Case: 19-70002 Document: 00515612483 Page: 1 Date Filed: 10/22/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-70002 October 22, 2020
Lyle W. Cayce
JOE MICHAEL LUNA, Clerk
Petitioner-Appellant
v.
BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-451
Before DENNIS, GRAVES, and COSTA, Circuit Judges. *
GREGG COSTA, Circuit Judge: **
Joe Michael Luna admitted guilt at his capital murder trial. On the
remaining question of punishment, Luna told the jury that he posed a
continuing danger and wanted the death penalty. The jury followed his wish
and sentenced Luna to death.
After Luna unsuccessfully sought relief in state court, he filed a federal
habeas petition. The district court denied the petition, and we authorized an
*Judge Dennis concurs in the judgment only.
**Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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appeal on only one issue: whether his trial counsel was constitutionally
deficient in his investigation and presentation of mitigation evidence. Under
the demanding standard to obtain federal habeas relief on claims a state court
rejected, we affirm.
I.
We detailed the facts of this case at the certificate of appealability stage,
Luna v. Davis, 793 F. App’x 229 (5th Cir. Oct. 24, 2019), so we provide only a
summary here. Luna strangled Michael Andrade, a premed college student, to
death while burgling Andrade’s apartment. He pleaded guilty before the jury
at the beginning of trial. The state trial court then held a one-phase trial after
which it instructed the jury to find Luna guilty based on his plea and asked it
to answer the special issues relevant to the death penalty.
The state presented evidence showing that Luna would continue to be
dangerous. In addition to extensive testimony establishing his violent past,
the state showed that Luna continued to plot serious crimes while in jail
awaiting trial. He told his cellmate about a plan to escape using the trial judge
as a “human shield.” This was not just talk; Luna had obtained and hidden a
handcuff key in a bar of soap.
At the conclusion of the state’s case, Luna testified on his own behalf and
against his attorney’s advice. Luna told the jury he wanted the death penalty.
Although he expressed remorse for his crimes, he testified that previous
incarceration had not rehabilitated him and future incarceration would only
“make [him] worse.” He also said that he did not “blame none of [his]
circumstances.” On cross examination, Luna stated there was no mitigating
evidence “whatsoever” that should keep the jury from sentencing him to death.
Following Luna’s testimony, his attorney called two other witnesses.
Margaret Drake, a social worker and mitigation specialist, had interviewed
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Luna, his mother, his former stepmother, and two aunts. She testified that
Luna had an unstable childhood, that he was probably physically abused, and
that many of his family members had criminal histories and mental illnesses.
The jury also received Drake’s five-page report, which detailed Luna’s
childhood and highlighted that he may have been sexually abused.
A forensic psychiatrist, Brian Skop, assessed Luna’s future
dangerousness. Skop, who had interviewed Luna, testified that the defendant
had a history of substance dependency, an impulsive personality, and
antisocial personality disorder. Despite these challenges, Skop concluded that
Luna would likely be at a lower risk for violence as time passed.
The defense then rested, and the jury answered the special issues in
favor of the death penalty.
After exhausting his direct appeals, Luna sought habeas relief in state
court. As relevant to our appeal, Luna argued that his childhood sexual abuse
was immediately apparent from Drake’s report. Luna’s theory was that failing
to further investigate the abuse and present it in the form of oral testimony
was constitutionally deficient. He also provided an affidavit from Dr. Jack
Ferrell, which stated that Luna suffered from mental illnesses Skop did not
discuss, including schizophrenia, depression, and substance abuse. The state
habeas court held both that Luna’s counsel provided adequate assistance and
that, if any failure occurred, it did not prejudice Luna.
Luna then sought habeas relief in federal district court on several
grounds. The district court denied relief and a certificate of appealability. He
next sought a certificate of appealability from us, which we granted only on
whether “his trial counsel was constitutionally ineffective for failing to
investigate and present additional mitigating evidence,” particularly “(1) that
his mother knew of and was willing to testify about sexual and physical abuse
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he suffered as a child; and (2) that a thorough examination of his psychological
state would have revealed that he suffers from a variety of mental health
problems, including schizophrenia, depression, and PTSD.” Luna, 793 F. App’x
at 232.
II.
Because the state courts adjudicated Luna’s ineffective assistance claim
on the merits, 28 U.S.C. § 2254(d) provides the governing standard. Under
that provision, federal courts may grant habeas relief only if the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Luna argues that the state court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny.
With the Antiterrorism and Effective Death Penalty Act framing our
review, we turn to the question of whether the state court unreasonably
rejected Luna’s Strickland claim. There is a Sixth Amendment violation if
counsel’s performance was constitutionally deficient and that deficiency
prejudiced the defendant. Strickland, 466 U.S. at 688, 694, 700. To be
“deficient,” trial counsel’s performance must be objectively unreasonable. Id.
at 687–88. Deficient performance prejudices the defendant if there is a
reasonable probability that the outcome of the defendant’s trial would have
been different but for the deficient representation. Id. at 694. Because a
unanimous jury verdict was necessary to sentence Luna to death, the prejudice
inquiry reduces to whether there is a reasonable chance that a single juror
would not have voted for the death penalty if counsel’s performance had met
constitutional standards. Wiggins v. Smith, 539 U.S. 510, 537–38 (2003).
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We assume, without deciding, that Luna’s counsel fell below the
constitutional minimum in failing to investigate and present all mitigating
evidence. See, e.g., Andrus v. Texas, 140 S. Ct. 1875, 1881–82, 1885–87 (2020)
(holding that counsel’s failure to present mitigating evidence constituted
deficient performance). The remaining question is whether the state court’s
prejudice determination—that there was no reasonable probability that
additional evidence of Luna’s sexual abuse and mental illness would have
caused a juror to vote differently—was unreasonable.
It may be that a state court judge could have found prejudice in Luna’s
case. To determine whether a failure to present mitigation evidence prejudiced
a defendant, courts “reweigh the evidence in aggravation against the totality
of available mitigation evidence.” Wiggins, 539 U.S. at 534. 1 Courts have
found prejudice when counsel failed to present childhood abuse and mental
health problems as mitigating evidence. See, e.g., Porter v. McCollum, 558 U.S.
30, 41, 43 (2009) (“It is unreasonable to discount to irrelevance the evidence of
1 Luna argues that the district court’s application of this standard was inappropriate
because Texas does not require jurors to balance aggravating and mitigating evidence. Texas
requires Luna’s jury to determine “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society,”
considering “all evidence admitted at the guilt or innocence stage and the punishment stage,
including evidence of the defendant’s background or character or the circumstances of the
offence that militates for or mitigates against the imposition of the death penalty.” TEX.
CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(1), (d)(1). If the jury answers that question “yes,”
as it did, Texas further requires them to determine “[w]hether, taking into consideration all
of the evidence, including the circumstances of the offence, the defendant’s character and
background, and the personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.” Id. art. 37.071, § 2(e)(1). Both
charges instruct juries to consider all evidence, mitigating or aggravating. Weighing all
evidence is necessary to both questions, so our review—determining whether there is a
reasonable probability a juror would have voted against the death penalty but for inadequate
counsel—does as well. See Andrus, 140 S. Ct. at 1885–87 (recognizing in a Texas case that
this prejudice inquiry requires a court to reweigh the mitigation evidence—what was
presented at trial as well as what should have been—against the aggravating evidence (citing
Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).
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[defendant’s] abusive childhood . . . .”); Rompilla v. Beard, 545 U.S. 374, 391–
92 (2005) (defendant suffered from schizophrenia, “extreme mental
disturbance,” and childhood physical abuse). And Luna points to significant
mitigating evidence that could have been presented, including his mother’s
potential testimony that Luna was a victim of childhood sexual abuse, and that
he suffered from schizophrenia and other mental illness. Luna also has direct
evidence that concerns about his mental health were on the jury’s mind: during
deliberations the jury asked for the “psychiatric report of Dr. Skop,” though the
judge could not give it to them because that report had not been admitted.
But it is not enough for Luna to show that a judge looking at prejudice
on a blank slate could rule in his favor. AEDPA requires Luna to show that a
reasonable judge would have had to reach that result. Harringon v. Richter¸
562 U.S. 86, 102 (2011) (explaining that AEDPA’s relitigation bar allows
federal courts to grant relief only when “there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with this Court’s
precedents”). That he cannot do.
Several factors allow a judge to reasonably distinguish this case from
others in which there was prejudice from counsel’s failure to present mitigating
evidence of mental illness and childhood trauma. The most obvious one is
Luna’s own testimony. He told the jury he could not rehabilitate, that the
death penalty was appropriate, and that no mitigating evidence existed to
compel a contrary conclusion. The Supreme Court has found that trial
counsel’s failure to present mitigating evidence did not prejudice a defendant
in analogous circumstances. See Schriro v. Landrigan, 550 U.S. 465, 475–80
(2007) (denying habeas relief when the defendant testified no mitigating
evidence existed, instructed his attorney to present none, and told the
sentencing court to “bring [the death penalty] right on”).
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That unusual feature of this case alone is likely enough to require us to
defer to the state court’s “no prejudice” determination. But there is more.
Luna’s asking the jury to give him the death penalty should not obscure the
other strong aggravating evidence that existed. He committed a cold-blooded
murder. He had an extensive and violent criminal history, including multiple
home invasions. In some of those he pressed a gun against victims’ heads. In
one, he blindfolded family members and tied their wrists and feet with duct
tape. In yet another, he wrapped residents up in bedsheets and left them
underneath a Christmas tree. Then there is Luna’s postarrest scheme for a
jail break in which he would use the judge as a human shield if the escape did
not go as planned.
On the mitigation side of the ledger, the evidence Luna argues his
counsel should have presented was largely cumulative of what the jury did
hear. Drake’s testimony established that Luna suffered physical abuse,
endured an unstable childhood, and had many family members with criminal
histories and substance abuse disorders. Luna now argues that further
investigation would have revealed further childhood physical and sexual
abuse. But while the jury did not hear oral testimony about sexual abuse, it
did have Drake’s report, mentioning that Luna’s uncle may have molested him
as a child. Likewise, Skop testified that Luna had mental health issues,
including difficulty moderating impulses, substance abuse, and antisocial
personality disorder. To be sure, the evidence of schizophrenia and sociopathy
that Luna says should have been presented is more serious than the conditions
Skop described. But all of these conditions address whether Luna was fully in
control of his actions. The additional evidence of mental health problems is
different in degree, but not in kind. That further distinguishes this case from
ones in which the Supreme Court has found unpresented mitigation evidence
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to be prejudicial under the lens of AEDPA deference. See, e.g., Porter, 558 U.S.
at 41−43; Rompilla, 545 U.S. at 382.
To sum up, a state court may have been able to conclude that the failure
to present mitigating evidence of sexual abuse and mental health conditions
prejudiced the outcome of Luna’s trial. But for the reasons we have explained,
at best for Luna, prejudice was debatable under de novo state court review.
That means the state court did not have to find prejudice. As a result, its “no
prejudice” ruling was not unreasonable, and we lack authority to grant federal
habeas relief.
III.
Luna also appeals the district court’s refusal to hold an evidentiary
hearing. He does not need a certificate of appealability on this issue. Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). But we will consider the issue
only if it is “corollary to” the constitutional violation on which we authorized
an appeal. See id. (quoting Alix v. Quarterman, 309 F. App’x 875, 878 (5th Cir.
2009) (per curiam)); see also Alix, 309 F. App’x at 878 (“[N]on-constitutional
claims are only considered to the extent that they are connected to a claim on
which a COA is granted.”). Insofar as Luna appeals the district court’s denial
of a hearing to establish either the inadequate assistance of state habeas
counsel, or the inadequacy of his trial counsel for grounds other than those we
granted a certificate of appealability on, his appeal is not properly before us.
See id.
As for his hearing request on the Strickland “mitigation evidence” claim
on which we did allow an appeal, the district court did not abuse its discretion
in denying a hearing. As we have held, the state court’s determination that
the lack of mitigation evidence did not prejudice Luna was not unreasonable
even if we assume that his trial counsel was ineffective. Questioning his
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counsel in court would not demonstrate that trial counsel prejudiced Luna.
“[A]n evidentiary hearing is not required on issues that can be resolved by
reference to the state court record.” Schriro, 550 U.S. at 474 (quotation
omitted).
***
The judgment is AFFIRMED.
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