Nuncio v. Johnson

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 99-10673
_____________________

PAUL SELSO NUNCIO,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
(5:99-CV-025)
_________________________________________________________________

January 24, 2000

Before WIENER, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Paul Selso Nuncio, convicted and sentenced to death for a

December 1993 capital murder, seeks a certificate of appealability

(COA) to appeal the denial of his federal habeas application.

DENIED.

I.

In affirming Nuncio’s conviction on direct appeal, the Texas

Court of Criminal Appeals described in detail the evidence

presented at the trial in 1995. Nuncio v. State, No. 72,121 (Tex.

Crim. App. 5 Feb. 1997)(unpublished). Our review of the record

confirms that there is ample evidentiary support for that

*
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this opinion should not be published and is not precedent except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.
description. A detailed summary of that evidence, drawn largely

from the Court of Criminal Appeals’ opinion, is necessary, however,

for consideration of Nuncio’s fact-intensive ineffective assistance

of counsel claims, including factors such as whether he knew right

from wrong at the time of the offense.

On 2 December 1993, Nuncio and six others (the group), each of

whom testified at trial, consumed alcoholic beverages in Plainview,

Texas. It was raining after midnight on 3 December; the group went

to the porch of the house owned and occupied by Pauline Farris.

Each group member testified that, although they made a good

deal of noise while there, they did not see any lights or hear any

sounds from inside the house. Nuncio attempted unsuccessfully to

“hot-wire” Farris’ car. When the rain subsided, all but Nuncio

left.

Between 2:00 and 3:00 a.m. on 3 December, Nuncio sold a

television to a guest at the Warrick Inn. When the purchaser

observed blood on Nuncio, he explained that he had been helping a

friend with some sheep. Nuncio returned to the purchaser’s room

about 45 minutes later with a camera, a stereo, and some rings; he

sold the camera and stereo for $20 and threw the rings in a trash

can. At the purchaser’s request, Nuncio gave him a written receipt

and confirmed his identity by showing his driver’s license and

writing the number on the receipt.

At approximately 4:25 a.m. on 3 December, after observing

Nuncio standing at a street corner, a Plainview Police Officer

asked for identification. Nuncio stated that he did not have any,

2
and misidentified himself as Joe Nuncio, from Frederick, Oklahoma.

Because Nuncio seemed disoriented and confused, the Officer

administered field sobriety tests, but concluded that Nuncio was

not intoxicated. At Nuncio’s request, the Officer took him to an

apartment complex.

Shortly thereafter, Nuncio encountered an acquaintance,

Brooks, and asked him to take him to “his house” to pick up a

television. In fact, Nuncio directed Brooks to Farris’ house,

where he picked up a television from the porch. Then, Nuncio had

Brooks take him to the Warrick Inn, where he attempted

unsuccessfully to sell the television. The prospective buyer

noticed blood on Nuncio.

Nuncio and Brooks next went to the Airport Motel. Between

5:00 and 5:30 a.m., Nuncio went to the room of Navarro and Ruiz;

both had been in the group. Navarro declined Nuncio’s invitation

to go drinking. Ruiz noted that Nuncio “was all drunk”.

About 6:30 a.m., Nuncio went to Lopez’s room at the Airport

Motel; Lopez was the daughter of Villalon, who had been in the

group. Nuncio offered to sell her the television; she told him to

come back later. Nuncio eventually sold it to a friend of

Villalon. Later, when Nuncio went back to Lopez’s room, she

confronted him about what appeared to be blood on his boot; Nuncio

did not respond, but simply stared at her and left. When Lopez

went to her mother’s room, Nuncio walked in and began cleaning his

boot, explaining that it had ketchup on it.

3
 Late that morning, Nuncio asked Lopez and her husband to take

him to Lubbock, Texas; they refused. Later that afternoon, Nuncio

told Villalon he needed money to leave town and was going to a loan

company. Nuncio applied for a $150 loan at the loan company,

stating he needed it for “newborn stuff”. When the loan officer

questioned him about that purpose, in the light of the fact that he

had written on the application that he was single, Nuncio admitted

that he wanted the money for a trip, but thought the loan would not

be approved for that purpose. When the loan officer discovered

that Nuncio was not employed by the employer listed on the loan

application, the loan was denied.

Earlier that day, Farris’ neighbors found her on her living

room floor. Her house had been ransacked. When investigators

arrived, they observed she was nude, lying face down. She was not

wearing any rings, and her bottom denture plate was lying several

feet from her body. The forensic pathologist who conducted the

autopsy testified that Farris (who was 61) had been sexually

assaulted and severely beaten, and died of asphyxia as a result of

manual strangulation.

On 5 December, Nuncio became a suspect. After police

recovered a television, identified the next day by Farris’

daughter, an arrest warrant was issued. He was arrested two days

later, after police found him hiding in a closet in a house in

Plainview.

At the police department, Nuncio voluntarily gave oral and

written statements in which he stated that: he was an addict; he

4
had been molested as a child; he was “messed up” on drugs and

alcohol the night of the murder and decided to break into Farris’

house to steal items he could sell to get money for more drugs; he

did not think anyone was in the house but, after he broke in, he

saw Farris and they began fighting; he hit and kicked her, knocking

her down until she no longer attempted to get up; he put two

televisions and a stereo on the front porch and some rings in his

pocket; he saw that Farris was naked and decided to “have sex” with

her; and he did not mean to kill her and did not know she was dead

until he heard about it later. A detective testified that Nuncio

was emotional and cried during his two-hour post-arrest interview.

In a consensual search, clothing and boots Nuncio wore on the

night of the murder were recovered. The DNA analysis of a blood

sample from a boot indicated a 98.8% probability of a match to

Farris’ blood.

At the guilt/innocence phase of trial, the jury, having been

instructed on the lesser-included offenses of murder, burglary of

a habitation, aggravated sexual assault, and robbery, convicted

Nuncio for capital murder.

At the punishment phase, the State presented evidence that

Nuncio had been convicted for felony theft in 1990 and had been

subsequently convicted for two misdemeanor thefts. Five law

enforcement officers testified that his reputation as a peaceable

and law-abiding citizen was bad. His probation officer testified

that Nuncio was a “sorry” probationer who was unable to maintain

5
employment; and that he was a dishonest, passive-aggressive type

who never learned to obey rules.

The justice of the peace who arraigned Nuncio for capital

murder testified that he appeared to think the arraignment was “a

comical situation, [a] very funny situation”. Two inmates

testified that, while in jail post-arrest, Nuncio watched a

television broadcast about Farris’ murder; when an inmate remarked

that whoever had killed her was going to be famous, Nuncio smiled

and said, “yeah, I’m going to be famous”.

Elsa Martinez, who lived with Nuncio for about three years and

had two children by him, testified that: Nuncio had a bad temper

when he was drunk; he had not visited their children since 1989;

and he had once struck her. A cousin and an acquaintance of Nuncio

testified that they had never known Nuncio to have had a steady

job.

In response to a hypothetical question based on the evidence,

the State’s expert witness, Dr. Coons, a forensic psychiatrist,

opined that: the hypothetical subject would take advantage of

weaker persons; was willing to engage in violent behavior to get

what he wanted; did not have a conscience with respect to theft,

lying, responsibility to family, sexual exploitation, rape, and

killing, and was cold and heartless; and, there was a significant

probability he would hurt someone else.

Smithey, a Texas Department of Criminal Justice investigator,

testified that: stealing is a major source of violence in prison;

inmates with violent histories are often recruited into prison

6
gangs; inmates can obtain drugs and alcohol; and an inmate with a

tendency to steal, who had been convicted of a violent, brutal

crime, and who tends to become violent when intoxicated, would

probably continue to commit acts of violence in prison. On cross-

examination, Smithey described statistics reflecting that 40% of

all capital murder defendants in prison had committed an act of

criminal violence while there; and that 25% of inmates sentenced to

death had committed acts of violence while in prison.

For the defense, Coke, a licensed drug and alcohol counselor,

testified that a substance abuse test performed on Nuncio revealed

addictions to alcohol and drugs. Dr. Taylor, a forensic

psychiatrist, testified that psychiatric evaluations were accurate

predictions of behavior only about a third of the time. Dr. Wall,

a clinical psychologist, testified that, on average, the accuracy

rate for predictions of future dangerousness tended to be about one

in eight, and were never better than one in three. Another

clinical psychologist, Dr. Quijano, testified that, based on a

review of his probation and jail records, Nuncio would do well in

prison; and that the Texas prison system had attempted to control

violence more effectively in recent years by improving the

classification of prisoners and reducing overcrowding.

One of Nuncio’s aunts testified that: he was neglected as a

child and had been placed in an orphanage for a time; and she had

never seen him do anything violent or aggressive. Another aunt

testified that: Nuncio’s stepfather was involved with drugs and

stealing; she had never known Nuncio to be aggressive; and his

7
father “has never been there for him”. Nuncio’s younger brother

testified that: he and Nuncio used marijuana at a young age; his

father’s second wife punished them by hitting them with a wire

hanger and then putting them in a closet; and Nuncio had been

sexually molested by his cousins.

In fixing punishment, the jury answered “yes” to the first

special issue: whether it found “from the evidence beyond a

reasonable doubt that there is a probability that the defendant

would commit criminal acts of violence that would constitute a

continuing threat to society”. It answered “no” to the second:

whether it found “from the evidence, taking into consideration all

of the evidence, including the circumstances of the offense, the

defendant’s character and background, and the personal moral

culpability of the defendant, that there is a sufficient mitigating

circumstance or circumstances to warrant that a sentence of life

imprisonment rather than a death sentence be imposed”. Therefore,

in March 1995, Nuncio was sentenced to death.

When Nuncio entered the penitentiary that August, he was

examined and found to have no mental illness. However, six to nine

months later, he was diagnosed by prison medical personnel as

paranoid schizophrenic. Later entries in his prison medical

records cast some doubt on that diagnosis; for example, in April

1997, he was diagnosed with no indication of schizophrenia, and

other records suggest possible malingering.

In early 1997, the Court of Criminal Appeals affirmed the

judgment and sentence on direct appeal. Nuncio v. State, No.

8
72,121 (Tex. Crim. App. 5 Feb. 1997) (unpublished). Nuncio did not

seek review by the United States Supreme Court.

That prior November, counsel had been appointed to represent

Nuncio in state habeas proceedings. The state application, filed

in August 1997, presented 19 claims, including ineffective

assistance of counsel for failure to investigate Nuncio’s

psychological history. The state trial court conducted an

evidentiary hearing in March 1998. That testimony, discussed

below, is the supporting evidence for this COA application. Once

again, a detailed description is required.

Hall, appointed to represent Nuncio on direct appeal,

testified that: when he met with Nuncio in May 1995, he noticed he

had a “nervous type of laugh” at inappropriate times; and he had

been concerned about Nuncio’s reported laughter during trial and at

arraignment. On cross-examination, he testified that: Nuncio

appeared to be competent when he met with him; he saw nothing to

suggest Nuncio was mentally ill, other than the way he laughed; he

did not see anything in the record to suggest Nuncio was insane at

the time of the offense, other than he had been sexually abused in

the past, had problems with the probation office, and had an

alcohol problem; and there was not much mitigating evidence

introduced at trial, but there “were a lot of things that could

have been looked into for mitigation”.

The justice of the peace who arraigned Nuncio for capital

murder, and who, as noted, had testified at the punishment phase,

testified at the evidentiary hearing that: at arraignment, Nuncio

9
had a “cocky” attitude and acted as though he thought it was a

comical, funny situation; but Nuncio understood the nature of the

charges against him.

The former Officer who had testified at trial about his

encounter with Nuncio on the night of the murder testified at the

evidentiary hearing that: Nuncio appeared dazed, confused, and

disoriented when he had first encountered him; but he had

concluded, based on field sobriety test results and the fact he did

not smell any alcohol, Nuncio was not intoxicated.

Stoffregen, Nuncio’s appointed trial counsel, testified that:

he had no pre-trial indication Nuncio was not competent; Nuncio was

not very helpful in communicating his memory of events on the night

of the murder; and, because he had difficulty obtaining expert

witnesses, he decided not to have Nuncio examined by a mental

health expert, because he did not want to “burn” an expert needed

to testify at the punishment phase. This meant, if the expert

examined Nuncio, the expert could not be called as a witness

regarding future dangerousness, because the State could discover

the examination results. Counsel admitted, however, he could have

tried to exclude the examination results through a motion in

limine, but was not sure such a tactic would have been successful.

On cross-examination by the State, Stoffregen testified that:

he had no indication before trial an insanity defense might be

available; he investigated Nuncio’s background by talking with his

family and obtaining school records and criminal history; and he

10
asked questions calculated to elicit information regarding mental

illness if it existed.

LaFont, appointed co-counsel for trial, testified that: he

had no difficulty communicating with Nuncio; he did not believe an

insanity defense was available; he interviewed Nuncio’s aunts,

brother, and mother, and inquired about Nuncio’s background; and

his questions should have resulted in disclosure of psychological

problems, had any existed. On cross-examination by the State,

LaFont testified he saw no reason to request that Nuncio be

examined for sanity or competency.

Coffman, a private investigator hired by Nuncio’s state habeas

counsel, testified that: he attempted to locate family members and

other witnesses who could testify about Nuncio’s mental history;

and he spoke with Cecelia Dominguez, who was married to Nuncio’s

father for 15 years, and received some information regarding the

possibility of Nuncio having talked to a counselor when he was

young, but Nuncio’s father did not know when the counseling took

place or anything about the counselor.

Nuncio’s father, who had not testified at trial, testified at

the evidentiary hearing that: Nuncio’s lawyers or investigators

did not talk to him prior to trial; he was not called to testify at

trial; he took Nuncio to a counselor when Nuncio was a child,

because he had problems with memory, learning, “hearing things”,

and “imagining stuff”; Nuncio had a hard time communicating with

people; Nuncio did not seem to have a good sense of what was right

or wrong; and Nuncio reminded him of a schizophrenic character in

11
a movie. On cross-examination, he admitted that: he heard about

Nuncio’s trial a few days before it started, but did not attend

because he had just begun a new job and could not afford to take

time off; and Nuncio’s brother and mother both knew about Nuncio

having visited a counselor and about the problems he had been

experiencing at that time.

Nuncio’s mother, who had testified during the punishment

phase, testified at the evidentiary hearing that: Nuncio’s lawyers

and investigators did not ask her about his having mental problems;

and she did not remember Nuncio having mental problems while he

lived with her. In fact, the Oklahoma Health Department records

about Nuncio’s counseling include a statement by Nuncio’s mother:

“Paul is a very smart [and] active boy. He does not have a hearing

or speech problem. He always tells me his problems [and] talks to

me.... Paul does mine [sic] me, his real mother but does not like

step-mother because she miss treats [sic] him”.

Cecelia Dominguez, married, as noted, to Nuncio’s father for

approximately 15 years, and who had not testified at trial,

testified at the evidentiary hearing that: Nuncio and his brother

came to live with her and the father when they were ages eight and

nine, and again in June 1980, when they were 10 and 11; she did not

attend trial; Nuncio’s lawyers and investigators never talked to

her; and she took Nuncio to a counselor three times when he was in

the fifth grade because he was having learning problems, was

hoarding food in his room, had a short attention span, and had

difficulty communicating.

12
 Four of the jurors from Nuncio’s trial testified that, if

there had been evidence Nuncio suffered from mental illness, they

would have considered it in reaching their verdict at the

punishment phase.

Dr. Wall, the forensic psychologist who had testified for

Nuncio at the punishment phase, testified at the evidentiary

hearing that: “[t]here most certainly was a possibility” Nuncio

was insane at the time of the offense; and he would have suggested

a psychological evaluation had he been aware of Nuncio’s Oklahoma

counseling, disorientation and confusion on the night of the

murder, behavior at arraignment, inappropriate smiling during jury

selection, and the statements by his father and stepmother

regarding his behavior as a child. On cross-examination, he

testified he could not say Nuncio was mentally ill at the time of

the offense, but only that there was a probability; and he had not

examined Nuncio.

Dr. Taylor, the psychiatrist who had testified for Nuncio at

the punishment phase, testified at the evidentiary hearing that:

he would have suggested a psychological or psychiatric evaluation

prior to trial, had he been aware of Nuncio’s Oklahoma counseling,

disorientation and confusion on the night of the murder, and

inappropriate behavior at arraignment and trial; and such

information would have been valuable for his mitigating evidence

testimony. On cross-examination, he testified that he could not

give an opinion on insanity, because he had not examined Nuncio and

did not have sufficient information about Nuncio and the crime.

13
 Dr. Quijano, the clinical psychologist who had testified for

Nuncio at the punishment phase, testified at the evidentiary

hearing that: prior to trial, he was not made aware of any issues

regarding insanity or mental health relating to mitigation; he

evaluated Nuncio approximately two years after the trial (April and

August 1997), and found he suffered from paranoid schizophrenia; it

was likely Nuncio was mentally ill at the time of the offense, but

he could not say with certainty whether Nuncio was legally insane

then; the offense report did not suggest Nuncio was insane; the

defense should have investigated Nuncio’s disorientation and

confusion on the night of the murder and his inappropriate

arraignment and trial behavior as possible symptoms of mental

illness; and there would have been a “richer presentation” of

mitigating evidence had Nuncio been examined pre-trial by a mental

health expert.

On cross-examination, he admitted that: before trial, he had

received copies of offense reports, jail records, and probation

records (including the report of Nuncio’s confusion and

disorientation on the night of the murder, and the “going to be

famous” jail-statement); Nuncio’s behavior on the night of the

murder (attempting to hot-wire Farris’ car, giving a false name to

the Officer, and systematically selling Farris’ property) showed he

was goal-oriented and knew right from wrong; there was nothing in

the Oklahoma counseling records to suggest Nuncio suffered from

mental illness; the Oklahoma records, Nuncio’s disorientation on

the night of the murder, and his inappropriate attitude at

14
arraignment, taken together, did not suggest mental illness; and,

when he examined Nuncio in 1997, Nuncio knew that the conduct for

which he had been convicted was wrong.

On redirect, Dr. Quijano testified he would have suggested a

mental examination if the information about Nuncio’s childhood

problems had been available to him pre-trial. On re-cross, he

stated he was not testifying an insanity defense was available, and

could not testify Nuncio did not know the difference between right

and wrong.

Dr. Coons, the forensic psychiatrist who had testified for the

State during the punishment phase, did likewise at the evidentiary

hearing — that: Nuncio’s behavior following the murder showed he

knew his conduct was wrong; an insanity defense had not been

available; and the Oklahoma records contained nothing indicating

the need for a psychiatric evaluation for an insanity defense. On

cross-examination, he testified that: if he were working for the

defense and had all of the information about Nuncio’s childhood

problems, he would bring up the possibility of a mental health

evaluation, but would warn defense counsel that, from a tactical

standpoint, it might develop information that would not be in the

best interest of the client.

Gonzales, a mitigation specialist appointed to assist Nuncio

pre-trial, testified that: Nuncio exhibited unusual behavior

during trial preparation and at trial, such as wanting to use a

Tejano music tape at trial and inappropriate laughter and smiling

at trial; and he did not interview Nuncio’s father or stepmother,

15
because he was directed elsewhere by Nuncio, but should have done

so, because it would have affected the outcome of the case. On

cross-examination, he acknowledged that having a capital murder

client evaluated by a mental health professional could be risky,

because the prosecution might be able to obtain information

damaging to the client.

Following the evidentiary hearing, the trial court entered

very detailed findings of fact and conclusions of law, recommending

that relief be denied. The Court of Criminal Appeals denied habeas

relief in September 1998, adopting the findings and conclusions.

Ex parte Nuncio, No. 38,356-01 (Tex. Crim. App. 23 Sept. 1998)

(unpublished).

In January 1999, the district court appointed the same

attorney who represented Nuncio in state habeas proceedings to

represent him in the federal proceedings; the federal petition was

filed that March. That May, the district court granted the State’s

summary judgment motion and denied habeas relief. A COA was denied

in June.

II.

Nuncio contends he is entitled to a COA because of ineffective

assistance of counsel at his trial’s guilt/innocence and punishment

phases. The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) applies, Nuncio having filed for federal habeas relief

after its effective date. See Green v. Johnson, 116 F.3d 1115,

1119-20 (5th Cir. 1997). Pursuant to AEDPA, “[u]nless a circuit

justice or judge issues a [COA], an appeal may not be taken to the

16
court of appeals from ... the final order in a habeas corpus

proceeding in which the detention complained of arises out of

process issued by a State court”. 28 U.S.C. § 2253(c)(1)(A).

To obtain a COA, Nuncio must “ma[k]e a substantial showing of

the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2)

(emphasis added). “A ‘substantial showing’ requires the applicant

to ‘demonstrate that the issues are debatable among jurists of

reason; that a court could resolve the issues (in a different

manner); or that the questions are adequate to deserve

encouragement to proceed further’”. Drinkard v. Johnson, 97 F.3d

751, 755 (5th Cir. 1996) (emphasis in original; quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)), cert. denied, 520 U.S. 1107

(1997), overruled in part on other grounds, Lindh v. Murphy, 521

U.S. 320 (1997).

Under AEDPA, we may not grant habeas relief

with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim—

(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was
based on an unreasonable determination of
the facts in light of the evidence
presented in the State court proceeding.

28 U.S.C. § 2254(d). Nuncio does not dispute that the state courts

adjudicated the merits of his claims; accordingly, the § 2254(d)

standards apply. Therefore, to obtain a COA, he must make the

17
requisite substantial showing that, in the light of those

standards, the state habeas court erred.

“[P]ure questions of law and mixed questions of law and fact

are reviewed under § 2254(d)(1), and questions of fact are reviewed

under § 2254(d)(2)”. Corwin v. Johnson, 150 F.3d 467, 471 (5th

Cir.), cert. denied, ___ U.S. ___, 119 S. Ct. 613 (1998).

Therefore, when reviewing a question of law, we defer to the state

court’s ruling unless its “decision rested on a legal determination

that was contrary to ... clearly established federal law as

determined by the Supreme Court”. Lockhart v. Johnson, 104 F.3d

54, 57 (5th Cir.) (internal quotation marks and citation omitted),

cert. denied, 521 U.S. 1123 (1997). Likewise, we “will not disturb

a state court’s application of law to facts unless the state

court’s conclusions involved an ‘unreasonable application’ of

clearly established federal law as determined by the Supreme

Court”. Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998)

(quoting 28 U.S.C. § 2254(d)(1)), cert. denied, ___ U.S. ___, 119

S. Ct. 1474 (1999). A state court’s “application of federal law is

unreasonable only when reasonable jurists considering the question

would be of one view that the state court ruling was incorrect”.

Id. at 812 (internal quotation marks and citation omitted). State

court factual findings are presumed correct unless rebutted by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Davis,

158 F.3d at 812.

18
 The ineffective assistance claims on which Nuncio premises his

COA request are governed by Strickland v. Washington, 466 U.S. 668

(1984):

First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant can
make 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.

Id. at 687 (emphasis added).

Whether counsel’s performance was deficient, including the

adequacy of his pretrial investigation and the reasonableness of a

particular strategic or tactical decision, and whether the

deficiency, if any, prejudiced the defense, are legal conclusions,

reviewed under § 2254(d)(1). See Moore v. Johnson, 194 F.3d 586,

604 (5th Cir. 1999) (applying pre-AEDPA law); Carter v. Johnson,

131 F.3d 452, 463 (5th Cir. 1997), cert. denied, 523 U.S. 1099

(1998) (applying pre-AEDPA law). But, “a state habeas court’s

determination that counsel conducted a pretrial investigation or

that counsel’s conduct was the result of a fully informed strategic

or tactical decision” are factual determinations reviewed under §

2254(d)(2). Moore, 194 F.3d at 604.

The state court applied Strickland. Nuncio does not contend

that, consistent with § 2254(d)(1), its decision is “contrary” to

19
Supreme Court precedent. Accordingly, in order to obtain a COA, he

must make a substantial showing that, pursuant to § 2254(d)(2), the

state court made “an unreasonable determination of the facts”, or

that, pursuant to § 2254(d)(1), its “application” of Strickland was

“unreasonable”.

The claimed substantial showing for the first ineffective

assistance prong, deficient performance, is based on three factors:

(1) the investigation was inadequate because counsel neither

interviewed Nuncio’s father and stepmother nor discovered his

Oklahoma counseling records; (2) counsel failed to obtain a

psychological evaluation of Nuncio and, as a result, did not

present an insanity defense at the guilt/innocence phase; and (3)

because of these first two deficiencies, counsel failed, at the

punishment phase, to present evidence of Nuncio’s mental health

history. The claimed substantial showing for the prejudice prong,

resulting from the claimed deficient performance, is that Nuncio

was prevented from: (1) presenting an insanity defense at the

guilt/innocence phase; and (2), at the punishment phase, using his

history of mental illness (a) to rebut the State’s future

dangerousness evidence, and (b) in mitigation.

A.

1.

Regarding the investigation, the state habeas court found

that: counsel thoroughly investigated Nuncio’s background and the

facts surrounding the commission of the offense; Nuncio understood

the nature of the charges against him and was able to communicate

20
with counsel about the case; and, based on interviews with Nuncio

and his answers regarding his prior mental health history, the

focus of the defense investigation was directed toward areas that

did not include mental health issues. The court concluded that

counsel did not render deficient performance by failing to

interview Nuncio’s father and stepmother and failing to discover

the Oklahoma records, because, in conducting their investigation,

they reasonably relied on the information Nuncio provided the

defense team.

Nuncio contends that these findings and conclusions are

unreasonable, asserting that the court’s reliance on trial

counsel’s evaluation of Nuncio was misplaced. Nuncio points to

trial counsel’s testimony that he had limited contact with Nuncio;

and that Nuncio did not communicate well and could only remember

parts of the night of the crime, as demonstrating that counsel

performed deficiently by basing the scope of his investigation on

information he obtained from Nuncio, and by failing to talk to his

father and stepmother, which would have led to discovery of the

Oklahoma records. Nuncio concedes that those records do not reveal

mental illness, but maintains that, pre-trial, had his experts been

made aware of them, they would have recommended a psychological

evaluation, which would have revealed his mental illness.

He contends further that his bizarre behavior (disorientation

and confusion on the night of the murder, inappropriate attitude at

arraignment, “going to be famous” jail-statement, inappropriate

smiling during trial, and insistence on using Tejano music then),

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and counsel’s awareness that Nuncio had been sexually abused as a

child, together with counsel’s knowledge that such abuse can lead

to mental illness, should have alerted counsel that Nuncio had

mental health problems which warranted further investigation and

evaluation by a mental health expert.

For this point, Nuncio has not made the requisite substantial

showing that the state court unreasonably determined counsel

performed an adequate investigation. The information Nuncio

provided to counsel and the investigator did not direct them to his

father or stepmother, or to any issues regarding his mental health;

and Nuncio did not inform counsel about the counseling. Moreover,

Nuncio’s father testified that Nuncio’s mother and brother, both of

whom testified at the punishment phase, were aware of that

counseling. They chose not to disclose that information to the

defense team, despite questioning by counsel and the investigator

designed to elicit it.

Because Nuncio appeared to the defense team to have a rational

understanding of the trial proceedings, neither counsel nor the

investigator had reason to doubt his depiction of his own history.

As the Supreme Court stated in Strickland:

The reasonableness of counsel’s actions may be
determined or substantially influenced by the
defendant’s own statements or actions.
Counsel’s actions are usually based, quite
properly, on informed strategic choices made
by the defendant and on information supplied
by the defendant. In particular, what
investigation decisions are reasonable depends
critically on such information. For example,
when the facts that support a certain
potential line of defense are generally known
to counsel because of what defendant has said,

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 the need for further investigation may be
considerably diminished or eliminated
altogether. And when a defendant has given
counsel reason to believe that pursuing
certain investigations would be fruitless or
even harmful, counsel’s failure to pursue
those investigations may not later be
challenged as unreasonable. In short, inquiry
into counsel’s conversations with the
defendant may be critical to a proper
assessment of counsel’s investigative
decisions, just as it may be critical to a
proper assessment of counsel’s other
litigation decisions.

Strickland, 466 U.S. at 691.

Likewise, the evidence does not provide the requisite

substantial showing that the state court unreasonably determined

counsel did not perform deficiently by failing, based on Nuncio’s

behavior, to recognize a possibility of mental problems. All three

of the attorneys appointed to represent him at trial and on direct

appeal testified at the evidentiary hearing that: he understood

the proceedings and was able to communicate with them; and they saw

no indication that an insanity defense might be available, or that

he might be mentally ill. As noted, Dr. Quijano testified at the

habeas evidentiary hearing that: despite being aware pre-trial of

Nuncio’s behavior on the night of the murder, of his jail-

statement, and of his attitude at arraignment, he did not suggest

defense counsel should investigate whether such behavior was a

symptom of mental illness; and those incidents, taken together, did

not suggest mental illness.

2.

The state habeas court found that counsel made a strategic

decision not to have Nuncio examined by one of the appointed mental

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health experts because counsel did not want to “burn” an expert who

could rebut the State’s psychiatric experts. It concluded that the

challenged decision was a reasonable trial strategy in the light of

Nuncio’s no mental health history representation and of counsel’s

knowledge of the effectiveness of the State’s psychiatrist.

Nuncio contends that these findings and conclusions are

unreasonable, because: trial counsel admitted at the habeas

evidentiary hearing he would not have had to “burn” one of the

experts; there were many available psychologists who could have

conducted an evaluation; and, even if counsel had used one of

Nuncio’s experts to evaluate him, he could have filed a motion in

limine, thus making it possible for that expert to testify without

fear that, on cross, damaging information would be revealed about

the evaluation. Relying on the testimony of Drs. Wall and Quijano

at the evidentiary hearing, Nuncio contends that, had an evaluation

been conducted, there is a “strong probability” his mental illness

would have been discovered.

Nuncio has not made the requisite substantial showing. His

selective references to trial counsel’s testimony do not portray

accurately counsel’s explanation for not having Nuncio examined by

one of his experts. Counsel acknowledged that, had he attempted to

have an evaluation conducted secretly, there was always a

possibility the State could find out about the examination, through

jail personnel or cross-examination. Moreover, Nuncio omits any

mention of the other reasons counsel chose not to have him

evaluated: Nuncio’s no history of mental problems representation;

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counsel’s observation of Nuncio, which revealed no hints of mental

illness; and counsel’s decision that all of the experts were needed

to rebut the testimony of the State’s expert psychiatrist, whom

counsel knew to be an effective witness.

In a related contention, Nuncio maintains that the state

habeas court’s conclusion that counsel made a reasonable and

informed strategic decision not to pursue an insanity defense is

unreasonable, because it is based on the erroneous assumption that

counsel made a thorough investigation, and overlooks counsel’s

concession that he had no defense. This challenged conclusion was

based on findings that: counsel was familiar with the insanity

defense and had raised it on behalf of other clients; after talking

to and observing Nuncio, and investigating his background and the

facts, counsel had no indication an insanity defense was available;

Nuncio’s behavior in committing the crime, his efforts to conceal

his identity, and the detail of his confession revealed he knew the

difference between right and wrong when he committed the crime; and

there was no evidence Nuncio was insane at the time of the offense.

Nuncio has not made the requisite substantial showing. There

is no evidence that an insanity defense was available to Nuncio.

He was not diagnosed with any mental illness until at least six

months after his conviction. Even after examining Nuncio twice in

1997, Dr. Quijano was unable to testify that Nuncio was legally

insane at the time of the crime. Moreover, Nuncio’s post-arrest

statement to the police, and his actions between the time of the

25
murder and arrest, establish, as conceded by Dr. Quijano, that he

knew his conduct had been wrong.

3.

The state habeas court found that counsel effectively

presented extensive mitigating evidence and, by use of expert

witnesses, family members, and cross-examination, competently

rebutted the State’s punishment evidence. It concluded that the

record did not support a conclusion that mental illness was

available as mitigating evidence.

Nuncio contends that these findings and conclusions are

unreasonable, asserting that they are based on the contested

conclusion that counsel conducted an adequate investigation and a

reliable evaluation of Nuncio. But, as discussed, he has not made

the requisite substantial showing in that regard. Accordingly, his

mitigating evidence claim likewise fails.

B.

Because Nuncio has not made the requisite substantial showing

concerning performance, we need not consider the prejudice prong.

See Strickland, 466 U.S. at 687. But, even assuming the requisite

showing for performance, he has not made a substantial showing that

the state court unreasonably determined his defense was not

prejudiced thereby.

The state habeas court concluded that Nuncio was not so

prejudiced, because it could not be established he suffered from a

mental illness until after his post-conviction admission to the

penitentiary.

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 1.

Nuncio contends that the fact that there was no defense

asserted at trial, together with the possibility that he was

insane, raises a question about the reliability of the result at

the guilt/innocence phase. But, as stated, there is no evidence he

was insane at the time of the offense; indeed, there is substantial

evidence, detailed supra, he knew his conduct had been wrong.

Accordingly, he was not prejudiced by the decision not to present

an insanity defense.

2.

Next, Nuncio maintains that deficient performance prejudiced

him at the punishment phase by preventing him from using his

claimed history of mental illness in mitigation and to rebut the

State’s future dangerousness evidence. He asserts that, had such

evidence been presented, there is a reasonable probability the jury

would have answered the special issue on mitigation differently.

And, noting that the State portrayed his bizarre, inappropriate

behavior as evidence of his guilty conscience and lack of remorse,

he maintains there is a reasonable probability the jury would have

answered the future dangerousness special issue differently, had

that evidence been rebutted by mental illness evidence, which could

have been used to explain his bizarre behavior as a symptom of his

illness, rather than as evidence of his lack of conscience.

Nuncio has not made the requisite substantial showing that he

was prejudiced in this regard at the punishment phase. Trial

counsel presented the testimony of three mental health experts

27
(Drs. Ross, Taylor, and Quijano) to rebut the State’s future

dangerousness evidence. And, counsel presented substantial

mitigating evidence, including Nuncio’s remorse, parental neglect,

time in an orphanage, mistreatment by one of his stepmothers,

addiction to drugs and alcohol and intoxication at the time of the

offense, and possible sexual abuse as a child. Moreover, as the

state habeas court ruled, the evidence did not support a conclusion

that, pre-conviction, Nuncio suffered from a mental illness.

III.

Because Nuncio has not made the requisite substantial showing

regarding claimed ineffective assistance of counsel at trial, a COA

is

DENIED.

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