United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 17, 2004
_____________________
Charles R. Fulbruge III
No. 03-41059 Clerk
_____________________
VIRGIL EURISTI MARTINEZ,
Petitioner - Appellant,
versus
DOUG DRETKE,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Galveston
District Court Cause No. 02-CV-718
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PER CURIAM.
Petitioner Virgil Euristi Martinez was convicted of capital
murder in Texas state court and sentenced to death. After
exhausting his state remedies, Martinez applied for federal
habeas relief. The district court denied Martinez’s application
for a writ of habeas corpus, but it granted Martinez a
certificate of appealability for his ineffective assistance of
counsel claim. After considering that claim on appeal, this
1
Pursuant to 5TH CIRCUIT RULE 47.5, this court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
court vacates the portion of the district court’s judgment that
rejects Martinez’s ineffective assistance of counsel claim and
remands the case for development of the record on that claim.
Background for this Appeal
A jury convicted Martinez of murdering his ex-girlfriend,
Veronica Fuentes; Veronica’s two children, five-year-old Joshua
and three-year-old Cassandra; and bystander John Gomez. During
the sentencing portion of Martinez’s trial, the State of Texas
presented the testimony of several witnesses to establish
Martinez’s future dangerousness. Martinez’s lawyers, however,
called only one witness, Dr. Anand Mehendale. Dr. Mehendale, a
neurologist from Kerrville State Hospital, testified that
Martinez’s EEG indicated an epileptic focus in the right temporal
lobe of Martinez’s brain and that epilepsy can cause amnesia
during a seizure. Dr. Mehendale indicated that a person having a
seizure cannot engage in planned activity. After hearing this
evidence, the jury determined a probability existed that Martinez
would commit criminal acts of violence that would constitute a
continuing threat to society and that insufficient mitigating
circumstances existed to warrant a sentence of life imprisonment
rather than death.2 Accordingly, the state trial court entered a
judgment sentencing Martinez to death by lethal injection.
2
See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2 (Vernon Supp.
2004) (setting forth issues that jury must consider during
punishment phase of capital case in Texas).
2
During his state habeas proceeding, Martinez argued that his
trial attorneys were ineffective because they did not fully
investigate his epilepsy as a mitigating factor. Martinez
contended that evidence of his condition “would have rebutted the
State’s case of future dangerousness, provided the jury with a
vehicle to spare his life, both in terms of future dangerousness
and mitigation, and provided an explanation for [his] behavior
and violent crime.” Without conducting a hearing, the state
habeas judge determined that the attorneys’ performance did not
fall below an objective standard of reasonableness. After
reviewing the record and the habeas judge’s findings, the Texas
Court of Criminal Appeals denied Martinez’s application for
habeas relief.
Considering the same claim, the district court agreed that
trial counsel’s performance during the punishment phase of
Martinez’s trial did not fall below professional norms and denied
Martinez’s application for federal habeas relief. Although not
explicitly stated in its order, the district court implicitly
determined the state court’s disposition of the claim was not an
unreasonable application of clearly established federal law. The
district court did not conduct a hearing.
Standard of Review
In a habeas corpus appeal, this court reviews the district
court’s findings of fact for clear error and its conclusions of
3
law de novo, applying the same standards to the state court’s
decision as did the district court.3 This court may not grant
relief on a claim that a state court has adjudicated on the
merits “unless the adjudication of the claim . . . 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.”4 “A state court's
decision is deemed ‘contrary to’ clearly established federal law
if it relies on legal rules that directly conflict with prior
holdings of the Supreme Court or if it reaches a different
conclusion than the Supreme Court on materially indistinguishable
facts.”5 “A state court's decision constitutes an unreasonable
application of clearly established federal law if it is
objectively unreasonable.”6 This court presumes the state
court’s findings of fact are correct, and the petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence.7
Martinez’s Ineffective Assistance of Counsel Claim
On appeal, Martinez maintains that the decisions of the
3
See Busby v. Drekte, 359 F.3d 708, 713 (5th Cir. 2004).
4
28 U.S.C. § 2254(d)(1).
5
Busby, 359 F.3d at 713 (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)).
6
Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir. 2003).
7
See 28 U.S.C. § 2254(e)(1).
4
state habeas court and the district court were unreasonable
applications of Strickland v. Washington8 because the decisions
assumed that the strategy of defense counsel was reasonable even
though that strategy was based on unreasonably inadequate
investigation. Martinez contends that his trial attorneys were
ineffective during the punishment phase of his trial because they
failed to investigate his disease, temporal lobe epilepsy.
Martinez maintains that if his attorneys had investigated the
nature of temporal lobe epilepsy, they would have learned about
its impact on aggression and violence. According to Martinez, a
reasonable probability exists that at least one juror would have
considered the disease as a mitigating circumstance warranting a
sentence of life imprisonment rather than death. Martinez
contends that his lawyers simply gave up on the punishment phase
of trial without considering the impact of his disease.
To establish ineffective assistance of counsel under
Strickland, a criminal defendant must show that his attorney’s
assistance was deficient and that the deficiency prejudiced him.9
“To establish deficient performance, a petitioner must
demonstrate that counsel's representation ‘fell below an
8
Strickland v. Washington, 466 U.S. 668 (1984).
9
See Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.),
cert. denied, 124 S. Ct. 430 (2003).
5
objective standard of reasonableness.’”10 This court’s primary
concern in deciding whether defense counsel exercised reasonable
professional judgment is not whether counsel should have
presented a mitigation case, but rather whether the investigation
supporting counsel's decision not to introduce mitigating
evidence of the defendant’s background was itself reasonable.11
“In any ineffectiveness case, 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."12 After applying these principles to
Martinez’s claim, this court concludes that the record is not
sufficiently developed regarding the adequacy of the
investigation into Martinez’s epilepsy to resolve Martinez’s
claim.
To support his complaint that his attorneys did not fully
investigate his condition, Martinez relies, in part, on an
affidavit by Dr. Theodore Pearlman which Martinez first presented
to the state habeas judge. One of Martinez’s trial attorneys,
Jeri Yenne, sought Dr. Pearlman’s assistance in determining
Martinez’s competency to stand trial, the viability of an
insanity defense, and Martinez’s potential for future
10
See Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)(quoting
Strickland).
11
See Wiggins, 123 S. Ct. at 2536.
12
Strickland, 466 U.S. at 690.
6
dangerousness. In his affidavit, Dr. Pearlman attests that
“never have I been presented with such tangible evidence
supporting a diagnosis of Epilepsy related to criminal behavior.”
Dr. Pearlman explained that if he had testified during the
punishment phase of Martinez’s trial, he would have explained
that:
individuals with [temporal lobe epilepsy], even
individuals who seem to behave seemingly deliberately,
are pathologically driven by seizure activity occurring
in the brain.... An attack of [temporal lobe epilepsy]
does not necessarily cause total lack of consciousness.
There might be a narrowing of full awareness during an
attack, impairing the ability to think and act
normally. While an episode of [temporal lobe epilepsy]
is not exclusive of some degree of willful behavior,
[temporal lobe epilepsy] diminishes capacity for full
responsibility.
This information could be important mitigation evidence because
it suggests that Martinez may have acted with diminished capacity
and could have provided the jury with an explanation for why he
committed his crime. The record, however, does not confirm how
much of this information Yenne learned in her investigation.
Although Martinez’s habeas attorney stated in the state
habeas application that Dr. Pearlman reported to Yenne that
Martinez suffered from temporal lobe epilepsy, Dr. Pearlman’s
report is not part of the record. Instead of indicating that Dr.
Pearlman reported that Martinez suffers from temporal lobe
epilepsy, Yenne’s notes state that: Dr. Pearlman found that
Martinez was competent to stand trial, but insane at the time of
the murders; Dr. Pearlman explained that the outreach center had
7
been correct in its initial finding that Martinez did not use
drugs; Dr. Pearlman believed that Kerrville Hospital mis-
diagnosed Martinez and gave him a medication which aggravated his
seizures; and Dr. Pearlman opined that future dangerousness was
highly unlikely. But Yenne’s notes do not include Dr. Pearlman’s
diagnosis. Thus, it is impossible to confirm whether Dr.
Pearlman advised Yenne that Martinez suffers from temporal lobe
epilepsy or whether Dr. Pearlman’s report should have triggered
further investigation.
Martinez also relies on a habeas affidavit by Dr. Mehendale,
the neurologist who testified during the punishment phase of
trial. Martinez presented the affidavit to the state habeas
judge. Although his trial testimony did not address this aspect
of Martinez’s epilepsy, Dr. Mehendale attested in his affidavit
that:
while [Martinez] may not have been experiencing a
seizure while he was allegedly committing acts of
murder, [temporal lobe epilepsy] definitely played a
role in [Martinez’s] aggression. Patients with
[temporal lobe epilepsy] are odd, bizarre patients and
there are significant intercital abnormalities of a
psychiatric nature in these patients. If [Martinez] had
been diagnosed and treated as epileptic while he was
still a child, [Martinez] would have had stable brain
functioning. This would have reduced his chances of
progressive personality deterioration that can
occasionally occur in patients with [temporal lobe
epilepsy]. With proper diagnosis and management...,
[Martinez’s] propensity for committing acts of murder
would be somewhat diminished.
This information could be important mitigation evidence because
it suggests that Martinez suffers from personality deterioration
8
and may not have committed his crime if he had been treated as a
child. It also suggests that Martinez might not commit future
acts of violence if he received treatment. But as with Dr.
Pearlman’s affidavit, the record does not confirm how much of
this information Yenne learned in her investigation.
Instead of indicating that Dr. Mehendale believed temporal
lobe epilepsy caused Martinez to act aggressively, Yenne’s
interview notes reflect that Dr. Mehendale advised her that an
EEG indicated Martinez suffered from a seizure disorder and that
Martinez’s drug test did not indicate drug use. Yenne’s notes,
however, do not indicate whether Dr. Mehendale told her that
Martinez suffered from temporal lobe epilepsy or about its
potential for causing aggressive behavior. Although it is clear
that Yenne knew Martinez suffered from some type of seizure
disorder, it is impossible to determine whether Dr. Mehendale
told Yenne that Martinez suffers from temporal lobe epilepsy or
about its effect on aggressive behavior.
Martinez further relies on his educational records. These
records reflect that Martinez experienced learning difficulties
in school that may have resulted from mental problems, that
Martinez had average intelligence, and that he was often
disruptive in class. This information could be important
mitigation evidence because it supports Dr. Pearlman’s assessment
of an impaired ability to act normally and Dr. Mehendale’s
description of a progressive personality disorder. Yenne’s
9
notes, however, do not indicate whether she read the school
records and considered how Martinez’s behavioral problems might
be related to what she learned from Dr. Pearlman and Dr.
Mehendale, or whether she simply forwarded the records to Dr.
Pearlman for evaluation. Because the record reflects only that
Yenne obtained the records and forwarded them to Dr. Pearlman, it
is impossible to determine whether Yenne investigated how the
records might serve as mitigation evidence.
Martinez also relies on the affidavits that his trial
attorneys submitted to the state habeas judge. The state habeas
judge instructed the attorneys to file affidavits that responded
to Martinez’s allegation that they “[f]ailed to recognize Complex
Partial Seizure Disorder and/or Temporal Lobe Epilepsy as a
mitigating factor.” Despite this specific instruction, Yenne
explained little in her affidavit. In regard to mitigation,
Yenne explained that she and co-counsel, Stan McGee, concluded
that “if we forwarded any information concerning other good acts
performed by the defendant or character [sic] this would open the
door to other witnesses as to his bad character and it was not
worth the same.” Yenne did not address whether she learned that
Martinez suffers from temporal lobe epilepsy or whether she
considered using Martinez’s epilepsy as mitigation evidence
during the punishment phase of trial.
McGee’s affidavit is somewhat more detailed, but
nevertheless unhelpful. McGee attested that:
10
it appeared to me that we were pursuing a defense of
mistaken identity, among others, that [Martinez’s]
statements to the court appointed experts may have been
admissible as a result of the introduction of evidence
concerning issues of learning problems, mental
disabilities, and a claim of mitigation. As to a
failure to develop a defense to the State’s arguments
for future dangerousness, I cannot say that we did not
do that.
Notably, McGee does not indicate what he and Yenne knew about
Martinez’s epilepsy or whether they considered the condition as
mitigating evidence. As a result, it is impossible to ascertain
whether the attorneys investigated Martinez’s epilepsy condition.
Without having some indication of what Yenne and McGee knew
about Martinez’s condition, and what they did to investigate the
condition, the district court lacked the evidence needed to
determine whether the investigation supporting the decision not
to use evidence of Martinez’s condition during the punishment
phase of trial was reasonable,13 or whether the decision not to
investigate further was reasonable.14 To make those
determinations, the district court needed evidence that is beyond
the present record. Where the petitioner's allegations cannot be
resolved without examining evidence beyond the record, the
district court should conduct a hearing.15 An evidentiary
hearing is required where a state habeas petitioner did not
13
See Wiggins, 123 S. Ct. at 2536.
14
Strickland, 466 U.S. at 690.
15
See Byrne v. Butler, 845 F.2d 501, 512 (5th Cir. 1988).
11
receive a state court hearing and alleges facts which, if proved,
would entitle him to relief, and the record reveals a genuine
factual dispute as to the alleged facts.16
In his application for federal habeas relief, Martinez
alleged that Dr. Pearlman’s report “brimmed with mitigating
information,” but that “[t]here is no evidence in the attorney’s
files that the mitigating evidence provided by [Dr.] Pearlman was
recognized by either trial attorney.” Martinez further asserted
that although testimony was available from both Dr. Pearlman and
Dr. Mehendale that he suffered from temporal lobe epilepsy, and
that both doctors agreed that temporal lobe epilepsy caused some
of his aggression, his attorneys failed to recognize, develop and
introduce the mitigating evidence these doctors offered. These
allegations, if proved, would entitle Martinez to relief because
it would have given the jury an explanation for Martinez’s crime.
In addition, the record reveals a genuine factual dispute as to
the allegations – that is, did Martinez’s attorneys know about
his condition; if so, what did they do to investigate the nature
of his condition and to develop it as mitigating evidence?
The district court should have conducted an evidentiary
hearing to determine whether Martinez’s attorneys undertook any
strategic calculation or informed balancing about presenting
temporal lobe epilepsy as mitigating evidence. Because the
16
See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000);
see also Townsend v. Sain, 372 U.S. 293, 312-13 (1963).
12
district court did not conduct a hearing, this court VACATES that
portion of the district court’s judgment that addresses
Martinez’s ineffective assistance of counsel claim based on the
failure of his attorneys to investigate temporal lobe epilepsy as
mitigating evidence, and REMANDS the case to the district court
with instructions to conduct an evidentiary hearing on that
issue. Following the hearing, the district court should consider
whether counsel’s investigation of Martinez’s temporal lobe
epilepsy was unreasonably deficient and, if so, whether counsel’s
failure to investigate this condition and produce evidence
relating to it amounted to ineffective assistance of counsel.
VACATED and REMANDED.
13