’s case in social settings,
and was “predisposed to sentence [Wilkins] to death because of the subject
matter of his tattoos.” In addition, Wilkins claims Ball was ineffective for
accepting juror Brandy Medford (“Medford”), who Wilkins claims “had been
exposed to unauthorized information about [Wilkins’s] case, was impaired in
her ability to follow the law, and who was related to a member of the court
personnel.”
       “In conducting the deficient performance analysis in the context of
counsel’s failure to strike an allegedly partial juror, a court first evaluates
whether the juror at issue was actually biased.” 85 “The issue of juror bias is a


83 See Strickland, 466 U.S. at 694.
84 See Slack, 529 U.S. at 484.
85 Seigfried v. Greer, 372 F. App’x 536, 539 (5th Cir. 2010) (per curiam) (citing Virgil v. Dretke,

446 F.3d 598, 608–10 (5th Cir. 2006)).
                                               23
     Case: 13-70014       Document: 00512572256          Page: 24     Date Filed: 03/25/2014



                                        No. 13-70014

factual finding.” 86 Determining bias focuses on a juror’s own indication that
she has “such fixed opinions that [she] could not judge impartially [the
petitioner’s] guilt,” 87 and whether “her views would prevent or substantially
impair the performance of his or her duties as a juror in accordance with his or
her instructions and oath.” 88
       We agree with the district court that Wilkins has not provided evidence
that either juror at issue was actually biased. The familial and social
relationships pointed to by Wilkins are insufficient to carry his burden. Thus,
Ball’s failure to object to the inclusion of the two jurors does not constitute
deficient performance within the meaning of Strickland. Wilkins has thus
failed to demonstrate that reasonable jurists would find the district court’s
assessment of this claim debatable or wrong. 89
     8. Failure to object to excessive and prejudicial security measures during
        the sentencing phase of trial

       In his last Martinez claim, Wilkins argues Ball was ineffective because
he failed to object to excessive and prejudicial security measures adopted by
the trial court during the sentencing phase of trial. Namely, Wilkins claims
there was an excessive number of guards in close proximity to him while he
testified at the sentencing phase, and that the use of a taser belt as a restraint
with a guard holding the remote nearby and visible to the jury impaired his
defense. Wilkins argues this was a prejudicial violation to which Ball should
have objected, but did not.



86 Id. (citing Virgil, 446 F.3d at 610 n.52).
87 Patton v. Yount, 467 U.S. 1025, 1035 (1984).
88 United States v. Scott, 159 F.3d 916, 925 (5th Cir. 1998) (citations omitted).
89 See Slack, 529 U.S. at 484.

                                              24
     Case: 13-70014      Document: 00512572256         Page: 25     Date Filed: 03/25/2014



                                      No. 13-70014

       The Supreme Court “has stressed the ‘acute need’ for reliable
decisionmaking when the death penalty is at issue.” 90 “The appearance of the
offender during the penalty phase in shackles . . . almost inevitably implies to
a jury, as a matter of common sense, that court authorities consider the
offender a danger to the community—often a statutory aggravator and nearly
always a relevant factor in jury decisionmaking, even where the State does not
specifically argue the point.” 91 Thus, it “inevitably undermines” a jury’s ability
to weigh with accuracy all relevant considerations when it determines whether
a defendant deserves death. 92 Accordingly, the Court has concluded that
“courts cannot routinely place defendants in shackles or other physical
restraints visible to the jury during the penalty phase of a capital
proceeding.” 93 However, a trial judge is permitted “in the exercise of his or her
discretion, to take account of special circumstances, including security
concerns, that may call for shackling.” 94
       The record in the instant case makes clear that Wilkins had attempted
escape multiple times: he broke both ankles after falling thirty feet from the
outer wall of a prison basketball court; at one point, he was discovered to have
swallowed a handcuff key; one of the key events which led to his encounter
with murder victims Freeman and Silva was an escape from a Texas halfway
house. The record also indicates a history and propensity for violence. We
therefore conclude that any objection made by Ball likely would have been
futile, as the trial court was well within its discretion to impose increased

90 Deck v. Missouri, 544 U.S. 622, 632 (2005) (quoting Monge v. California, 524 U.S. 721, 732
(1998)).
91 Id. at 633.
92 Id.
93 Id.
94 Id.

                                             25
       Case: 13-70014       Document: 00512572256    Page: 26   Date Filed: 03/25/2014



                                      No. 13-70014

security measures during the penalty phase given Wilkins’s personal history,
and the record does not demonstrate that the presence of the taser belt was
open and obvious to the jury. Thus, his claim that Ball was ineffective for
failing to object fails to satisfy the prejudice prong of Strickland. We see no
reason to find that reasonable jurists would find the district court’s denial of
this claim debatable or wrong. 95
Conclusion as to IATC claims
          In summary, Wilkins has failed to establish cause for his procedural
default under Martinez. Even assuming arguendo that state habeas counsel,
Jack Strickland, was deficient for failing to bring the claims during state
habeas proceedings, none of the underlying IATC claims are “substantial” as
required by Martinez. 96 Because Wilkins, in each of his eight claims for relief,
has failed to establish both prongs of an ineffective assistance claim under
Strickland, we deny his petition for COA.
                                           IV.
          Finally, Wilkins argues that the district court abused its discretion in
denying him funding to pay for expert and investigative assistance in
developing the merits of his IATC claims, and that the district court’s refusal
to order that Wilkins’s entire legal files be returned to him was an abuse of
discretion.
          Under the relevant statute, a district court “may authorize . . . [and]
order the payment of fees and expenses” for “investigative, expert, or other
services” upon a finding that they “are reasonably necessary for the




95   See Slack, 529 U.S. at 484.
96   See 132 S. Ct. at 1318.
                                           26
     Case: 13-70014      Document: 00512572256          Page: 27     Date Filed: 03/25/2014



                                       No. 13-70014

representation of the defendant.” 97 This court construes “reasonably
necessary” to mean that a petitioner must demonstrate “a substantial need”
for the requested assistance. 98 However, the denial of such funding “has been
upheld ‘when a petitioner has (a) failed to supplement his funding request with
a viable constitutional claim that is not procedurally barred, or (b) when the
sought after assistance would only support a meritless claim, or (c) when the
sought after assistance would only supplement prior evidence.’” 99 Wilkins
offered little to no evidence that the investigative avenues counsel proposed to
take hold any significant chance for success. Our precedent is clear that a
habeas petitioner is not entitled to investigative funds under these
circumstances, and the district court did not abuse its discretion in so holding.
       Likewise, the district court did not abuse its discretion when it failed to
order that Wilkins’s entire legal files be returned to him. The record
demonstrates that, after both parties filed motions concerning the disclosure
of the files, the district court held a hearing during which the parties agreed to
“continue to negotiate terms of disclosure” of the material. Thereafter, the
district court dismissed both motions as moot. No subsequent motions were
filed on this issue which would have allowed the district court to take action;
it was only raised later as grounds for relief in Wilkins’s habeas petition. The
district court denied relief. It stated that, during the hearing on the disclosure
issue, Wilkins’s federal habeas counsel “virtually admitted” this claim lacked
substance, and that “[n]othing alleged in the petition causes the [district] court


97 18 U.S.C. § 3599(f).
98 Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004) (quoting Clark v. Johnson, 202 F.3d 760,
768 (5th Cir. 2000)) (internal quotation marks omitted).
99 Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009) (quoting Smith v. Dretke, 422 F.3d

269, 288 (5th Cir. 2005)).
                                             27
    Case: 13-70014    Document: 00512572256      Page: 28    Date Filed: 03/25/2014



                                  No. 13-70014

to conclude that [Wilkins’s] federal habeas counsel has not received all parts of
his state court counsels’ files relevant to his federal habeas petition.” The
district court did not abuse its discretion in failing to order disclosure of files
under these circumstances.
                                        V.
      For the reasons stated above, we find that Wilkins has failed to
demonstrate that reasonable jurists would find the district court’s assessment
of his claims under Maples and Martinez debatable or wrong. The district
court’s judgment denying additional funding is AFFIRMED and Wilkins’s
motion for a COA is DENIED.




                                        28
