Granados v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-70009

CARLOS GRANADOS,
Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, 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 JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge.

Sentenced to death in Williamson County, Texas, Carlos

Granados appeals from a final judgment of the United States

District Court, Western District of Texas, denying his petition for

writ of habeas corpus claiming constitutional error in his

conviction and death sentence.

I

The Texas Court of Criminal Appeals affirmed the conviction on

direct appeal1 and the Supreme Court denied certiorari.2 Granados’s

ensuing petition for state habeas relief was denied by the Texas

1
Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002).
2
Granados v. Texas, 538 U.S. 927 (2003).
Court of Criminal Appeals in a per curiam order adopting the

findings of the state trial Judge.3 The present federal proceeding

followed. On recommendation of a federal magistrate judge, the

district court dismissed Granados’s petition and denied a

certificate of appealability. We granted a COA on two issues,

received full briefing, and heard oral argument. The two issues

are:

1. Whether Granados was denied his Sixth Amendment
right to constitutionally effective counsel during
the punishment phase of trial because counsel
allowed her own expert witness, Dr. Walter Quijano,
to testify concerning race or ethnicity; and

2. Whether Granados’s Sixth Amendment rights under
Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi
v. New Jersey, 530 U.S. 466 (2000), were violated
because the State was not required to prove beyond
a reasonable doubt a negative answer to the
mitigation special issue.

We now affirm the denial of federal habeas relief.

II

The Texas Court of Criminal Appeals set out the facts of the

crime:

Katherine Jiminez testified at trial and described
appellant’s actions in detail. She indicated that she
first met appellant in 1993. The two became friends,
spent time together socially, and dated for a short time.
They parted ways soon thereafter, but remained in
friendly contact. Katherine then married Anthony Jiminez
in April of 1994, and on June 13, 1995, she gave birth to
a son, Anthony. Katherine and her husband eventually
separated, and in late 1997, she re-established a
relationship with appellant, who then lived in New York.
In January of 1998, Katherine moved into an apartment of

3
Ex parte Granados, No. 51,135-01 (Tex. Crim. App. 2002) (unpublished).

2
her own in Georgetown. In March, appellant visited her
from New York. After another visit in July of 1998,
appellant decided to return to Texas. Katherine and
appellant agreed that they would live together until
appellant got on his feet. In late August, he began
living with Katherine and three-year-old Anthony in
Katherine’s apartment.

Less than a month later, on Sunday, September 13,
1998, Katherine, appellant, and Anthony returned to
Katherine’s apartment after having lunch at appellant’s
brother’s house. Katherine and appellant were both
supposed to go to work that evening. Katherine planned
to drop Anthony off at her mother’s house, where he would
remain until Katherine could pick him up the next
morning. Appellant wanted Katherine to join him in a nap
that afternoon, but she refused, because she needed to
finish chores around the apartment and because she did
not want to take a nap while Anthony was awake.
Meanwhile, Anthony was in the living room watching
television. Appellant, angry that Katherine would not
take a nap with him, knocked a plate of food from her
hand. The two then retreated to the bedroom where they
began arguing. At that point, Katherine told appellant,
“I don’t even want to talk to you anymore. I don’t want
to look at you. I don’t want you to be around me.... I
don’t want you here. Just get your things and leave.”
Appellant said, “You want me to leave?” and Katherine
said, “Yeah, I want you to leave.”

A brief cooling off period ensued, and the two began
talking again. During this time, Katherine’s sister
Elizabeth called, but appellant said Katherine was busy
and hung up the telephone. Katherine told appellant to
“get his stuff and leave.” Katherine then repeated that
she wanted him to leave. Appellant left the room, and
when he came back asked again, “You want me to leave?”
and she said that she did. Angered, appellant said,
“Fuck it. Fuck it,” and attacked Katherine with a knife.
He stabbed her repeatedly and slashed her throat. Then,
apparently, the knife broke. Katherine struggled and
attempted to placate appellant by telling him that she
loved him. Eventually, appellant began crying, afraid
that he would go to jail. Katherine said that she would
contrive a false story about her injuries if appellant
would simply leave.

Katherine tried unsuccessfully to telephone the
police and to escape, but appellant caught her and

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dragged her to the kitchen. He stabbed her again
repeatedly, and she feigned death. Appellant left the
kitchen, and Katherine heard Anthony scream, I don’t want
to die. Don’t kill me. I don’t want to die.” Stabbed
in the chest, Anthony died within moments.

Later, Katherine heard her sister and her nephew
outside the apartment. Afraid appellant would finally
kill her if she screamed for help, however, she remained
silent. Appellant stayed active throughout the night.
He came to the kitchen where Katherine lay and showed her
that he had slashed his wrists, stating, “Look, I’m going
to die with you.” Later, he telephoned his father.
Several hours later, believing that her death was
imminent, Katherine dragged her body toward her son,
wanting to die by his side.

Meanwhile, Katherine’s family became worried that
they had not heard from her, that she had not arrived for
work, and that she had not left Anthony with her mother
at the regularly scheduled time. Elizabeth Ojeda, one of
Katherine’s sisters, testified that, after she called
Katherine’s apartment, left messages on her answering
machine, visited the apartment, and received no response
to her knock, Ojeda telephoned the apartment manager and
Georgetown Police. Early Monday morning, two officers
visited the apartment on a welfare concern call.
Corporal Gregory Brunson testified that he noticed both
Katherine’s and appellant’s vehicles in the parking lot
of the apartment complex. He also confirmed information
about who was paying utilities at Apartment 3206,
Katherine’s apartment. Corporal Brunson and Officer
Vasquez approached the apartment door and knocked, but
received no response and heard no noise inside the
apartment. Corporal Brunson did not see any lights and
could not see inside the apartment windows when looking
from the north side of the building. Officer Vasquez
telephoned the apartment but received no answer. Upon a
request from the officers, the apartment manager arrived
with a key but was unable to enter the apartment because
of an interior deadbolt. At this point, seeing no other
means of opening the door, Corporal Brunson telephoned
the fire department for assistance. Three firefighters
arrived with what Corporal Brunson described as a
doorjamb spreader, which is used to open deadbolted
doors. After approximately five minutes, the
firefighters opened the apartment door.

Upon entering the apartment, one of the firefighters

4
 exclaimed that appellant had a knife. Corporal Brunson
drew his revolver, approached the door, and saw
appellant, whose right hand was initially hidden. In
response to Corporal Brunson’s orders, appellant raised
his right hand, in which he held a large kitchen knife
covered in blood. After ordering appellant out of the
apartment, Corporal Brunson repeatedly asked appellant to
release the knife. Appellant eventually did so and
Corporal Brunson handcuffed him. Inside the apartment,
Corporal Brunson saw Anthony’s body, Katherine’s bloody
arms protruding from beyond a chair, and blood stains
covering the carpet and walls near the kitchen. Once the
officers determined that no one else was in the
apartment, they allowed medical personnel to enter and
begin treating Katherine, who said to Corporal Brunson,
“He killed my baby, and I have been waiting for you to
come.”4

III

We turn first to the claim that Granados was denied

constitutionally effective defense counsel. He contends that his

lawyer injected race into the deliberations of the jury by

sponsoring testimony and arguing to the jury in the sentencing

phase that Hispanics and African Americans are more likely to be a

future danger to society because of their race.

-1-

To establish a Sixth Amendment violation for failed lawyer

performance, Granados must meet the two part test of Strickland v.

Washington.5 First, Granados must show that counsel’s

representation fell below the prevailing professional norm, an

objective standard of reasonableness drawing upon all the facts and

4
Granados v. State, 85 S.W.3d 217, 220-22 (Tex. Crim. App. 2002).
5
466 U.S. 668 (1984).

5
circumstances of the case. Second, the deficient performance must

be shown to have been “so serious as to deprive [Granados] of a

fair trial, a trial whose results is reliable.”6 This is a highly

deferential standard supported by a strong presumption that the

decisions of counsel fall within a wide range of professional

assistance. Strickland does not allow second guessing of trial

strategy and must be applied with keen awareness that this is an

after-the-fact inquiry. It follows that if counsel has

investigated the facts and law informing possible tacks ahead, his

choice at trial will not be lightly second guessed –– absent a

result that robs the client of a fair trial. And, of course, under

AEDPA a state court decision rejecting a Strickland claim must be

accepted unless it was an unreasonable application of its teaching.

-2-

At the sentencing phase, defense counsel called Walter

Quijano, Ph.D., a clinical psychologist, as an expert witness on

the jury issue of future dangerousness –– whether there was a

probability that Granados “would commit criminal acts of violence

that would constitute a continuing threat to society.”7

Dr. Quijano never examined or tested Granados. He expressed

his opinion in response to questions of defense counsel, who posed

hypotheticals tracking the facts of the case and related personal

6
Bell v. Cone, 535 U.S. 685, 695 (2002); Strickland, 466 U.S. at 687-88.
7
Tex. Code Crim. P. § 37.071(b)(1).

6
circumstances of Granados. Dr. Quijano listed some twenty-two

factors predictive of future dangerousness on a chart before the

jury. The list included “race or ethnicity.”8 He told the jury

that it was one of several statistical facts that “if you just took

the characteristics of, quote, violent people would come up over

and over again in statistical studies.” He also made the following

suggestion:

Race or ethnicity is not politically correct, but we know
that minorities are over-represented in the prison
system. The prison system is about 40 percent black,
about 40 percent Hispanic, and 20 percent white and
others, where I belong to the others. And that’s just
the statistical fact.

He explained that “you first look at the characteristics of the

person you are trying to study (determine which can be controlled)

and make a judgment about the probability of the person’s future

dangerousness.” He told the jury that race is an example of a

characteristic that cannot be controlled, and then told the jury

that “for a person of defendant’s characteristics in a maximum

security prison, the probability is that he will not constitute a

continuing danger to the prison society.” Granados now attacks

counsel’s strategy, specifically for eliciting Dr. Quijano’s

8
Quijano testified that there are three clusters of factors. The first are
statistical factors derived from statistical studies, including age, history of
violence, race or ethnicity, use of a weapon, use of drugs or alcohol,
socioeconomic status, and work stability. The second cluster involves
environmental factors, including family violence, work environment, availability
of a weapon, availability of victims, and availability of drugs or alcohol. The
third cluster includes the presence or absence of mental illness, special
circumstances of the offense, clinical factors (deliberateness of offense),
remorse (felt at time of offense), post-conduct charge behavior, and effects of
incarceration.

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testimony and, he says, for sponsoring race as a sentencing factor

in jury argument at the sentencing phase.

The State replies that Dr. Quijano did not “suggest to the

jury that race or ethnicity should be a factor in the jury’s

decision.” To the contrary, the State argues, Quijano never

retreated from his opinion that Granados would not be dangerous in

a prison setting. He explained that additional circumstances

supported his opinion, including the fact that Granados had

committed an “intrafamily” crime, had a history of “self-

destructive male-female relationship problems,” had shown remorse,

and had not attempted escape. Finally, the state points out that

no one argued race or ethnicity during closing arguments and the

jury was instructed that “it should not allow bias, prejudice or

sympathy play a role in [its] deliberations.”

-3-

In recommending that habeas relief be denied, the state trial

judge made explicit findings that neither of the two defense

counsel nor the state’s attorney made any mention of race or

ethnicity or “suggested in any manner that a decision on future

dangerousness should be based on race or ethnicity.” He rejected

Granados’s Strickland claim, persuaded that trial counsel

“exercised reasonable judgement in deciding to use Dr. Quijano as

an expert witness on the special issues of mitigation and future

dangerousness.”

8
 Turning to the reasonableness of counsel’s strategy, we think

it plain that counsel considered carefully how best to present the

sentencing case, a difficult task considering the violent character

of the crime. Counsel first retained a psychiatrist and

psychologist, Dr. Cantu and Dr. Parker, to examine Granados and

testify as experts regarding the probability of Granados committing

violent acts in the future. Then counsel changed course,

concluding that their testimony might be more harmful than helpful,

a shift that led to the accused strategy. There is nothing to

fault this initial decision not to continue with Drs. Cantu and

Parker. To the contrary, that counsel must look at every witness

he would call as a potential witness for the state is etched in the

brain of every experienced trial lawyer and here there was more.

By not offering expert testimony based on an examination of

Granados, counsel cut off the state’s opportunity to have its

expert examine Granados and offer testimony. And when defense

counsel informed the court that any expert testimony from the

defense would not rest on examination by an expert witness, the

court denied a pending state motion for examination of Granados by

a state expert.

But counsel made a second and larger tactical decision than

simply dropping two witnesses. They chose to change their approach

at trial to future dangerousness –– inevitably a brooding concern

of jurors and most often the point of engagement between the

prosecutor and defense. They elected to offer the jury clinical

9
and statistical data on the question of future dangerousness in an

effort to have the case viewed in those terms rather than remain

focused on Granados and his bloody assaults, accented by the

prosecution. The decision by counsel to approach the question in

the relatively oblique and impersonal terms of a quantitative

presentation lay at the heart of their trial strategy. It included

facing the reality that blacks and latinos had a disproportionate

presence in the state prisons, a social phenomenon about which

counsel could not assume the jury was ignorant. This approach led

directly to the hiring of Dr. Quijano, a clinical psychologist with

a subspecialty in correctional psychology. He was prepared to

speak about the statistics of recidivism, as well as prison life

and conditions. And, with the use of hypothetical questions, Dr.

Quijano was able to relate the data to the life and conduct of

Granados. And as we have noted, this approach avoided the

necessity of personal testing and examination, the door opener to

examination by experts engaged by the State. Dr. Quijano fit the

bill. He had worked for federal and state prison systems and

testified in about 90 capital murder cases, dividing his work

evenly between State and defense. To the point, Dr. Quijano

presented the case in quantitative terms more in the manner of

clinical disinterest and less in the manner of subjective

10
commentary and evaluation of Granados.9

Viewed through the AEDPA lens, we cannot conclude that the

state court’s application of Strickland and rejection of the claim

of ineffective assistance of counsel was unreasonable. These are

difficult and nuanced decisions the trial lawyer must make. That

they were not successful does not make them unreasonable. We are

not persuaded that these tactical decisions introduced an

impermissible use of race or ethnicity or were otherwise

objectively unreasonable. We reject the claim of ineffective

assistance of counsel.

IV

Granados urges that the Texas mitigation issue is

constitutionally flawed in that it does not require the State to

prove beyond a reasonable doubt the absence of mitigating

circumstances. As we understand the argument, this is because the

absence of mitigating evidence is an aggravating circumstance whose

presence increases the maximum punishment for capital murder from

life to death.

The state replies, first, that this claim was never presented

9
Context is everything when evaluating Strickland claims. The use of Dr.
Quianjo’s testimony here is very different from the situation in which he
testified for the State and expressly linked the defendant’s race to the
likelihood of future dangerousness, cases in which the State confessed error.
See, e.g., Saldano v. Roach, 363 F.3d 545, 549 (5th Cir. 2004) (describing how
Quijano “opined that there was a correlation between race and ethnicity and
future dangerousness,” noting that the prosecutor “reminded the jury to consider
the twenty-four factors laid out by Quijano,” and noting how the Attorney General
of Texas confessed error, requiring resentencing); see also id. at 549 n.2
(collecting other cases in which Quijano testified for the state and injected
race into the proceedings).

11
to the state courts and is procedurally defaulted. We will not

pause to address this contention because we are persuaded that the

claim is without merit and must be denied. Under AEDPA, we can

deny unexhausted claims although we could not grant relief.

All the elements of capital murder were put to the jury with

instruction that the evidence had to persuade them beyond a

reasonable doubt. No finding by the judge was required to expose

Granados to the death penalty. And the jury was instructed that it

could give an affirmative answer to the special issues submitted

to the jury in the sentencing phase, including future

dangerousness, only if certain of their answer beyond a reasonable

doubt. Finally, there is no contention in this case that

Granados’s evidence of mitigation could not find expression in the

jury’s answer to the question of future dangerousness.

In sum, the state was required to prove beyond a reasonable

doubt every finding prerequisite to exposing Granados to the

maximum penalty of death. We are not persuaded that Texas violated

any principle of Apprendi or Ring in the trial of this case.

Specifically, it did not do so by not asking the jury to find an

absence of mitigating circumstances beyond a reasonable doubt in

addition to questions it required the jury to answer.10 Put another

way, a finding of mitigating circumstances reduces a sentence from

death, rather than increasing it to death.

10
Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S.
584 (2002).

12
 V

Accordingly, we affirm the decision of the district court

denying relief and dismissing the petition for habeas corpus.

AFFIRMED.

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