Carlos Trevino v. Lorie Davis, Director

Case: 15-70019 Document: 00513587138 Page: 1 Date Filed: 07/11/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-70019 FILED
July 11, 2016

CARLOS TREVINO, Lyle W. Cayce
Clerk
Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court
for the Western District of Texas

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Carlos Trevino (“Trevino”) seeks a certificate of appealability (“COA”) to
appeal the district court’s dismissal, on the pleadings and without an
evidentiary hearing, of his habeas corpus petition under 28 U.S.C. § 2254,
claiming that he was deprived his Sixth Amendment right to effective
assistance of counsel when his trial counsel allegedly failed to adequately
investigate and present mitigation evidence at the punishment phase of his
capital murder trial. The district court held that Trevino’s claim is procedurally
barred, even under Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182
L.Ed.2d 272 (2012), and Trevino v. Thaler, –––U.S. ––––, 133 S. Ct. 1911, 185
 Case: 15-70019 Document: 00513587138 Page: 2 Date Filed: 07/11/2016

No. 15-70019
L. Ed. 2d 1044 (2013), because Trevino failed to sufficiently allege that his
initial state habeas counsel rendered ineffective assistance. In the alternative,
the district court held that his claim must be dismissed on the merits because
the new mitigating evidence Trevino seeks to develop and admit, which the
district court characterized as “double-edged,” could not outweigh the
substantial aggravating evidence.
Trevino seeks a COA, arguing that reasonable jurists could debate
whether the district court properly dismissed his claims on the pleadings and
whether it erred by failing to hold an evidentiary hearing. For the reasons set
out below, we conclude that reasonable jurists could debate whether the
district court correctly dismissed his habeas claim with respect to potential
evidence of his fetal alcohol syndrome (“FAS”) or, more broadly, fetal alcohol
spectrum disorder (“FASD”). Indeed, reasonable jurists would agree that the
district court erred in prematurely dismissing that claim. We also conclude
that no reasonable jurist could debate whether the district court erred in
dismissing his habeas claim with respect to his additional character witness
testimony that is not relevant to an FASD diagnosis or whether the district
court erred by failing to hold an evidentiary hearing before its dismissal on the
pleadings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This is the second time this case has come before us and the first in which
we reach beyond the procedural default issue to address the merits. Trevino
contends that if his trial counsel had conducted a constitutionally sufficient
investigation, he not only would have located more witnesses to testify about
his character but also would have been able to discover and introduce evidence

2
 Case: 15-70019 Document: 00513587138 Page: 3 Date Filed: 07/11/2016

No. 15-70019
that Trevino suffers from FASD. The background is set out more fully in the
prior opinions in this case, 1 but we summarize them here for convenience.
A. TRIAL 2

Trevino was convicted for the June 9, 1996 gang rape and murder of 15-
year-old Linda Salinas in San Antonio, Texas. One of the other participants,
Juan Gonzales (Trevino’s cousin), testified on behalf of the prosecution that he
was with the group that night, though he walked away briefly during the
murder. He testified that although Trevino did not rape Salinas himself, he
held her down while another participant raped her; that Trevino encouraged
Gonzales to rape her (though Gonzales refused); that Trevino discussed the
need to get rid of Salinas as a witness; and that Trevino later appeared with
blood on his shirt. Gonzales also testified that Trevino bragged after the
murder that he had “learned how to kill in prison” and “learned how to use a
knife in prison.” Thus, although Gonzales did not witness the murder itself, he
presented substantial testimony of Trevino’s involvement in the crime.
Salinas’s body was discovered the day after her murder, and an autopsy
revealed that she suffered two stab wounds to her neck, one of which was fatal,
as well as other injuries consistent with sexual assault. The prosecution
presented this autopsy evidence at Trevino’s trial. The prosecution also
presented testimony from forensic and DNA experts establishing that fibers
found on Salinas’s clothing were consistent with fibers from Trevino’s slacks
and that Trevino’s DNA could not be excluded as a source of DNA found in
Salinas’s panties.

1 See Trevino v. Thaler, 678 F. Supp. 2d 445, 467-71 (W.D. Tex. 2009), aff’d, 449 F.
App’x 415 (5th Cir. 2011), vacated and remanded, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013),
and the district court’s subsequent opinion at Trevino v. Stephens, No. CIV. SA-01-CA-306-
XR, 2015 WL 3651534 (W.D. Tex. June 11, 2015).
2 The facts in this section come from our previous opinion. See 449 F. App’x at 416-18.

3
 Case: 15-70019 Document: 00513587138 Page: 4 Date Filed: 07/11/2016

No. 15-70019
Based on this and other evidence, the jury returned a guilty verdict.
During the punishment phase, the prosecution presented substantial evidence
regarding Trevino’s culpability and future dangerousness, including his former
arrests and admitted membership in a violent street gang. Trevino’s state trial
counsel called only one witness, Trevino’s aunt, who testified generally about
his rough childhood and his mother’s alcoholism. Her testimony, comprising
approximately five pages, made up the entirety of his mitigation case.
At the conclusion of the punishment phase, the jury found (1) that he
constituted a future risk of dangerousness, (2) that he had actually caused the
death of Salinas or, if he did not actually cause her death, that he intended to
kill her or another, or anticipated a loss of life, and (3) that there were
insufficient mitigating circumstances to warrant a sentence of life
imprisonment. In accordance with the verdict, the state trial court imposed a
sentence of death.
B. POST-CONVICTION PROCEEDINGS

The Supreme Court summarized the post-conviction proceedings, which
are central to this COA application, as follows:
Eight days later the judge appointed new counsel to handle
Trevino’s direct appeal. Seven months after sentencing, when the
trial transcript first became available, that counsel filed an appeal.
The Texas Court of Criminal Appeals then considered and rejected
Trevino’s appellate claims. Trevino’s appellate counsel did not
claim that Trevino’s trial counsel had been constitutionally
ineffective during the penalty phase of the trial court proceedings.

About six months after sentencing, the trial judge appointed
Trevino a different new counsel to seek state collateral relief. As
Texas’ procedural rules provide, that third counsel initiated
collateral proceedings while Trevino’s appeal still was in progress.
This new counsel first sought postconviction relief (through
collateral review) in the trial court itself. After a hearing, the trial
court denied relief; and the Texas Court of Criminal Appeals
affirmed that denial. Trevino’s postconviction claims included a
4
Case: 15-70019 Document: 00513587138 Page: 5 Date Filed: 07/11/2016

No. 15-70019
claim that his trial counsel was constitutionally ineffective during
the penalty phase of Trevino’s trial, but it did not include a claim
that trial counsel’s ineffectiveness consisted in part of a failure
adequately to investigate and to present mitigating circumstances
during the penalty phase of Trevino’s trial. [See] Wiggins v. Smith,
539 U.S. 510, 523, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)
(counsel’s failure to investigate and present mitigating
circumstances deprived defendant of effective assistance of
counsel).

Trevino then filed a petition in federal court seeking a writ of
habeas corpus. The Federal District Court appointed another new
counsel to represent him. And that counsel claimed for the first
time that Trevino had not received constitutionally effective
counsel during the penalty phase of his trial in part because of trial
counsel’s failure to adequately investigate and present mitigating
circumstances during the penalty phase. App. 438, 456–478.
Federal habeas counsel pointed out that Trevino’s trial counsel
had presented only one witness at the sentencing phase, namely
Trevino’s aunt. The aunt had testified that Trevino had had a
difficult upbringing, that his mother had an alcohol problem, that
his family was on welfare, and that he had dropped out of high
school. She had added that Trevino had a child, that he was good
with children, and that he was not violent. Id., at 285–291.

Federal habeas counsel then told the federal court that Trevino’s
trial counsel should have found and presented at the penalty phase
other mitigating matters that his own investigation had brought
to light. These included, among other things, that Trevino’s mother
abused alcohol while she was pregnant with Trevino, that Trevino
weighed only four pounds at birth, that throughout his life Trevino
suffered the deleterious effects of Fetal Alcohol Syndrome, that as
a child Trevino had suffered numerous head injuries without
receiving adequate medical attention, that Trevino’s mother had
abused him physically and emotionally, that from an early age
Trevino was exposed to, and abused, alcohol and drugs, that
Trevino had attended school irregularly and performed poorly, and
that Trevino’s cognitive abilities were impaired. Id., at 66–67.

The federal court stayed proceedings to permit Trevino to raise
this claim in state court. The state court held that because Trevino
had not raised this claim during his initial postconviction
5
 Case: 15-70019 Document: 00513587138 Page: 6 Date Filed: 07/11/2016

No. 15-70019
proceedings, he had procedurally defaulted the claim, id., at 27–
28; and the Federal District Court then denied Trevino’s
ineffective-assistance-of-trial-counsel claim, id., at 78–79. The
District Court concluded in relevant part that, despite the fact that
“even the most minimal investigation . . . would have revealed a
wealth of additional mitigating evidence,” an independent and
adequate state ground (namely Trevino’s failure to raise the issue
during his state postconviction proceeding) barred the federal
habeas court from considering the ineffective-assistance-of-trial-
counsel claim. Id., at 131–132. See Coleman v. Thompson, 501 U.S.
722, 729–730, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).

Trevino appealed. The Fifth Circuit, without considering the
merits of Trevino’s ineffective-assistance-of-trial-counsel claim,
agreed with the District Court that an independent, adequate
state ground, namely Trevino’s procedural default, barred its
consideration. 449 Fed. Appx., at 426. 3

In 2011, when the panel decided Trevino’s appeal, there was no
applicable exception to the procedural default rule under any state habeas
scheme. In 2012, however, the Supreme Court decided Martinez, which held
that a federal habeas petitioner was not barred from asserting an ineffective-
assistance-of-trial-counsel claim if (1) the state habeas scheme (such as
Arizona’s in Martinez) required a defendant convicted at trial to raise that
claim during his first state habeas proceeding, and (2) defendant’s counsel
during his initial state habeas proceeding was ineffective. Trevino filed a
petition for a writ of certiorari, seeking a determination that the Martinez rule
should also apply to the Texas habeas scheme. The Supreme Court explained
that although the Texas scheme did not require a defendant to raise an
ineffective-assistance-of-trial-counsel claim in his first state habeas
proceeding, the result should be the same:
[W]e believe that the Texas procedural system—as a matter of its
structure, design, and operation—does not offer most defendants a

3 Trevino, 133 S. Ct. at 1915-16 (emphasis in original).
6
 Case: 15-70019 Document: 00513587138 Page: 7 Date Filed: 07/11/2016

No. 15-70019
meaningful opportunity to present a claim of ineffective assistance
of trial counsel on direct appeal. What the Arizona law prohibited
by explicit terms, Texas law precludes as a matter of course. And,
that being so, we can find no significant difference between this
case and Martinez. The very factors that led this Court to create a
narrow exception to Coleman in Martinez similarly argue for the
application of that exception here. 4

Thus, the Court applied the rule of Martinez to Texas’ scheme for post-
conviction relief, i.e.: “[A] procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 5 Accordingly, it remanded to the Fifth Circuit:
Given this holding, Texas submits that its courts should be
permitted, in the first instance, to decide the merits of Trevino’s
ineffective-assistance-of-trial-counsel claim. We leave that matter
to be determined on remand. Likewise, we do not decide here
whether Trevino’s claim of ineffective assistance of trial counsel is
substantial or whether Trevino’s initial state habeas attorney was
ineffective.

For these reasons we vacate the Fifth Circuit’s judgment and
remand the case for further proceedings consistent with this
opinion. 6

We remanded to the district court as follows:
In light of the Supreme Court’s decision in Trevino v. Thaler, –––
U.S. ––––, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), we remand
to the district court for full reconsideration of the Petitioner’s
ineffective assistance of counsel claim in accordance with both
Trevino and Martinez v. Ryan, –––U.S. ––––, 132 S. Ct. 1309, 182
L. Ed. 2d 272 (2012). If the Petitioner requests it, the district court

4 Id. at 1921.
5 Id. at 1921 (quoting Martinez, 132 S. Ct. at 1320).
6 Id.

7
 Case: 15-70019 Document: 00513587138 Page: 8 Date Filed: 07/11/2016

No. 15-70019
may in its discretion stay the federal proceeding and permit the
Petitioner to present his claim in state court. 7

C. DISTRICT COURT PROCEEDINGS ON REMAND

On remand, the district court, in April to July 2014, “granted Petitioner’s
multiple requests for additional time to investigate and develop Petitioner’s
remaining claims for relief and authorized Petitioner to expend resources in
excess of the statutory cap set forth in 18 U.S.C. Section 3599(g) (2) for
investigative and expert assistance.” 8 On November 13, 2014, the district court
held a status conference concerning pending motions, 9 and it entered an order
granting in part Trevino’s motions for additional time and for expert funding
that same day, which reads, in part:
After hearing arguments from both parties, for the reasons
discussed at length during the hearing, the parties are directed to
file amended pleadings designed to clarify the issues remaining in
this cause and Petitioner should be permitted to proceed with
some, but not all, of the expert examination of Petitioner requested
in the motion for expert assistance. Once the parties have clarified
their positions and the issues are more focused, the Court will hold
another hearing to ascertain how best to proceed with the
remainder of this cause. 10

On February 2, 2015, Trevino filed his second amended federal habeas
petition, and the state filed its response on May 26, 2015.
On June 11, 2015, without holding a hearing or otherwise alerting the
parties to its impending decision, the district court sua sponte issued its 36-
page memorandum opinion and order, based on the pleadings, denying all

7 Trevino v. Stephens, 740 F.3d 378 (5th Cir. 2014).
8 Trevino v. Stephens, No. CIV. SA-01-CA-306-XR, 2015 WL 3651534, at *1 (W.D. Tex.
June 11, 2015) (citations omitted).
9 See Minutes of Civil Proceedings, Docket Number SA-01-CA-306-XR, ECF Doc. 137

(Nov. 13, 2014).
10 See Order Granting in Part Motion for Expert Funding and Setting New Filing

Deadlines, Docket Number SA-01-CA-306-XR, ECF Doc. 138 (Nov. 13, 2014).
8
 Case: 15-70019 Document: 00513587138 Page: 9 Date Filed: 07/11/2016

No. 15-70019
relief under the second amended habeas petition and denying a COA. 11 The
court noted that it had rejected all five claims presented in Trevino’s first
amended habeas petition on the merits and had alternatively held that two of
them were procedurally defaulted, including the ineffective-assistance-of-trial-
counsel claim now presented in his second amended petition. 12 In its new order,
it reasoned that Trevino failed to show cause for excusing his procedural
default even under Martinez/Trevino, but even if he could overcome the
procedural default, his claim would still be subject to dismissal on the merits
because none of the “new” mitigating evidence referred to in the second
amended petition changed the district court’s analysis set out in its earlier
opinion, as discussed below.
1. MARTINEZ/TREVINO ISSUE

With respect to the Martinez/Trevino issue, the district court concluded
that Trevino still had failed to overcome the procedural default bar.
Specifically, it held that Trevino failed to sufficiently allege that his state
habeas counsel was ineffective, on the ground that the evidence at issue was
not available to the first state habeas counsel at the time. 13 The court explained
that none of the “new” mitigating evidence (including testimony from Trevino’s
mother and evidence about his background and history) had been gathered by
his state trial counsel. 14 The district court reasoned that Trevino’s state habeas
counsel
cannot reasonably be faulted, much less declared “ineffective,” for
failing to develop and present an ineffective assistance claim
during Petitioner’s initial state habeas corpus proceeding
premised upon “new” mitigating evidence absent some showing
this “new” mitigating evidence was reasonably available to said

11 2015 WL 3651534.
12 Id. at *2.
13 Id. at *5-6.
14 Id.

9
 Case: 15-70019 Document: 00513587138 Page: 10 Date Filed: 07/11/2016

No. 15-70019
counsel at the time of Petitioner’s initial state habeas corpus
proceeding. 15

On this basis, the district court held that Trevino had failed to show
cause under Martinez/Trevino for his procedural default, and that his claim
was still subject to dismissal on this ground alone. The district court also held
that even if Trevino had overcome the procedural default bar, his claim should
be dismissed on the merits.
2. MERITS OF THE CLAIM

On its merits determination, the district court relied extensively on its
alternative holding in its 2009 opinion that the “new” mitigating evidence
(concerning Trevino’s character, childhood abuse and neglect, alcohol and
narcotics abuse, school performance, and possible FASD) could not outweigh
the substantial aggravating evidence presented at trial. 16 The district court
listed some of the aggravating evidence, including Trevino’s “callous
comments” following the murder of Salinas, his participation in the violent
assault, and his gang membership, but the district court placed special
emphasis on “the complete and total absence of any indication the Petitioner
has ever expressed sincere contrition or genuine remorse over Salinas’
murder.” 17 In the district court’s estimation, Trevino’s apparent lack of
remorse seemed to be the primary piece of aggravating evidence:
The latter point cannot be over-emphasized. Salinas’ murder was
particularly brutal and senseless. Yet Petitioner has consistently
refused to acknowledge his role in her murder, even to his own trial

15 Id.
16 Id. at *3-4 (quoting Trevino v. Thaler, 678 F. Supp. 2d at 471–72). The court also
stated that “neither the Fifth Circuit nor the Supreme Court has rejected this Court’s legal
conclusions or factual findings underlying its determination that Petitioner’s claims of
ineffective assistance by his trial counsel asserted in his first amended petition lacked merit,”
id., but it is more accurate to say that neither the Fifth Circuit nor the Supreme Court
addressed the merits at all.
17 2015 WL 3651534 at *3-4.

10
 Case: 15-70019 Document: 00513587138 Page: 11 Date Filed: 07/11/2016

No. 15-70019
counsel, claiming instead to have been “too stoned” to remember
exactly what happened that evening. Petitioner’s own affidavit,
executed June 11, 2004, contains not even a scintilla of sincere
contrition; instead Petitioner expresses hostility and blames his
trial counsel for allegedly misrepresenting the terms of a proffered
plea bargain for a life sentence without accepting any
responsibility for his own rejection of the offer after it was
accurately described to Petitioner.

Absent some indication the Petitioner has willingly accepted
responsibility for his role in Salinas’ brutal rape and murder, the
evidence showing Petitioner’s long history of alcohol and drug
abuse, long history of criminal misconduct, and membership in
violent street and prison gangs precludes this Court from finding
this aspect of Petitioner’s ineffective assistance claims herein
satisfies the prejudice prong of Strickland. There is simply no
reasonable probability that, but for the failure of Petitioner’s trial
counsel to present Petitioner’s capital sentencing jury with the
additional, double-edged, mitigating evidence now before this
Court, the outcome of the punishment phase of Petitioner’s capital
trial would have been different. 18

The district court concluded that the second amended petition did not
change the balance because the “new” mitigating evidence was fundamentally
the same “double-edged” evidence it had addressed in its earlier opinion. 19 The
district court summarized the “new” evidence as follows:
Petitioner asserts that trial counsel could have called various
witnesses who would have offered supportive testimony (e.g.,
Janet Cruz, the mother of his two children; Mario Cantu, friend;
Ruben Gonzalez, employer; Jennifer DeLeon, his sister).

One of the experts recently retained opines that Petitioner
“presents with characteristics of Fetal Alcohol Affect”, and a “low
average range of intellectual functioning.” She further opines that
his “history of Fetal Alcohol Affect, along with his history of
physical and emotional abuse” contributed to his “inability to make
appropriate decisions.” She opines that this may also have

18 Id. (quoting Trevino, 678 F. Supp. 2d at 471-72).
19 Id. at *4.
11
 Case: 15-70019 Document: 00513587138 Page: 12 Date Filed: 07/11/2016

No. 15-70019
contributed to Petitioner rejecting the plea offer made to him that
would have spared him from the death sentence.

Another expert opines that based on his preliminary assessment,
Petitioner suffers from “8 domains” of poor “cognitive functioning,”
(i.e., academics, verbal and visuospatial memory, visuospatial
construction, processing speed, executive functioning,
communication skills, daily living skills and socialization skills).
This expert states that although his assessment is a “critical
component in the FASD diagnostic process,” the diagnosis of FASD
must be made by a medical doctor. According to this expert, yet
unexamined is whether Petitioner’s “FASD has resulted in an
organic brain disorder.” In summary, Petitioner argues that, had
the “jury been able to consider [Petitioner’s] mixed up and
unexplainable turbulent and chaotic life history on the mitigating
side of the scale, there is unquestionably a reasonable probability
that at least one juror would have struck a different balance.” 20

The expert “recently retained” was Dr. Rebecca A. Dyer, Ph.D., of
Forensic Associates of San Antonio, whose 18-page report dated May 6, 2004,
was attached to Trevino’s earlier habeas petition that was the subject of the
district court’s 2009 opinion, and was again attached to his second amended
habeas petition. 21
The district court correctly set out the standards for uncalled witnesses
and uninvestigated facts as follows:
“To prevail on an ineffective assistance claim based upon uncalled
witnesses, an applicant must name the witness, demonstrate that
the witness would have testified, set out the content of the
witness’s proposed testimony, and show that the testimony would
have been favorable.” Gregory v. Thaler, 601 F.3d 347, 352 (5th
Cir.), cert. denied, 562 U.S. 911, 131 S. Ct. 265, 178 L. Ed. 2d 175
(2010). “An applicant ‘who alleges a failure to investigate on the
part of his counsel must allege with specificity what the

20 Id. at *7-8 (footnotes omitted).
21 2015 WL 3651534 at *8 n.12.
12
 Case: 15-70019 Document: 00513587138 Page: 13 Date Filed: 07/11/2016

No. 15-70019
investigation would have revealed and how it would have altered
the outcome of the trial.’” Id. 22

Applying these standards, the district court addressed two distinct
categories of proposed evidence: (1) character witness testimony and (2)
evidence pertaining to Trevino’s possible FASD. 23 The district court explained
that although the character witness testimony did contain some mitigating
evidence, it contained a great deal of aggravating evidence as well, which
would serve to bolster the prosecution’s case. 24 Among the aggravating
evidence was testimony that Trevino was “always high” from sniffing spray
paint, that he was abusive to the mother of one of his children and had two
sides to his personality, that he was “always jealous,” “angry,” “violent,” and
“impulsive” even when he was not drunk, and that he always had a gun. 25
Thus, the district court concluded that the “new” character witness testimony
was “double-edged” and, if introduced, could not have affected the outcome.
Next, the district court found that the FASD evidence was also “double-
edged,” though the court’s language suggested that the FASD evidence may be
more mitigating than aggravating:
Finally, this Court has previously noted the double-edged nature
of a diagnosis of Fetal Alcohol Syndrome or Fetal Alcohol Effects.
This Court has also noted that a diagnosis of Fetal Alcohol
Syndrome or Fetal Alcohol Effects or Fetal Alcohol Spectrum
Disorder was not within the mainstream of psychological diagnosis
and treatment at the time of Petitioner’s 1997 capital murder trial.

In sum, the “new” evidence presented by Petitioner, while
admittedly containing some mitigating aspects (particularly those
concerning Petitioner’s mother’s alcoholism and the likelihood
Petitioner suffers from Fetal Alcohol Spectrum Disorder), also

22 Id. at *7.
23 Id. at *9-10.
24 Id.
25 Id.

13
 Case: 15-70019 Document: 00513587138 Page: 14 Date Filed: 07/11/2016

No. 15-70019
contains a plethora of information which would have assisted the
prosecution in obtaining an affirmative answer to the Texas
capital sentencing scheme’s future dangerousness special issue. 26

After characterizing all of the proposed “new” evidence as “double-
edged,” the district court turned to the question of whether Trevino’s trial
counsel rendered ineffective assistance, setting out the same standards we will
apply here:
To establish ineffective assistance of counsel, a petitioner must
show that counsel’s representation fell below an objective standard
of reasonableness, and to establish prejudice he must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Williams v. Taylor, 529 U.S. 362, 390–91, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000) (citing Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

A few highlights from Strickland should be noted. “Counsel also
has a duty to bring to bear such skill and knowledge as will render
the trial a reliable adversarial testing process.” Strickland, 466
U.S. at 688. “Prevailing norms of practice as reflected in American
Bar Association standards” are mere guides. Id. 27

The district court concluded that Trevino had failed to satisfy either the
performance or prejudice prong of Strickland. On the performance prong, the
district court essentially concluded that the evidence simply was not available
to his trial counsel at the time of his trial and therefore counsel’s failure to
investigate it could not constitute deficient performance. 28 The district court
stated that “trial counsel was not wholly inattentive to developing mitigating

26 Id. at *10 (footnotes omitted) (citing Sells v. Thaler, 2012 WL 2562666, *58 (W.D.
Tex. June 28, 2012), COA denied, 536 F. App’x 483 (5th Cir. July 22, 2013), cert. denied, –––
U.S. ––––, 134 S. Ct. 1786, 188 L. Ed. 2d 612 (2014) (“[P]ursuit of a defense at the punishment
phase of petitioner’s trial premised upon petitioner suffering from fetal alcohol syndrome or
fetal alcohol effects would have amounted to an admission by petitioner’s trial counsel that
petitioner would, in fact, pose a substantial risk of future violent conduct.”)).
27 2015 WL 3651534 at *10-11.
28 Id. at *12.

14
 Case: 15-70019 Document: 00513587138 Page: 15 Date Filed: 07/11/2016

No. 15-70019
evidence,” in that he interviewed Trevino’s stepfather, and Trevino “failed to
assist his trial counsel in identifying any family members or others who may
have provided mitigating testimony.” 29
With respect to the evidence of Trevino’s mother’s alcohol abuse during
pregnancy, the court noted that Trevino’s mother did not provide a sworn
statement until 2004 and did not state that she would have been available to
testify at the 1997 trial. 30 “Accordingly, it is difficult to understand how trial
counsel could reasonably be blamed for not locating Ms. Trevino prior to
Petitioner’s 1997 capital murder trial and presenting potentially mitigating
evidence from this witness.” 31 The court also found that the FASD claim should
be denied primarily on the performance prong because Trevino failed to show
that the evidence was available at the time of trial. 32 In sum, the district court
found that there was no evidence that Trevino’s state trial counsel knew or
should have known about additional character witnesses or about the factual
basis for a possible FASD claim.
On the second prong of Strickland, the district court concluded that, even
if Trevino could show that his trial counsel’s performance fell below an
objectively reasonable standard, that failure did not result in prejudice. Again,
the district court set out the correct legal standards, which are also applicable
to this COA application, but the district court focused primarily on the
character witness testimony:
In evaluating prejudice in the context of the punishment phase of
a capital trial, a federal habeas court must re-weigh all the
evidence in aggravation against the totality of available mitigating
evidence (had the Petitioner’s trial counsel chosen a different
course). Wong v. Belmontes, 558 U.S. 15, 20, 130 S. Ct. 383, 175 L.

29 Id.
30 Id.
31 Id.
32 Id. at *13.

15
 Case: 15-70019 Document: 00513587138 Page: 16 Date Filed: 07/11/2016

No. 15-70019
Ed. 2d 328 (2009); Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct.
2527, 156 L. Ed. 2d 471 (2003). Strickland does not require the
State to “rule out” or negate a sentence of life in prison to prevail;
rather, it places the burden on the defendant to show a “reasonable
probability” that the result of the punishment phase of a capital
murder trial would have been different. Wong v. Belmontes, 558
U.S. at 27. The prejudice inquiry under Strickland requires
evaluating whether there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “The likelihood
of a different result must be substantial, not just conceivable.”
Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012) (citing
Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d
624 (2011)), cert. denied, ––– U.S. ––––, 133 S. Ct. 1244, 185 L. Ed.
2d 190 (2013).

Federal habeas corpus petitioners asserting claims of ineffective
assistance based on counsel’s failure to call a witness satisfy the
prejudice prong of the Strickland analysis only by naming the
witness, demonstrating the witness was available to testify and
would have done so, setting out the content of the witness’
proposed testimony, and showing the testimony would have been
favorable to a particular defense. Woodfox v. Cain, 609 F.3d 774,
808 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.
2009). 33

The district court found it sufficient that Trevino’s trial counsel
presented the testimony of his aunt, “albeit in a cursory fashion,” to explain
“the facts that Petitioner’s mother was an alcoholic and Petitioner’s family
lived on welfare in public housing.” 34 The court concluded that the proposed
“new” character witness testimony could not have changed the result because,
“in addition to noting that Petitioner was raised in a very troubled household
and neighborhood, and that he was kind and caring at times, these individuals
also have described Petitioner as a man quickly prone to angry and violent

33 2015 WL 3651534 at *12-13.
34 Id. at *13.
16
 Case: 15-70019 Document: 00513587138 Page: 17 Date Filed: 07/11/2016

No. 15-70019
outbursts.” 35 In the district court’s view, the character witness testimony is
only weakly mitigating and contains highly aggravating evidence, so there is
no reason to believe it would serve any meaningful mitigation purpose.
In summing up its conclusion that the “new” evidence could not have
changed the outcome (i.e., the failure to introduce it was not prejudicial under
Strickland), the district court focused on the heinous nature of the crime, the
fact that there was a great deal of aggravating evidence, and the fact that the
proposed character witness testimony contained additional aggravating
evidence in addition to fairly inconsequential mitigating evidence. 36 In short,
it concluded that the “new” mitigating evidence simply could not outweigh the
aggravating evidence because it was “double-edged,” placing greater emphasis
on the character witness testimony. Because the district court concluded that
Trevino failed to satisfy either prong of Strickland, it denied relief on the
merits.
3. DENIAL OF EVIDENTIARY HEARING

The district court did not hold an evidentiary hearing because it found
Trevino “has failed to allege specific facts which, if proven, would entitle
Petitioner to federal habeas corpus relief in this cause.” 37 Because it based its
decision on the pleadings, an evidentiary hearing could not affect the outcome.
4. DENIAL OF COA

Based on all the above, the district court denied all relief under the
second amended petition. It also denied a COA. Although it noted that “[i]n
death penalty cases, any doubt as to whether a CoA should issue must be
resolved in the petitioner’s favor,” it concluded there was no such doubt here,

35 Id.
36 Id. at *14.
37 2015 WL 3651534 at *15.

17
 Case: 15-70019 Document: 00513587138 Page: 18 Date Filed: 07/11/2016

No. 15-70019
at least with respect to the Martinez/Trevino procedural default issue (i.e.,
whether Trevino sufficiently alleged that his state habeas counsel rendered
ineffective assistance for failing to raise the ineffective-assistance-of-trial-
counsel claim) and the prejudice prong of Strickland. 38

II. APPLICABLE LAW

Before turning to the particular claims asserted by Trevino, we first
address the applicable law; the framework for Strickland claims generally and
the Wiggins inadequate investigation claim at issue here; and the law
concerning “double-edged” evidence.
A. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction in this application for a COA from the district
court’s denial of habeas relief under 28 U.S.C. § 2254 pursuant to 28 U.S.C. §§
1291 and 2253(c)(1)(B). As we set out in our 2011 opinion, the standard of
review under AEDPA is usually highly deferential. 39 AEDPA deference does
not apply here, however, because the district court was not reviewing a state
court decision on the merits of Trevino’s claim but rather addressing the merits
for the first time. 40 Thus, AEDPA’s deferential standard of review does not
apply, and we review the merits de novo. 41
Under § 2254(b)(2), “An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” Because Trevino’s claim may
be dismissed on either procedural default grounds or on the merits, he must

38Id. at *16 (citing Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, 558
U.S. 993, 130 S. Ct. 536, 175 L. Ed. 2d 350 (2009); Bridgers v. Dretke, 431 F.3d 853, 861 (5th
Cir. 2005), cert. denied, 548 U.S. 909, 126 S. Ct. 2961, 165 L. Ed. 2d 959 (2006)).
39 Trevino, 133 S. Ct. at 1921 (quoting Martinez, 132 S. Ct., at 1320).
40 See, e.g., Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009); Mercadel v. Cain, 179

F.3d 271, 275 (5th Cir. 1999).
41 Id.

18
 Case: 15-70019 Document: 00513587138 Page: 19 Date Filed: 07/11/2016

No. 15-70019
demonstrate that reasonable jurists would debate the correctness of the
district court’s dismissal on both grounds.
B. STRICKLAND AND WIGGINS

Strickland analysis is, of course, central to this COA application,
especially as applied in Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527,
156 L. Ed. 2d 471 (2003). Because Wiggins demonstrates the basis for Trevino’s
entire claim, we examine the case in some detail. 42
The petitioner, Wiggins, was convicted in August 1989, after a four-day
jury trial, for a murder he committed in 1988. Prior to sentencing, his trial
counsel moved for bifurcation of sentencing into two phases: in the first,
counsel proposed to prove that Wiggins did not act as the principal in the
murder, and in the second, they intended to present mitigating evidence.
Counsel argued that bifurcation would prevent mitigation evidence from
undercutting their argument that Wiggins was not primarily responsible for
the murder. The trial judge denied the motion, and sentencing commenced in
a single phase.
On October 12, the court denied the bifurcation motion, and
sentencing proceedings commenced immediately thereafter. In her
opening statement, Nethercott told the jurors they would hear
evidence suggesting that someone other than Wiggins actually
killed Lacs. Counsel then explained that the judge would instruct
them to weigh Wiggins’ clean record as a factor against a death
sentence. She concluded: “‘You’re going to hear that Kevin Wiggins
has had a difficult life. It has not been easy for him. But he’s
worked. He’s tried to be a productive citizen, and he’s reached the
age of 27 with no convictions for prior crimes of violence and no
convictions, period. . . . I think that’s an important thing for you to
consider.’” During the proceedings themselves, however, counsel
introduced no evidence of Wiggins’ life history.

42 The facts in this section all come from Wiggins, with citations provided only for
quotations.
19
 Case: 15-70019 Document: 00513587138 Page: 20 Date Filed: 07/11/2016

No. 15-70019
Before closing arguments, Schlaich made a proffer to the court,
outside the presence of the jury, to preserve bifurcation as an issue
for appeal. He detailed the mitigation case counsel would have
presented had the court granted their bifurcation motion. He
explained that they would have introduced psychological reports
and expert testimony demonstrating Wiggins’ limited intellectual
capacities and childlike emotional state on the one hand, and the
absence of aggressive patterns in his behavior, his capacity for
empathy, and his desire to function in the world on the other. At
no point did Schlaich proffer any evidence of petitioner’s life
history or family background. 43

The jury returned a sentence of death.
In 1993, Wiggins sought state habeas relief, “arguing that his attorneys
had rendered constitutionally defective assistance by failing to investigate and
present mitigating evidence of his dysfunctional background.” 44 In support, he
submitted testimony by a licensed social worker who had prepared an
extensive social history report detailing severe physical and sexual abuse by
his own father and mother as well as various foster parents. During these
proceedings, one of Wiggins’ trial attorneys testified that he did not recall
retaining a forensic social worker to prepare a social history, even though the
State of Maryland made funds available for that purpose, and he testified that
the trial team had, “well in advance of trial, decided to focus their efforts on
‘retry[ing] the factual case’ and disputing Wiggins’ direct responsibility for the
murder.” 45
The state habeas courts denied relief on the ground that the decision not
to investigate was “a matter of trial tactics” and therefore did not constitute
deficient performance under Strickland. The state appellate court focused on
the fact that trial counsel knew at least the general contours of Wiggins’

43 539 U.S. at 515-16 (citations omitted).
44 Id. at 516.
45 Id. at 517.

20
 Case: 15-70019 Document: 00513587138 Page: 21 Date Filed: 07/11/2016

No. 15-70019
childhood, and that at least one mitigating factor, Wiggins’ lack of prior
convictions, was presented to the jury.
Wiggins filed a habeas petition in federal court, arguing that the state
habeas courts’ rejection of his ineffective-assistance-of-trial-counsel claim was
based on an unreasonable application of clearly established federal law. The
federal district court agreed, concluding that trial counsel’s decision not to
investigate Wiggins’ social history further could only be reasonable if it was
“based upon information the attorney has made after conducting a reasonable
investigation.” 46 Reviewing de novo, the Fourth Circuit reversed. The Supreme
Court granted certiorari and reversed the Fourth Circuit.
After setting out the Strickland standards and emphasizing the “heavy
measure of deference” accorded to the judgments of trial counsel, the Supreme
Court explained the limits of that deference:
Our opinion in Williams v. Taylor is illustrative of the proper
application of these standards. In finding Williams’ ineffectiveness
claim meritorious, we applied Strickland and concluded that
counsel’s failure to uncover and present voluminous mitigating
evidence at sentencing could not be justified as a tactical decision
to focus on Williams’ voluntary confessions, because counsel had
not “fulfill[ed] their obligation to conduct a thorough investigation
of the defendant’s background.” 529 U.S., at 396, 120 S. Ct. 1495
(citing 1 ABA Standards for Criminal Justice 4-4.1, commentary,
p. 4-55 (2d ed.1980)). While Williams had not yet been decided at
the time the Maryland Court of Appeals rendered the decision at
issue in this case, cf. post, at 2546 (SCALIA, J., dissenting),
Williams’ case was before us on habeas review. Contrary to the
dissent’s contention, ibid., we therefore made no new law in
resolving Williams’ ineffectiveness claim. See Williams, 529 U.S.,
at 390, 120 S. Ct. 1495 (noting that the merits of Williams’ claim
“are squarely governed by our holding in Strickland”); see also id.,
at 395, 120 S. Ct. 1495 (noting that the trial court correctly applied
both components of the Strickland standard to petitioner’s claim
and proceeding to discuss counsel’s failure to investigate as a

46 Id. at 519 (quoting Wiggins v. Corcoran, 164 F. Supp. 2d 538, 558 (D. Md. 2001)).
21
 Case: 15-70019 Document: 00513587138 Page: 22 Date Filed: 07/11/2016

No. 15-70019
violation of Strickland’s performance prong). In highlighting
counsel’s duty to investigate, and in referring to the ABA
Standards for Criminal Justice as guides, we applied the same
“clearly established” precedent of Strickland we apply today. Cf.
466 U.S., at 690-691, 104 S. Ct. 2052 (establishing that “thorough
investigation[s]” are “virtually unchallengeable” and underscoring
that “counsel has a duty to make reasonable investigations”); see
also id., at 688-689, 104 S. Ct. 2052 (“Prevailing norms of practice
as reflected in American Bar Association standards and the like
. . . are guides to determining what is reasonable”).

In light of these standards, our principal concern in deciding
whether Schlaich and Nethercott exercised “reasonable
professional judgmen[t],” id., at 691, 104 S. Ct. 2052, is not
whether counsel should have presented a mitigation case. Rather,
we focus on whether the investigation supporting counsel’s
decision not to introduce mitigating evidence of Wiggins’
background was itself reasonable. Ibid. Cf. Williams v. Taylor,
supra, at 415, 120 S. Ct. 1495 (O’CONNOR, J., concurring) (noting
counsel’s duty to conduct the “requisite, diligent” investigation into
his client’s background). In assessing counsel’s investigation, we
must conduct an objective review of their performance, measured
for “reasonableness under prevailing professional norms,”
Strickland, 466 U.S., at 688, 104 S. Ct. 2052, which includes a
context-dependent consideration of the challenged conduct as seen
“from counsel’s perspective at the time,” id., at 689, 104 S. Ct. 2052
(“[E]very effort [must] be made to eliminate the distorting effects
of hindsight”). 47

The Court noted that trial counsel drew its mitigation case from three
sources: an IQ test conducted by a psychologist, which revealed Wiggins had
an IQ of 79; a presentence investigation report (“PSI”), which included a brief
summary of his miserable personal history; and records kept by the Baltimore
City Department of Social Services (“DSS”), which showed his various
placements in the foster care system. They did not, however, develop any
further social history, despite the availability of funds for that purpose.

47 Id. at 522-23 (emphasis in original).
22
 Case: 15-70019 Document: 00513587138 Page: 23 Date Filed: 07/11/2016

No. 15-70019
The Court held that this constituted constitutionally deficient
investigation in light of not only Maryland’s standards but ABA Guidelines in
place prior to his sentencing, including the admonition that “investigations
into mitigating evidence ‘should comprise efforts to discover all reasonably
available mitigating evidence and evidence to rebut any aggravating evidence
that may be introduced by the prosecutor.’” 48
Despite these well-defined norms, however, counsel abandoned
their investigation of petitioner’s background after having
acquired only rudimentary knowledge of his history from a narrow
set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics
counsel should consider presenting are medical history,
educational history, employment and training history, family and
social history, prior adult and juvenile correctional experience, and
religious and cultural influences (emphasis added)); 1 ABA
Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.
1982) (“The lawyer also has a substantial and important role to
perform in raising mitigating factors both to the prosecutor
initially and to the court at sentencing . . . . Investigation is
essential to fulfillment of these functions”). 49

Moreover, the Court found that “the investigation was also unreasonable
in light of what counsel actually discovered in the DSS records,” including the
fact that Wiggins’ mother was an alcoholic, that he had spent time in different
foster homes, that he displayed emotional difficulties, that he was frequently
absent from school, and that he was left without food for days at a time. 50
As the Federal District Court emphasized, any reasonably
competent attorney would have realized that pursuing these leads
was necessary to making an informed choice among possible
defenses, particularly given the apparent absence of any
aggravating factors in petitioner’s background. 164 F.Supp.2d, at
559. Indeed, counsel uncovered no evidence in their investigation

48 539 U.S. at 524 (quoting ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added in Wiggins)).
49 Id. at 524-25.
50 Id. at 525.

23
 Case: 15-70019 Document: 00513587138 Page: 24 Date Filed: 07/11/2016

No. 15-70019
to suggest that a mitigation case, in its own right, would have been
counterproductive, or that further investigation would have been
fruitless; this case is therefore distinguishable from our precedents
in which we have found limited investigations into mitigating
evidence to be reasonable. See, e.g., Strickland, supra, at 699, 104
S. Ct. 2052 (concluding that counsel could “reasonably surmise . . .
that character and psychological evidence would be of little help”);
Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d
638 (1987) (concluding counsel’s limited investigation was
reasonable because he interviewed all witnesses brought to his
attention, discovering little that was helpful and much that was
harmful); Darden v. Wainwright, 477 U.S. 168, 186, 106 S. Ct.
2464, 91 L. Ed. 2d 144 (1986) (concluding that counsel engaged in
extensive preparation and that the decision to present a mitigation
case would have resulted in the jury hearing evidence that
petitioner had been convicted of violent crimes and spent much of
his life in jail). Had counsel investigated further, they might well
have discovered the sexual abuse later revealed during state
postconviction proceedings. 51

In sum, the Court concluded that Wiggins’ trial counsel’s investigation
was constitutionally inadequate under the performance prong of Strickland:
In finding that Schlaich and Nethercott’s investigation did not
meet Strickland’s performance standards, we emphasize that
Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant at sentencing. Nor does
Strickland require defense counsel to present mitigating evidence
at sentencing in every case. Both conclusions would interfere with
the “constitutionally protected independence of counsel” at the
heart of Strickland, 466 U.S., at 689, 104 S. Ct. 2052. We base our
conclusion on the much more limited principle that “strategic
choices made after less than complete investigation are
reasonable” only to the extent that “reasonable professional
judgments support the limitations on investigation.” Id., at 690-
691, 104 S. Ct. 2052. A decision not to investigate thus “must be

51 Id.
24
 Case: 15-70019 Document: 00513587138 Page: 25 Date Filed: 07/11/2016

No. 15-70019
directly assessed for reasonableness in all the circumstances.” Id.,
at 691, 104 S. Ct. 2052. 52

The Court then turned to the prejudice prong of Strickland:
In order for counsel’s inadequate performance to constitute a Sixth
Amendment violation, petitioner must show that counsel’s failures
prejudiced his defense. Strickland, 466 U.S., at 692, 104 S. Ct.
2052. In Strickland, we made clear that, to establish prejudice, a
“defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.,
at 694, 104 S. Ct. 2052. In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available mitigating
evidence. 53

The Court concluded that the failure to investigate and discover the
“powerful” mitigation evidence was indeed prejudicial, in that it showed a
history of severe abuse, starting with his “alcoholic, absentee mother” and
continuing through an unbroken series of extreme hardships. 54 In the Court’s
words, Wiggins “thus has the kind of troubled history we have declared
relevant to assessing a defendant’s moral culpability.” 55
Given both the nature and the extent of the abuse petitioner
suffered, we find there to be a reasonable probability that a
competent attorney, aware of this history, would have introduced
it at sentencing in an admissible form. While it may well have been
strategically defensible upon a reasonably thorough investigation
to focus on Wiggins’ direct responsibility for the murder, the two
sentencing strategies are not necessarily mutually exclusive.
Moreover, given the strength of the available evidence, a
reasonable attorney might well have chosen to prioritize the
mitigation case over the direct responsibility challenge,

52 Id. at 533.
53 Id. at 534.
54 Id. at 534-35.
55 Id. at 535 (citing Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed.

2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982);
Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)).
25
 Case: 15-70019 Document: 00513587138 Page: 26 Date Filed: 07/11/2016

No. 15-70019
particularly given that Wiggins’ history contained little of the
double edge we have found to justify limited investigations in other
cases. Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d
638 (1987); Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464,
91 L. Ed. 2d 144 (1986). 56

Accordingly, the Supreme Court held that the mitigating evidence,
considered as a whole, could have resulted in a different sentence, and it
reversed and remanded.
C. “DOUBLE-EDGED” EVIDENCE

The district court focused on the fact that Wiggins does not necessarily
apply when the proposed “new” evidence is “double-edged,” as Wiggins itself
explained. Therefore, the two cases the Supreme Court cited in Wiggins for
such evidence, Burger and Darden, are worth examining briefly.
In Burger, the petitioner’s trial counsel was aware of some, but not all,
of his troubled family history, including his “unhappy and unstable childhood,”
one of his stepfathers getting him involved in marijuana and alcohol, his
running away from home and being placed in a juvenile detention home, and
similar facts. 57 During his investigation, trial counsel had talked to the
petitioner’s mother, an old friend of the petitioner’s, a psychologist counsel had
employed to examine him prior to trial, and others, before deciding not to
present evidence of his childhood. 58 Counsel also decided not to have the
petitioner testify on the ground that he showed no remorse and might actually
brag about the crime on the witness stand. 59
The petitioner argued that his attorney should have conducted more of
an investigation, but the Court concluded that the proposed “new” testimony

56 539 U.S. at 535 (emphasis added).
57 Burger, 483 U.S. at 789-90.
58 Id. at 790-91.
59 Id. at 791-92.

26
 Case: 15-70019 Document: 00513587138 Page: 27 Date Filed: 07/11/2016

No. 15-70019
could not have helped. The proposed testimony contained only meager
mitigation evidence and a substantial amount of aggravating evidence,
including the fact that he had spent time in juvenile detention, which had not
been disclosed at trial, and that he had violent tendencies and seemed to have
a split personality that resulted in unpredictable angry outbursts. 60 As the
Court noted, “Even apart from their references to damaging facts, the papers
are by no means uniformly helpful to petitioner because they suggest violent
tendencies that are at odds with the defense’s strategy of portraying
petitioner’s actions on the night of the murder as the result of Stevens’ strong
influence upon his will.” 61
In short, the petitioner’s trial counsel in Burger had conducted a fairly
extensive investigation into mitigation evidence and had made considered
judgments in choosing not to present some seemingly mitigating evidence. The
evidence trial counsel failed to discover through his investigation contained a
great deal of aggravating evidence and therefore its absence could not have
prejudiced him.
In Darden, the petitioner argued that he had received ineffective
assistance of trial counsel on the ground that his attorney spent insufficient
time preparing the mitigation case and had opted to “rely on a simple plea for
mercy from petitioner himself.” 62 The Court found that his trial counsel had
spent hundreds of hours preparing his case, including mitigation. The problem
was that there simply was no mitigating evidence that would not have
permitted the state to bring in even stronger aggravating evidence to rebut it. 63
Any argument that he was nonviolent would have allowed the state to bring in

60 Id. at 793-95.
61 Id. at 793.
62 Darden, 477 U.S. at 186.
63 Id.

27
 Case: 15-70019 Document: 00513587138 Page: 28 Date Filed: 07/11/2016

No. 15-70019
evidence of his prior convictions, which had not previously been admitted in
evidence, and any argument that he was incapable of committing the crimes
would have allowed the state to introduce a psychiatric report indicating he
very well could have based on his “sociopathic type of personality,” among other
damaging rebuttal evidence. 64 Accordingly, the Court concluded that the trial
counsel’s decision to rely on a simple plea of mercy, following the investigation
and consideration of potentially mitigating evidence, constituted a defensible
trial strategy under Strickland. 65

III. ANALYSIS

A. MARTINEZ/TREVINO ISSUE

Trevino argues (1) that he is entitled to an evidentiary hearing on the
Martinez/Trevino issue, and (2) that he properly established cause for his
procedural default under the Supreme Court’s Martinez/Trevino rule. Based
on his pleadings alone, we conclude he has at least alleged sufficient cause, so
we need not address his evidentiary hearing argument. As noted above, the
Supreme Court in Trevino stated, “[A] procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at trial
if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.” 66 The district court, citing standards for
appellate counsel, found that Trevino failed to show that his state habeas
counsel was ineffective because he failed to show that the proposed “new”
evidence was even available at the time.
Martinez suggests that a similar standard should apply to both state
trial counsel and state habeas counsel. There, the Supreme Court explained

64 Id. at 186-87.
65 Id.
66 133 S Ct. at 1921 (quoting Martinez, 132 S. Ct. at 1320).

28
 Case: 15-70019 Document: 00513587138 Page: 29 Date Filed: 07/11/2016

No. 15-70019
that the purpose of the exception is to recognize that the initial state habeas
proceeding is virtually the same as a direct appeal for some purposes:
Where, as here, the initial-review collateral proceeding is the first
designated proceeding for a prisoner to raise a claim of ineffective
assistance at trial, the collateral proceeding is in many ways the
equivalent of a prisoner’s direct appeal as to the ineffective-
assistance claim. This is because the state habeas court “looks to
the merits of the clai[m]” of ineffective assistance, no other court
has addressed the claim, and “defendants pursuing first-tier
review . . . are generally ill equipped to represent themselves”
because they do not have a brief from counsel or an opinion of the
court addressing their claim of error. 67

Here, the crux of Trevino’s claim is not that his trial counsel made an
informed decision not to present certain evidence following a constitutionally
sufficient investigation, but that his trial counsel failed to conduct such an
investigation in the first place. Trevino argues that the state trial counsel’s
failure to investigate would have been obvious to his state habeas counsel as
well. Thus, he argues that his state habeas counsel’s failure to investigate the
possibility of a Wiggins claim constitutes ineffective assistance, satisfying
Martinez/Trevino.
Trevino’s second amended petition’s section titled “Petitioner’s State
Habeas Counsel was Ineffective” is mostly devoted to the many failings of his
state trial counsel, but it also squarely addresses his state habeas counsel’s
alleged ineffective assistance:
Failing to raise such a claim after investigation, and making a
thoroughly informed decision that there was no merit in raising
that issue for review was an option to Attorney Rodriguez. Never
investigating the possibility or merits of such a claim was not.

AS [sic] thoroughly demonstrated in the foregoing sections of this
petition, there was an immense amount of material not included
in the record indicating that trial counsel had indeed been

67 Martinez, 132 S. Ct. at 1317.
29
 Case: 15-70019 Document: 00513587138 Page: 30 Date Filed: 07/11/2016

No. 15-70019
ineffective at the punishment phase of trial. State habeas counsel
had a duty and obligation to undertake an investigation to at least
determine whether such a claim was a viable one. Had such an
investigation been undertaken, the magnitude of the error would
have become evident. At that time, there was simply no scenario
in which state habeas counsel’s actions and performance could be
considered effective representation of any client - especially one
sentenced to death who was relying on state habeas counsel for his
one and only possible opportunity in existence at that time.

State habeas counsel was undoubtedly ineffective in his failure to
raise a claim that Petitioner’s trial counsel was ineffective at the
punishment phase of Petitioner’s trial. 68

Trevino essentially argues that the facially deficient investigation by the
state trial counsel should have put his state habeas counsel on notice to
investigate a claim for failure to investigate. The district court’s approach, on
the other hand, suggests that Trevino’s state habeas counsel could not have
rendered ineffective assistance for failing to assert a claim based on his trial
counsel’s failure to investigate because there was no record evidence of what
mitigating evidence his trial counsel failed to discover.
We conclude Trevino has the better argument here. If state habeas
counsel is not subject to the same Strickland requirement to perform some
minimum investigation prior to bringing the initial state habeas petition, the
Martinez/Trevino rule would have limited utility (if any) in addressing Wiggins
claims. There is a serious danger, under the district court’s reasoning, that a
state trial counsel’s failure to investigate (and put into the record) mitigation
evidence could insulate state habeas counsel from an ineffective assistance
claim simply because the evidence was missing. That would only compound the
problem with state trial counsel’s failure to conduct a reasonable investigation

68 Second Amended Petition, Docket Number SA-01-CA-306-XR, ECF Doc. 143 at 52.
30
 Case: 15-70019 Document: 00513587138 Page: 31 Date Filed: 07/11/2016

No. 15-70019
in the first place, and Wiggins claims for deficient investigation might be
effectively unreviewable under Martinez/Trevino.
In this case, Trevino’s state trial counsel presented only one mitigation
witness and no other evidence during the punishment phase. The deficiency
in that investigation would have been evident to any reasonably competent
habeas attorney. Thus, we conclude that reasonable jurists not only could
debate the correctness of the district court’s conclusion on the Martinez/Trevino
issue, but would agree that the district court reached the wrong conclusion.
Trevino at least sufficiently pleaded that his state habeas counsel was
ineffective so as to excuse his procedural default in failing to raise the
ineffective-assistance-of-trial-counsel failure-to-investigate claim earlier.
B. WIGGINS CLAIM— STRICKLAND PERFORMANCE PRONG

Turning to the merits of Trevino’s ineffective-assistance-of-trial-counsel
claim under Wiggins, we must determine whether Trevino satisfied both
prongs of Strickland. First, we must determine whether Trevino’s trial
counsel’s performance was deficient.
To demonstrate deficient performance, “the defendant must show
that counsel’s representation fell below an objective standard of
reasonableness” as measured by “prevailing professional norms.”
Our scrutiny of counsel’s performance is highly deferential. We
“must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’” To overcome this presumption, “[a] convicted
defendant making a claim of ineffective assistance must identify
the acts or omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.” Of central
importance here, “choices made after less than complete
investigation are reasonable [only] to the extent that reasonable
professional judgments support the limitations on investigation.”
Factors affecting whether it is reasonable not to investigate
include whether counsel has “reason to believe that pursuing
31
 Case: 15-70019 Document: 00513587138 Page: 32 Date Filed: 07/11/2016

No. 15-70019
certain investigations would be fruitless or even harmful,”
resource constraints, and whether the information that might be
discovered would be of only collateral significance. 69

As set out above, the district court held that Trevino had failed to allege
facts showing that the performance of his trial counsel was deficient and
instead concluded that Trevino’s “trial counsel was not wholly inattentive to
developing mitigating evidence,” in that he interviewed Trevino’s stepfather,
and Trevino “failed to assist his trial counsel in identifying any family
members or others who may have provided mitigating testimony.” 70 Moreover,
the court emphasized that because Trevino’s mother drank heavily during the
time of trial in 1997, Trevino’s trial counsel could not be blamed for failing to
locate her or discover evidence pertaining to FASD. 71
Reasonable jurists could debate the correctness of the district court’s
determination that Trevino failed to plead that his trial counsel conducted a
constitutionally deficient investigation into mitigation evidence. The record
shows that Trevino’s trial counsel only put forward one mitigation witness,
Trevino’s aunt, and that he interviewed her briefly only on the day of her
testimony. As Trevino argued in his COA application:
The relevant legal question is not whether counsel were “wholly
inattentive” to developing mitigation evidence. Nor is it whether
counsel’s client meaningfully assisted in the mitigation
investigation. Nor is it whether one particular witness was easily
locatable. Nor is it whether counsel successfully managed to
investigate so little so as to remain completely ignorant about
significant aspects of their client’s background. It is significant to
note here that the one witness the trial counsel did present,
Appellant’s aunt Juanita DeLeon, testified that Appellant’s
mother could not be present to testify because she “had alcohol
problems” and lived “in Elgin [Texas].” Clearly, Ms. DeLeon had

69 Coleman, 716 F.3d at 903-04 (footnotes to Strickland omitted).
70 2015 WL 3651534 at *12.
71 Id.

32
 Case: 15-70019 Document: 00513587138 Page: 33 Date Filed: 07/11/2016

No. 15-70019
current knowledge of where Appellant’s mother was living, and of
her current state of health. Had counsel simply asked that
question of Ms. DeLeon during the trial preparation phase, instead
of when she was on the stand, and followed up with a diligent
investigation, significant mitigation evidence could have, and
would have, been uncovered. It is also significant that, in the state
habeas hearing, trial counsel testified that he knew Appellant’s
mother had been in court - or at least in the courthouse - at some
time before the appellant’s trial, but that he was “unable to get
hold of her.” [record citations omitted].

This is a fair characterization of the evidence. The record shows that the
minimal investigation conducted by Trevino’s trial counsel here is remarkably
similar to the investigation in Wiggins that the Supreme Court held to be
constitutionally deficient. Not only did Trevino’s trial counsel do an abysmal
job of locating potential mitigation witnesses, but he failed to elicit easily
obtainable information from the few interviews he conducted, most notably the
whereabouts of Trevino’s mother. Trevino’s trial counsel also admitted in a
2003 affidavit that the trial team “did not ask for any experts in this case other
than to check the DNA results” and that “[i]n hindsight, we should have gotten
mitigation expert [sic] to do a psycho-social history of Carlos’ life. But
mitigation experts were not used very much at the time of the trial (1997 in
Bexar County).” As Wiggins pointed out, the ABA has called for intensive
mitigation investigations in capital cases, including into a defendant’s family
and social history, since well before Trevino’s sentencing in this case. 72
Given that Trevino’s life was on the line, reasonable jurists would
consider the mitigation investigation conducted by his trial counsel
insufficient. We therefore conclude that not only would reasonable jurists
debate the district court’s determination of the Strickland performance prong,
they would agree that it erred. Trevino has at least sufficiently pleaded that

72 Wiggins, 539 U.S. at 524-25.
33
 Case: 15-70019 Document: 00513587138 Page: 34 Date Filed: 07/11/2016

No. 15-70019
his trial counsel’s investigation into mitigation evidence was constitutionally
deficient under Strickland and, more specifically, Wiggins.
C. WIGGINS CLAIM—STRICKLAND PREJUDICE PRONG

As explained above, the prejudice prong of Strickland allows relief only
if there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 73 “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” 74 “The likelihood of a different result must be substantial, not just
conceivable.” 75
As indicated above, the district court appears to have lumped all of the
proposed “new” evidence together for much of its analysis, which heavily
focused on the character witness testimony. It is worthwhile to distinguish
between Trevino’s proposed character witness testimony and his proposed
FASD evidence. The character witness testimony certainly falls under the
classic “double-edged” evidence distinction discussed above in connection with
Burger and Darden, but the FASD evidence potentially has far greater
mitigation value.
Trevino’s proposed character witness testimony, as in Burger, contains
only weak mitigation evidence but strong additional aggravating evidence,
including Trevino’s unpredictable and violent behavior. Thus, no reasonable
jurist would debate whether the district court correctly concluded that Trevino
had failed to show prejudice in his trial counsel’s failure to discover and
introduce the additional character witness testimony. However, that does not
necessarily mean that no reasonable jurist would debate whether the district

73 Strickland, 466 U.S. at 694.
74 Id.
75 Brown, 684 F.3d at 491.

34
 Case: 15-70019 Document: 00513587138 Page: 35 Date Filed: 07/11/2016

No. 15-70019
court properly found that trial counsel’s failure to discover and introduce FASD
evidence did not prejudice Trevino.
The district court characterized the FASD evidence as “double-edged” in
that an FASD diagnosis could tend to show that Trevino would pose a risk of
future violent conduct, 76 but it did not discuss the issue at length. Notably, it
also highlighted the FASD evidence as the most mitigating “new” evidence:
In sum, the “new” evidence presented by Petitioner [including the
character witness testimony], while admittedly containing some
mitigating aspects (particularly those concerning Petitioner’s
mother’s alcoholism and the likelihood Petitioner suffers from
Fetal Alcohol Spectrum Disorder), also contains a plethora of
information which would have assisted the prosecution in
obtaining an affirmative answer to the Texas capital sentencing
scheme’s future dangerousness special issue. 77

Dismissing the FASD out-of-hand as “double-edged” is problematic for a
few reasons. First, Garza v. Stephens, 738 F.3d 669 (5th Cir. 2013), suggests
that FASD evidence could potentially be admissible in this case. In Garza, the
petitioner raised a new argument in his second state habeas petition based on
FASD. The state failed to request dismissal on procedural default grounds, but
the district court dismissed the claim on its merits, as did this court, reasoning:
Garza contends that trial counsel was ineffective in not
investigating and introducing evidence of his possible fetal alcohol
syndrome. But, as the district court observed, Garza fails to
provide evidence that the underlying facts concerning such a
syndrome were made known to trial counsel. Trial counsel had no
leads to that effect. None of the family members mentioned the
mother’s alcohol or drug abuse to trial counsel; in fact, the witnesses
spoke favorably of her at the punishment phase. Furthermore, such
evidence was neither located in the TYC file, which contained
three separate psychological evaluations of Garza, nor provided by
Ferrell at any time. Given trial counsel’s investigation, and the lack

76 2015 WL 3651534 at *10 (citing Sells v. Thaler, 2012 WL 2562666 at *58).
77 Id.
35
 Case: 15-70019 Document: 00513587138 Page: 36 Date Filed: 07/11/2016

No. 15-70019
of any evidence regarding the mother’s substance use, it was
entirely reasonable to not investigate the possible effects of fetal
alcohol syndrome. Accordingly, Garza cannot overcome the strong
presumption that trial counsel’s representation on this front fell
within the wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 689, 104 S. Ct. 2052. 78

Garza concerns the performance prong of Strickland rather than the
prejudice prong, but it suggests that knowledge of a defendant’s mother’s
substance abuse should at least cause the trial attorney to investigate further.
Although the Garza panel would have excluded the evidence under those
circumstances, this case is distinguishable. First, Trevino’s claim is that his
trial counsel did not conduct a constitutionally sufficient investigation in the
first place. The district court noted in its 2009 opinion that a “wealth” of
additional information would have been discovered with “even the most
minimal investigation into petitioner’s background.” 79 Second, even the single
mitigation witness presented, Trevino’s aunt, testified that Trevino’s mother
was an alcoholic and alluded to family problems.
It is worth examining more closely the FASD evidence Trevino seeks to
develop further, especially the psychological report he has offered since it was
completed in 2004: the April 16, 2004 Privileged and Confidential Forensic
Psychological Evaluation by Dr. Rebecca A. Dyer, Ph.D., of Forensic Associates
of San Antonio. Dr. Dyer’s report sets out the foundation for her report at the
outset:
Based on reviews of his school records, interviews with his mother
and family members, and information provided by Mr. Treviño,
Mr. Futrell [one of Trevino’s federal habeas attorneys] reported
that there was evidence suggesting that Mr. Treviño has a history
of fetal alcohol syndrome and possible cognitive limitations as a
result of prenatal exposure to alcohol. Mr. Wolf interviewed the

78 738 F.3d at 681 (emphasis added).
79 678 F. Supp. 2d at 497.
36
 Case: 15-70019 Document: 00513587138 Page: 37 Date Filed: 07/11/2016

No. 15-70019
attorney who was the ‘Lead Defense Counsel’ at Carlos Treviño’s
Capital Murder trial--Mr. Mario Treviño (not related), who
acknowledged that information regarding Carlos’ childhood,
including his pre-natal exposure to alcohol, was not explored or
presented as potential mitigating factors in the punishment phase
of Carlos’ trial. In the affidavit provided by Attorney Mario Treviño
to Carlos’ habeas attorneys, Mario Treviño, indicated that the
defense did not attempt to uncover mitigating evidence about
Carlos Treviño’s life, as “mitigation experts were not used very
much at the time of the trial.” It was requested that I evaluate
Carlos Treviño regarding the possibility of fetal alcohol syndrome
and the effects of prenatal alcohol exposure on his cognitive
functioning at the time of the capital offense.

The opinions presented in this report are based on approximately
twelve and a half hours of face-to-face contact with Mr. Treviño,
all of which occurred at the Polunsky Unit of the Texas
Department of Criminal Justice. During this time, I interviewed
Mr. Treviño and I administered a comprehensive battery of
psychological tests.

Dr. Dyer also conducted interviews with a mitigation specialist, with
Trevino’s mother (face-to-face), and with the senior warden at the Polunsky
unit. She reviewed a number of documents, including Trevino’s school records
(from prior to the trial), juvenile probation records (from prior to the trial),
detention records (from prior to the trial), various sworn affidavits and
statements (post-trial), and miscellaneous documents largely concerning
psychological tests and correspondence (apparently all post-trial). Based on all
of the above, Dr. Dyer wrote the following summary and opinion:
Review of Mr. Trevino’s history indicates a number of factors that
likely had a negative impact on his cognitive, behavioral and
emotional development. Most notable is his heavy prenatal
exposure to alcohol. Prenatal exposure to alcohol has been
associated in the literature with the development of Fetal Alcohol
Syndrome (FAS), a term that was first coined in 1973. Fetal
Alcohol Syndrome is diagnosed when there is apparent facial
dysmorphology, growth restriction, and central nervous system
and neurodevelopmental abnormalities, with or without confirmed
37
Case: 15-70019 Document: 00513587138 Page: 38 Date Filed: 07/11/2016

No. 15-70019
prenatal exposure to alcohol. Additionally, extensive research has
documented that individuals who were exposed to alcohol
prenatally may present with some, but not all of the characteristics
of FAS, which is described as being someone with Fetal Alcohol
Effects (FAE). This term is frequently used to describe adults who
were not identified with FAS as children, as longitudinal studies
have found that as individuals age, some of the characteristic signs
of FAS become less prominent, particularly the facial
dysmorphology and growth restriction characteristics. However,
studies have shown that individuals with signicant [sic] prenatal
exposure to alcohol tend to demonstrate varying degrees of
cognitive, academic, attentional and behavioral difficulties
throughout child and adulthood.

Based on my extensive interviews with Mr. Treviño, the results of
a comprehensive battery of psychological tests, my interview with
his mother, and my review of the documents associated with his
medical, developmental, social and academic history, it is my
opinion that Mr. Treviño presents with the characteristics of FAE.
Though not clearly conclusive, his facial features include notable
distinguishing eye characteristics. His stature is slightly below the
norm for his age and ethnic group, although this finding is
obviously a less distinguishing feature. His prenatal exposure to
alcohol was significant, as was his low birth weight. It is
unfortunate that early childhood medical records are unavailable,
although Mr. Treviño’s mother admits that she largely neglected
to obtain regular medical consultation and check-ups, as well as
medical evaluation and treatment in the case of illness or what she
determined to be minor, non-life threatening injuries. The results
of the intellectual assessments indicate that Mr. Treviño is
functioning within the low average range of intellectual
functioning. His verbal, performance and full scale IQ scores are
consistent with those found in individuals with FAE. Other
characteristics consistent with FAE include a history of employing
poor problem-solving strategies, attentional deficits, poor
academic functioning, memory difficulties, and history of
substance abuse, all characteristics that are present in Mr.
Treviño’s history and test results. Although many of these
characteristics are also consistent with a history of physical abuse,
neglect, and other clinical and behavioral disorders, it is important
to note that research has indicated that only individuals with
FAS/FAE tend to present with long term problems with adaptive
38
Case: 15-70019 Document: 00513587138 Page: 39 Date Filed: 07/11/2016

No. 15-70019
functioning, regardless of home background, history of childhood
abuse or trauma, social background, or history of clinical and/or
behavioral problems. In essence, individuals with histories of
significant prenatal exposure to alcohol have been shown to present
with deficits in adaptive behavior, poor judgment, attentional
deficits, and other cognitive deficits throughout childhood,
adolescence and into adulthood, which is not the finding in
individuals with other childhood difficulties. In addition, the
deficits found in FAS/FAE children tend to become more
debilitating as these individuals get older.

***

Based upon the current forensic psychological assessment, it is my
opinion that Mr. Treviño’s history, his clinical presentation and
the psychological test results are consistent with the
characteristics of FAE. This finding does not indicate the presence
of mental retardation. Based on my evaluation, Mr. Treviño’s
history of FAS would not have significantly interfered with his
ability to know right from wrong, or to appreciate the nature and
quality of his actions at the time of the capital offense. However,
his history of FAE clearly had an impact on his cognitive
development, academic performance, social functioning, and
overall adaptive functioning. These factors, along with his
significant history of physical and emotional abuse, physical and
emotional neglect, and social deprivation clearly contributed to Mr.
Treviño’s ability to make appropriate decisions and choices about
his lifestyle, behaviors and actions, his ability to withstand and
ignore group influences, and his ability to work through and adapt
to frustration and anger. These deficits would not only have
impacted any of Mr. Treviño’s decisions to participate in or refrain
from any activities that resulted in his capital murder charges, but
also likely impacted his ability to understand and make
appropriate decisions about the plea offer presented by his counsel.
These findings are consistent with his description of his inability
fully comprehend his attorney’s explanation of the original plea
offer of a life sentence (“forty-years”), his social awareness with
regard to his assumption of loyalty toward his friends and family
members, and his ability to confide in his attorneys with regard to
his apprehensions and perceived sense of mistrust. Likewise, as
his original defense attorneys apparently did not explore, develop
or present any mitigating evidence regarding Mr. Treviño’s
39
 Case: 15-70019 Document: 00513587138 Page: 40 Date Filed: 07/11/2016

No. 15-70019
prenatal, developmental, social and academic background at the
time of his trial, they were unlikely aware of his deficits.

Further, according to my review of visitation records from the
Bexar County Detention Center, Mr. Treviño was held, pending
his capital murder trial, his original attorneys visited and
conferred with him on very few occasions, for short periods of time.
Such minimal contact, coupled with the failure to explore and
develop mitigating evidence regarding Mr. Treviño history of FAE
would have made it difficult for his original defense attorneys to
effectively assist him in making appropriate decisions with regard
to his defense. [emphasis added]

Thus, Dr. Dyer’s report offers mitigating evidence that tends to counter
at least some of the aggravating evidence offered by the state. The question
under Strickland, of course, is not whether it offers any mitigating evidence at
all, but whether that evidence, compared to the aggravating evidence, is
weighty enough that it conceivably could have swayed at least one juror’s vote.
The district court’s own prior opinion in this case strongly suggests that
FASD evidence, if properly developed and admitted, conceivably could have
changed the result. As noted above, the district court emphasized in both its
2009 and 2015 opinions that it considered the most aggravating factor to be
Trevino’s apparent lack of remorse:
The latter point cannot be over-emphasized. Salinas’ murder was
particularly brutal and senseless. Yet Petitioner has consistently
refused to acknowledge his role in her murder, even to his own trial
counsel, claiming instead to have been “too stoned” to remember
exactly what happened that evening. Petitioner’s own affidavit,
executed June 11, 2004, contains not even a scintilla of sincere
contrition; instead Petitioner expresses hostility and blames his
trial counsel for allegedly misrepresenting the terms of a proffered
plea bargain for a life sentence without accepting any

40
 Case: 15-70019 Document: 00513587138 Page: 41 Date Filed: 07/11/2016

No. 15-70019
responsibility for his own rejection of the offer after it was
accurately described to Petitioner. 80

The possible FASD evidence in this case goes to the heart of that most
aggravating evidence, as the district court itself opined at the very end of its
2009 opinion:
Petitioner’s third claim herein, i.e., his complaint of ineffective
assistance arising from his trial counsel’s failure to adequately
investigate petitioner’s background and develop and present
mitigating evidence during the punishment phase of his trial
regarding petitioner’s deprived and abusive childhood, was
procedurally defaulted. Reasonable minds could not disagree on
this point. Nonetheless, reasonable minds could disagree over
whether petitioner has satisfied the “fundamental miscarriage of
justice” exception to the procedural default doctrine in connection
with this claim. Petitioner’s federal habeas counsel has presented
this Court with evidence suggesting petitioner suffers from the
effects of Fetal Alcohol Syndrome, including the inability to express
remorse in a recognizable manner. Furthermore, petitioner has
presented this Court with evidence showing even the most
minimal investigation into petitioner’s background (through
rudimentary interviews with family members and review of
relevant school and medical records) would have revealed a wealth
of additional mitigating evidence far more substantial that the
superficial account of petitioner’s childhood given by petitioner’s
lone witness during the punishment phase of trial. Under these
circumstances, reasonable minds could disagree over whether
petitioner has satisfied the fundamental miscarriage of justice
exception to the procedural default doctrine with regard to his
Wiggins claim, i.e., petitioner’s complaint that his trial counsel
rendered ineffective assistance at the punishment phase of trial by
failing to (1) adequately investigate petitioner’s background and
(2) discover, develop, and present available mitigating evidence. 81

80 Trevino v. Thaler, 678 F.Supp.2d at 471–72 (quoted in Trevino, 2015 WL 3651534
at *3).
81 678 F. Supp. 2d at 497-98 (emphasis added).
41
 Case: 15-70019 Document: 00513587138 Page: 42 Date Filed: 07/11/2016

No. 15-70019
Thus, in its 2009 opinion, the district court drew the reasonable
conclusion that the FASD evidence, if introduced, could tend to show that
Trevino was unable “to express remorse in a recognizable manner,” which the
district court continues to characterize as the most aggravating factor. Indeed,
evidence of Trevino’s FASD could go to the very heart of that issue.
Accordingly, reasonable jurists could not only debate the district court’s
dismissal on the pleadings of Trevino’s FASD claim under the Strickland
prejudice prong, but would agree that the court erred.
In sum, we conclude that reasonable jurists would not debate the district
court’s dismissal of his Wiggins claim pertaining to character witness
testimony because, at a minimum, he has failed to show under Strickland that
failure to discover and introduce that evidence prejudiced him in any way.
We also conclude that reasonable jurists would agree that Trevino has
at least sufficiently pleaded an ineffective-assistance-of-trial-counsel claim
pertaining to the failure to investigate and discover potential evidence of FASD
on both the performance and prejudice prongs of Strickland, and that he
sufficiently pleaded cause to excuse his procedural default under
Martinez/Trevino. We are careful to note that his potential FASD evidence may
go beyond the proposed expert testimony of Dr. Dyer or any other experts.
Indeed, the FASD evidence may incorporate lay witness testimony, such as
personal and family history interviews relevant to a possible FASD diagnosis,
that might otherwise have been excluded as character witness testimony under
this opinion.
D. EVIDENTIARY HEARING

Finally, Trevino argues that the district court should have held an
evidentiary hearing based on the court’s own representation that it would hold
some sort of hearing once Trevino filed his second amended petition. Neither
Trevino nor the State cites any controlling case law, but the district court’s
42
 Case: 15-70019 Document: 00513587138 Page: 43 Date Filed: 07/11/2016

No. 15-70019
decision is a classic discretionary decision. The district court’s dismissal was
based not on findings of fact but on the pleadings alone. No reasonable jurists
would debate whether the district court had the authority to forego an
evidentiary hearing, which would resolve disputed facts, before entering a
decision based on the pleadings alone, which implies the absence of disputed
facts (or at least implies that any such disputes must be resolved in the
petitioner’s favor). We therefore deny a COA on this issue.

IV. CONCLUSION

For the reasons set out above, we grant a COA issue on the questions of
whether the district court erred by: (1) concluding that Trevino failed to
sufficiently plead cause to excuse his procedural default under
Martinez/Trevino; (2) concluding that Trevino’s trial counsel’s performance
was not deficient under Strickland with respect to his failure to discover and
introduce FASD evidence; and (3) concluding that Trevino’s trial counsel’s
performance did not prejudice Trevino to the extent his counsel failed to
investigate and present evidence, both expert and lay, showing that Trevino
suffers from FASD. We reach this conclusion not only because reasonable
jurists could debate whether the district court erred in dismissing his FASD
claim but because reasonable jurists would agree that the district court erred
by doing so.
We deny a COA on all other issues, including the proposed character
witness testimony. 82
COA GRANTED IN PART AND DENIED IN PART.

We reiterate that Trevino’s FASD evidence may incorporate lay witness testimony
82

relevant to his potential FASD diagnosis that might otherwise have been excluded as
character witness testimony.
43