     Case: 15-70015   Document: 00513434126      Page: 1   Date Filed: 03/22/2016




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

                                                                           FILED
                                                                        March 22, 2016
                                  No. 15-70015
                                                                        Lyle W. Cayce
                                                                             Clerk
CARLOS MANUEL AYESTAS, also known as Dennis Zelaya Corea,

             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 Southern District of Texas


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      The district court denied Carlos Manuel Ayestas relief from his capital
sentence under 28 U.S.C. § 2254. It then denied him investigative assistance
under 18 U.S.C. § 3599(f) to develop evidence that might prove his previous
attorneys were ineffective. Ayestas appeals these decisions. We AFFIRM.
      Separately, after these district court rulings, Ayestas discovered new
evidence suggesting his prosecution was based improperly on his national
origin. He moved to amend his Section 2254 application to raise this new
claim. The district court denied the motion. The court also denied a certificate
of appealability, and so do we.
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                                    No. 15-70015
               FACTUAL AND PROCEDURAL BACKGROUND
      Carlos Manuel Ayestas 1 was sentenced to death for the murder of
Santiaga Paneque, who was killed during a robbery in her home in Houston,
Texas, in August 1995. The Texas Court of Criminal Appeals affirmed his
conviction and sentence on November 4, 1998.
      In December 1998, Ayestas sought state habeas relief.            His two court-
appointed lawyers raised several claims, including an ineffective assistance of
trial counsel (“IATC”) claim.       Ayestas, through his state habeas lawyers,
argued that his trial counsel was ineffective because he failed to secure the
attendance of Ayestas’s family members from Honduras for sentencing
mitigation.   According to Ayestas, they “could have testified to [his] good
character traits, positive upbringing, good scholastic record, and lack of
juvenile or criminal record while growing up in Honduras.” Ayestas did not
claim that his trial counsel failed to conduct a reasonable investigation into all
potentially mitigating evidence.
      The State of Texas presented an affidavit from Ayestas’s trial counsel in
which he asserted that Ayestas ordered him not to contact Ayestas’s family.
According to trial counsel, Ayestas later relented and allowed him to contact
Ayestas’s family, either shortly before or just after jury selection. The family
was unable to attend sentencing.          Counsel said Ayestas’s mother seemed
“unconcerned” about her son’s trial. The Texas state district court denied
relief, holding that Ayestas’s trial counsel made reasonable and diligent efforts
to secure the attendance of Ayestas’s family and was not ineffective. The Texas
Court of Criminal Appeals affirmed in 2008.




      1 Carlos Manuel Ayestas’s true name is Dennis Zelaya Corea. We refer to the
defendant as. Ayestas because that is the name under which he was charged and convicted.
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                                 No. 15-70015
      In 2009, new counsel for Ayestas filed in federal district court an
application under 28 U.S.C. § 2254. For the first time, Ayestas asserted the
claim that his trial counsel was ineffective by failing to make a reasonable
investigation of all potentially mitigating evidence. Ayestas’s federal habeas
counsel argued that had trial counsel conducted a thorough investigation, he
would have uncovered other mitigating evidence. Examples were Ayestas’s
lack of criminal history in Honduras, that one of his co-defendants in this case
was a “bad influence” on him, that Ayestas suffered from schizophrenia, and
that he was addicted to drugs and alcohol.
      The district court determined that because this claim was not raised in
the Texas state habeas proceeding, Ayestas had procedurally defaulted the
claim. The court refused to excuse the default because Ayestas had failed to
show “cause,” as no factor external to Ayestas’s defense impeded his state
habeas attorneys’ ability to present the broader IATC claim. In 2012, we
denied Ayestas’s request for a certificate of appealability (“COA”). Ayestas v.
Thaler, 462 F. App’x 474 (5th Cir. 2012).
      Shortly thereafter, the Supreme Court decided Martinez v. Ryan, 132 S.
Ct. 1309 (2012), which held that the ineffectiveness of state habeas counsel in
failing to claim IATC may provide cause to excuse a default; if so, prejudice
would need to be shown. After Martinez, Ayestas filed a motion for rehearing,
asking us to vacate our prior judgment. We denied that motion, holding that
Martinez did not apply in Texas because its procedures were distinguishable.
The Supreme Court then extended Martinez to Texas in Trevino v. Thaler, 133
S.Ct. 1911 (2013). The Court vacated and remanded the present case to us for
further consideration in light of Trevino. Ayestas v. Thaler, 133 S.Ct. 2764
(2013).   We then remanded to the district court “to reconsider Ayestas’s
procedurally defaulted ineffective assistance of counsel claims in light of
Trevino.” Ayestas v. Stephens, 553 F. App’x 422 (5th Cir. 2014).
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      On remand, Ayestas filed a motion for investigative assistance under 18
U.S.C. § 3599(f), requesting a mitigation specialist in order to develop his
broader IATC claim. On November 18, 2014, the district court entered a
memorandum opinion and judgment, denying Ayestas habeas relief, denying a
COA, and denying investigative assistance. The district court determined that
neither Ayestas’s trial counsel nor his state habeas counsel were ineffective,
and thus the broader IATC claim was still procedurally defaulted. It then
determined that because Ayestas’s underlying IATC claim was still without
merit, a mitigation specialist was not “reasonably necessary.” On December
16, 2014, Ayestas filed a Federal Rule of Civil Procedure Rule 59(e) Motion to
Alter or Amend the Judgment, re-urging many of his prior arguments.
      Issues that arose after the district court’s November 18 decision are also
before us. On December 22, 2014, Ayestas’s counsel, while reviewing portions
of the prosecution’s file at the Office of the District Attorney in Houston,
discovered a Capital Murder Summary memorandum, prepared by the
prosecution, stating that Ayestas’s lack of citizenship was an “aggravating
circumstance[].” Ayestas argues this indicates that the prosecution, at least in
part, sought capital punishment on the improper basis of national origin.
      On January 9, 2015, Ayestas filed a “Motion for Leave to Amend Original
Petition for Writ of Habeas Corpus” where he, through Rule 15(e), sought to
amend his Section 2254 application to add claims based on this newly
discovered memorandum.       He argued the state conviction and sentence
violated the Equal Protection Clause and the Cruel and Unusual Punishment
Clause of the Constitution. On January 14, 2015, Ayestas supplemented his
December 16 Rule 59(e) motion to expand the basis upon which the district
court should grant the motion.
      Realizing the district court would not be able to review his new claims
even if it were to grant his Rule 59(e) motion because they were not exhausted
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in state court, Ayestas, on the same day, filed a motion to stay the federal
proceedings until the new claims could be exhausted. Ayestas argued that he
had good cause for not presenting these claims previously in state court. On
February 17, 2015, the district court denied Ayestas’s motions for leave to
amend and for a stay. The district court then denied the Rule 59(e) motion on
April 1, 2015, and again denied a COA.


                                DISCUSSION
      The procedural posture requires Ayestas to appeal multiple aspects of
the district court’s decisions in order for us to reach the merits of his habeas
appeal and his new claims.
      First, because the district court rendered final judgment by denying
Ayestas habeas relief in the November 18 decision and then entered the April
1 order denying Ayestas’s Rule 59(e) motion, the final judgment must be
vacated before Ayestas may amend his petition and add new claims. See
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n.1 (5th Cir. 1981).
Ayestas asks us to vacate the judgment so he may amend his petition to include
these new claims. Second, Ayestas appeals the part of the February 17, 2015
order denying his motion for leave to amend under Rule 15. Finally, because
Ayestas’s new claims are unexhausted in state court, he appeals the part of the
February 17 order denying his motion for a stay and abeyance.
      Generally, under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), we do not have jurisdiction to review a district court’s “final order
in a habeas corpus proceeding in which the detention complained of arises out
of process issued by a State court” denying an inmate habeas relief unless the
inmate first obtains a COA. 28 U.S.C. § 2253(c)(1)(A). While both the district
court judge and the relevant court of appeals may issue a COA, the inmate
must first seek a COA from the district court. Gonzalez v. Thaler, 132 S. Ct.
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641, 649 n.5 (2012). The district court denied Ayestas a COA in both its
November 18, 2014 and April 1, 2015 decisions. For Ayestas to appeal these
two decisions, therefore, we must first grant him a COA. We grant a COA only
upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).   When the district court denies an applicant’s constitutional
claims on procedural grounds, as the case here, a COA will issue only if the
applicant shows that reasonable jurists would debate whether the district
court was correct in its procedural ruling and whether the petition states a
valid claim on the merits. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Somewhat separately, however, Ayestas appeals an aspect of the district
court’s November 18 decision denying him investigative assistance. We do
have jurisdiction to review this without first requiring a COA. This is because
a COA is only required of appeals of “final orders that dispose of the merits of
a habeas corpus proceeding.”     Harbison v. Bell, 556 U.S. 180, 183 (2009)
(emphasis added).    “An order that merely denies a motion to enlarge the
authority of appointed counsel (or that denies a motion for appointment of
counsel [or assistance]) is not such an order and is therefore not subject to the
COA requirement.” Id. As such, as to the district court’s decision to deny
Ayestas investigative assistance, we review for abuse of discretion. See Hill v.
Johnson, 210 F.3d 481, 487 (5th Cir. 2000). “A trial court abuses its discretion
when its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” United States v. Ebron, 683 F.3d 105, 153 (5th
Cir. 2012).
      We will discuss first the issues arising from the denial of Ayestas’s
request for investigative assistance.       We will then address the merits of
Ayestas’s IATC claim. Finally, we address Ayestas’s claim that new evidence
required some form of relief.


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                                  No. 15-70015
I.    Investigative Assistance

      As mentioned above, an appeal of a denial of investigate assistance does
not require a COA and is reviewed for abuse of discretion. For this particular
claim, Ayestas argues the district court should not have examined the merits
of his IATC claims until it provided him with a mitigation specialist and
allowed the results of that investigation to be presented. Ayestas argues that
under Martinez and Trevino, in order to prove that his prior lawyers were
ineffective, he must be allowed to develop and discover what his prior lawyers
should have developed or discovered. As Ayestas explains:
      By prematurely deciding that [Ayestas’s] IATC claims were
      facially meritless, without affording resources for factual
      development under 18 U.S.C. § 3599(f). . . . the district court
      summarily dismissed [Ayestas’s] petition based solely on its review
      of the allegations contained in the original petition filed in 2009.
      Ayestas argues that the merits of the IATC claim cannot rest on the
record from the state habeas proceeding, which allegedly is infected with the
work of ineffective counsel.     Instead, he must be allowed to develop new
evidence to support his factual allegations. The argument, at least in part, is
foreclosed by circuit precedent. A district court is within its discretion to deny
an application for funding “when a petitioner has [] failed to supplement his
funding request with a viable constitutional claim that is not procedurally
barred.” Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014), cert. denied,
135 S. Ct. 1733 (2015). Though Brown dealt with a defendant bringing an
initial federal habeas claim and Ayestas’s current appeal is before us on
remand from the Supreme Court, the difference in procedural postures is not
significant. The district court properly considered the procedural default prior
to approving Section 3599(f) funding for this federal habeas claim.
      In two recent post-Martinez and Trevino opinions, this court held that
Section 3599(f) funding is available if the district court finds that there is a

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“substantial need” for such services to pursue a claim that is not procedurally
barred. Allen v. Stephens, 805 F.3d 617, 626, 638−39 (5th Cir. 2015); Wade v.
Stephens, 777 F.3d 250, 266 (5th Cir.), cert. denied, 136 S. Ct. 86 (2015).
Ayestas argues the district court, and by extension these two precedents,
required an impossibility: proving deficient performance in order to be given
resources    to   discover   the   evidence   of   deficient   performance.       He
mischaracterizes the requirement.       There must be a viable constitutional
claim, not a meritless one, and not simply a search for evidence that is
supplemental to evidence already presented. Brown, 762 F.3d at 459. The
basic point is that a prisoner cannot get funding to search for whatever can be
found to support an as-yet unidentified basis for holding that his earlier
counsel was constitutionally ineffective.           Instead, there must be a
substantiated argument, not speculation, about what the prior counsel did or
omitted doing. Ayestas indeed offered such an argument. We interpret the
district court’s ruling as being that any evidence of ineffectiveness, even if
found, would not support relief.
       The district court did not abuse its discretion when it declined to
authorize a mitigation specialist for Ayestas before it determined the viability
of Ayestas’s claim. We still must decide if the district court properly denied
Ayestas investigative assistance on the basis that a mitigation specialist was
not “reasonably necessary” because his claim was meritless. For this, we must
briefly analyze the underlying merits of Ayestas’s claim. See id. We turn now
to that question.


II.    Overcoming Procedural Default
       In order for the Martinez/Trevino exception to excuse a prior procedural
default, Ayestas must present a viable claim that his trial counsel was


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ineffective and his state habeas attorneys were ineffective in failing to raise
trial counsel’s errors. See Martinez, 132 S. Ct. at 1321.
      Ineffective assistance requires deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance
is deficient if it falls “below an objective standard of reasonableness” based on
“prevailing professional norms.” Id. at 687−88. “[C]ounsel has a duty to make
reasonable investigations,” id. at 691, including an “obligation to conduct a
thorough investigation of the defendant’s background,” Porter v. McCollum,
558 U.S. 30, 39 (2009). Nonetheless, there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
      The specific deficiencies Ayestas raises concern his trial counsel’s alleged
failure to investigate and present evidence about his drug use and possible
mental illness.   Such evidence allegedly would have been discoverable if
counsel had contacted family and friends in Ayestas’s home country of
Honduras.    Ayestas also points out that his trial counsel, for 15 months,
stopped pursuing mitigation evidence, only resuming his activities 10 days
prior to jury selection. He also claims his counsel in the initial state habeas
proceedings should have made an issue of this alleged ineffectiveness by trial
counsel.
      The district court rejected the claim because Ayestas barred his
attorneys from contacting his family, finally relenting around the time of jury
selection for his sentencing. Trial counsel then pursued evidence from the
family in Honduras and California by sending letters to them and finally
seeking the assistance of the United States embassy in Honduras. A few days
after Ayestas allowed contact, trial counsel also telephoned Ayestas’s mother
in Honduras. As we have already discussed and as detailed in the district
court’s opinion, the mother showed a lack of zeal in assisting the defense. The
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district court relied on caselaw in which we held that an attorney is not
ineffective for failing to present evidence in mitigation at sentencing if the
defendant orders counsel not to do so. See Autry v. McKaskle, 727 F.2d 358,
362–63 (5th Cir. 1984).    We conclude that an attorney’s compliance with a
capital-case client’s demand that contact not be made with his family is
similarly permitted.
      On appeal now, counsel argues that such interference by the defendant
heightens the need for counsel to search for other sources of information about
the defendant’s background.       We do not agree with such a standard.
Regardless of the specific problems that arise in the investigation for
mitigation evidence, the issue is whether counsel made “reasonable
investigations or . . . a reasonable decision that makes particular investigations
unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland,
466 U.S. at 691). The district court pointed out trial counsel’s efforts and
discoveries despite the limitations under which counsel worked. Counsel spoke
by phone with Ayestas’s family. He acquired Ayestas’s school records and was
aware of the substance abuse. Ayestas was also examined by a psychologist.
      The district court’s analysis of the argument about Ayestas’s mental
illness relied in part on the absence of any evidence that medical records
existed at the time of trial that would have shown Ayestas was suffering from
any mental illness. Therefore, defense counsel were not on notice of the need
to pursue this line of inquiry at his initial trial. This analysis injects the
question of whether current counsel has shown a need for funding to pursue
what evidence might have existed to alert trial counsel of Ayestas’s mental
state in 1997. The briefing here discusses at great length the progression of
schizophrenia, the mental disease with which Ayestas has now been diagnosed.
The diagnosis was not made until 2000 while he was in prison after his
conviction for this crime. Perhaps, counsel posits, a thorough investigation
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now would uncover evidence that early-stage symptoms of this disease were
exhibiting themselves in 1997, making trial counsel’s unawareness of those
symptoms constitutionally ineffective representation.
      We find no error in the rejection of the claims about mental illness. Trial
counsel in 1997 had Ayestas examined by a psychologist. The briefing does not
suggest that the examination itself revealed a basis for further investigation.
Whatever medical understandings could be applied now to evidence about
Ayestas’s mental condition in 1997, with the benefit of hindsight and perhaps
additional knowledge about this disease, does not undermine that trial counsel
was not constitutionally ineffective in pursuing what appeared at that time to
be unproductive lines of inquiry.
      Moreover, even if trial counsel had pursued such lines of inquiry, the
results would not have been fruitful. A Strickland ineffective representation
requires deficient performance and prejudice. Prejudice means “a reasonable
probability . . . the result of the proceeding would have been different.” Hinton
v. Alabama, 134 S. Ct. 1081, 1089 (2014).        A reasonable probability is a
“substantial, not just conceivable, likelihood of a different result.” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (quotation marks omitted). The district
court held that regardless of any deficiencies in the investigation about
substance abuse, no prejudice resulted because, in light of the brutality of the
crime, it was “highly unlikely that evidence of substance abuse would have
changed the outcome of the sentencing phase of trial or of the state habeas
corpus proceeding.” That finding is valid. Further, even if Ayestas had entered
the early stages of an as-yet undiagnosed mental illness, we find it at best to
be conceivable, but not substantially likely, that the outcome may have been
different.
      As to the district court’s refusal to fund an investigation into Ayestas’s
mental condition as it existed almost 20 years ago, we find no abuse of
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discretion. The arguments about what might be discovered still have to be
examined from the perspective of what trial counsel reasonably should have
known and done those many years ago. See Strickland, 466 U.S. at 689. The
district court did not err in failing to allow this inquiry to proceed.
      Because we agree with the district court that there is no basis to hold
trial counsel was constitutionally ineffective for failing to investigate further
the possible questions of mental illness and substance abuse, Ayestas’s state
habeas counsel were not ineffective for failing to pursue that line of
investigation.     Raising every conceivable claim is neither required nor
beneficial. Ayestas’s state habeas counsel raised 16 claims for relief, including
10 ineffective assistance of counsel arguments. There was no shortage of
claims, though mere numbers of claims do not dispel the possibility of
constitutional ineffectiveness. Because we have already held that trial counsel
was not ineffective in failing to raise these particular claims, at most, Ayestas’s
arguments deal with the strategic choices the state habeas lawyers had to
make. Such choices are not subject to second-guessing by a court. Strickland,
466 U.S. at 689.
      In summary, the district court correctly rejected the assertion that
Ayestas’s trial and state habeas attorneys were ineffective.          As a result,
because Ayestas cannot show that his claim is viable and that assistance was
reasonably necessary, the district court properly determined that Ayestas was
not entitled to a mitigation specialist under Section 3599(f).
      To the extent that Ayestas also appeals the district court’s November 18,
2014 memorandum opinion denying habeas relief on the merits, and the April
1, 2015 order denying his Rule 59(e) motion, these appeals are foreclosed. For
these appeals, Ayestas requires a COA. As mentioned above, one requirement
for the granting of a COA is a valid claim on the merits. For the same reasons


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that we have explained above for why Ayestas is not entitled to a mitigation
specialist, we also deny Ayestas a COA.


III.     Amendment to Section 2254 Application
         We now turn to the issues that arise from the district court’s denial of
Ayestas’s motion to supplement his claims with arguments about the Capital
Murder Summary memorandum. That is the document that suggested that
Ayestas’s non-citizen status was one of two factors that led to the
recommendation that the death penalty should be sought.
         Ayestas’s appellate brief supporting his application for a COA
acknowledged that in district court, he had “sought to amend with a claim
wholly unrelated to the IATC claim litigated under Trevino,” which was the
matter we had remanded to the court. Under what is called the “mandate
rule,” a district court on remand is limited to consideration of the matters that
were the subject of the order from the appellate court. Henderson v. Stadler,
407 F.3d 351, 354 (5th Cir. 2005). We have used this articulation of the
requirement:
         [T]he mandate rule compels compliance on remand with the
         dictates of a superior court and forecloses relitigation of issues
         expressly or impliedly decided by the appellate court.

Id. (quoting United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)). The
district court held that adding the unrelated claims to the subject of the
remand would violate the mandate rule. Ayestas disagrees, first arguing the
district court misinterpreted our remand order as limiting its discretion, and
then arguing the mandate rule does not preclude the addition of a new claim.
We disagree on both fronts.
         As to his first argument, Ayestas claims that the last sentence of our
remand order shows that we expressly declined to constrain the district court:

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      We REMAND to the district court to reconsider Ayestas’s
      procedurally defaulted ineffective assistance of counsel claims in
      light of Trevino. We express no view on what decisions the district
      court should make on remand.

Ayestas v. Stephens, 553 F. App’x 422, 423 (5th Cir. 2014) (emphasis added).
Ayestas reads too much into this sentence. As the penultimate sentence clearly
reads, the remand was limited to the reconsideration of the defaulted IATC
claim. The last sentence simply indicates that we express no view as to how
the district court should decide or approach this IATC claim.
      As to his second argument, Ayestas relies heavily on a Supreme Court
case as standing for the proposition that “the circuit court may consider and
decide any matters left open by the mandate of this court.” In re Sanford Fork
& Tool Co., 160 U.S. 247, 256 (1895). But as explained above, our remand
order did not leave open any matter other than the defaulted IATC claim. If
anything, Sanford Fork supports our decision in this case. The district court
did not err in its interpretation of our remand order or its application of the
mandate rule.
      Additionally, Ayestas’s new constitutional claims are unexhausted in
state court and therefore cannot now be reviewed here on the merits. 28 U.S.C.
§ 2254(b)(1)(A). Realizing the need for exhaustion, Ayestas filed a motion to
stay and hold the proceedings in abeyance in order to return to state court to
exhaust the new claims. “When a petitioner brings an unexhausted claim in
federal court, stay and abeyance is appropriate when the district court finds
that there was good cause for the failure to exhaust the claim; the claim is not
plainly meritless; and there is no indication that the failure was for purposes
of delay.” Williams v. Thaler, 602 F.3d 291, 309 (5th Cir. 2010). “[W]hen a
petitioner is procedurally barred from raising [his] claims in state court, his
unexhausted claims are plainly meritless.” Id. (quotation marks omitted).


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Hence, we turn to examining whether Ayestas would be barred under Texas
law from bringing his new claims.
      In Texas, subsequent petitions for writ of habeas corpus in a death
penalty case based upon newly available evidence, are handled as follows:
      (a) If a subsequent application for a writ of habeas corpus is filed
      after filing an initial application, a court may not consider the
      merits of or grant relief based on the subsequent application unless
      the application contains sufficient specific facts establishing that:

            (1) the current claims and issues have not been and could not
            have been presented previously in a timely initial
            application or in a previously considered application filed
            under this article or Article 11.07 because the factual or legal
            basis for the claim was unavailable on the date the applicant
            filed the previous application . . . .

TEX. CRIM. PROC. CODE art. 11.071 § 5(a)(1). Section 5(e) further provides that
“[f]or purposes of Subsection (a)(1), a factual basis of a claim is unavailable on
or before a date described by Subsection (a)(1) if the factual basis was not
ascertainable through the exercise of reasonable diligence on or before that
date.” Id. art. 11.071 § 5(e).
      Thus, Ayestas must show he exercised reasonable diligence in trying to
obtain evidence such as the memorandum. Ayestas’s briefing in this court and
in the district court never suggests he sought to examine the prosecution’s file
prior to the December 22 search that uncovered the memorandum. A defense
counsel’s “duty to investigate” includes “efforts to secure relevant information
in the possession of the prosecution [and] law enforcement authorities.” ABA
STANDARDS FOR CRIMINAL JUSTICE: DUTY TO INVESTIGATE AND ENGAGE
INVESTIGATORS 4-4.1(c) (4th ed. 2015); Rompilla v. Beard, 545 U.S. 374, 385–
89 (2005) (explaining that counsel’s failure to look at a “readily available”
prosecution file was deficient performance for the purposes of Strickland).
Moreover, Ayestas makes no claim “that [the memorandum] was unavailable

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                                 No. 15-70015
to [his] trial counsel through a reasonably diligent examination of the case file
the prosecution had made available.” Amador v. Dretke, No. Civ.SA-02-CA-
230-XR, 2005 WL 827092, at *18 (W.D. Tex. Apr. 11, 2005).
      Ayestas offers two explanations for his failure to investigate the
prosecution’s file. First, he argues that the state was under an affirmative
duty to turn the memorandum over to him. Second, he argues he properly
assumed a search of the folder would not uncover information as material as
this document.
      The first explanation is based on Ayestas’s having made two demands
under Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the state must
disclose exculpatory evidence upon a proper demand by the defendant. Id. at
87. While the state was under an obligation to turn over such evidence in this
case, there is no Brady violation if counsel, “using reasonable diligence, could
have obtained the information.” Williams v. Scott, 35 F.3d 159, 163 (5th Cir.
1994). Though Ayestas is not asserting a Brady claim, the fact that there
would be no Brady violation unless Ayestas were reasonably diligent in
discovering evidence suggests to us that any alleged failings on the part of the
state in not turning over the memorandum do not mitigate Ayestas’s own
responsibility to undertake a reasonably diligent investigation for the purposes
of Section 5 of Article 11.071. Hence, even though Ayestas filed two Brady
demands, Ayestas was under an independent obligation to use reasonable
diligence in attempting to discover exculpatory evidence, which, as explained
above, he failed to do.
      Ayestas’s latter justification is that he “rightly assume[d] that the
District Attorney would redact its file of all privileged work product, such as
the capital murder summary.” This justification is circular and without merit.
Ayestas essentially argues that he assumed no material information was
contained in the file, and that had he known such material information was in
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   Case: 15-70015    Document: 00513434126      Page: 17   Date Filed: 03/22/2016



                                 No. 15-70015
the file, he would have investigated the file. Of course, had Ayestas known the
memorandum was in the file he would have no doubt searched it, but the point
of reasonable diligence is to ensure that such evidence is found when it is
unclear where such evidence may lie. Ayestas’s assumption does not serve to
excuse his duty to secure information in the possession of the prosecution. ABA
STANDARDS FOR CRIMINAL JUSTICE: DUTY TO INVESTIGATE AND ENGAGE
INVESTIGATORS 4-4.1(c) (4th ed. 2015).
      Additionally, as discussed above, even if not procedurally defaulted,
Ayestas’s claims are not likely to succeed on the merits. The district court did
not err in concluding Ayestas’s trial counsel and his state habeas attorneys
were not ineffective.    Hence, even if Ayestas could prove he exercised
reasonable diligence in discovering the memorandum, he still cannot exhaust
his new claims in the Texas courts because his claims are not meritorious.
      Ayestas did not exercise reasonable diligence in attempting to discover
the memorandum earlier. Therefore, he is unable to prove under Section 5 of
Article 11.071(a) of the Texas Code of Criminal Procedure that he would be
entitled to a subsequent state habeas hearing to exhaust his new claims that
are based on the newly discovered memorandum. Hence, Ayestas has not
exhausted, and will not be able to exhaust, these claims in state court. Because
we are unable to review unexhausted claims, the district court did not abuse
its discretion in denying Ayestas’s motion for a stay and abeyance.
      The request for certificate of appealability is DENIED. The judgment
rejecting Ayestas’s Section 2254 application is AFFIRMED.




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