Case: 12-70035 Document: 00516880487 Page: 1 Date Filed: 08/31/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 31, 2023
No. 12-70035
____________ Lyle W. Cayce
Clerk
Moises Sandoval Mendoza,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:09-CV-86
______________________________
Before Richman, Chief Judge, and Higginbotham and
Southwick, Circuit Judges.
Per Curiam:
Moises Sandoval Mendoza was convicted of capital murder by a Texas
jury and sentenced to death. He later filed an application in district court for
habeas relief. In an earlier appeal, because his initial counsel had a conflict of
interest, we remanded for appointment of additional counsel and further de-
velopment of potential claims of ineffective trial counsel. An amended appli-
cation was filed, but the district court rejected all the new claims.
We AFFIRM.
Case: 12-70035 Document: 00516880487 Page: 2 Date Filed: 08/31/2023
No. 12-70035
FACTUAL AND PROCEDURAL BACKGROUND
Moises Mendoza was convicted and sentenced to death in 2005.
Since his conviction, he has sought relief from the judgment entered against
him on direct appeal and in numerous filings for writs of habeas corpus.
Mendoza’s victim was Rachelle Tolleson. She lived in Farmersville,
a small town in northeast Texas. See Mendoza v. State, No. AP-75,213, 2008
WL 4803471, at *1 (Tex. Crim. App. Nov. 5, 2008). On March 17, 2004,
after visiting her mother’s home, Ms. Tolleson and her five-month-old
daughter, Avery, arrived at their house around 10:00 p.m. The next morning,
Ms. Tolleson’s mother went to the house, as was common practice. The
back door was wide open. The bedroom was in chaotic disarray, with the
mattress and box springs askew, the headboard broken, other furniture out of
place, and papers and other objects scattered around the room. Baby Avery
was on the bed alone. See id.
Police were summoned, and their investigation identified Mendoza as
a prime suspect. Less than a week before the murder, Mendoza had been at
the Tolleson home for a party of about fifteen people. Ms. Tolleson and
Mendoza spoke a few times, but she told a friend she had no interest in him.
Certain other evidence made police suspicious of Mendoza. See id. at *1–2.
Mendoza was arrested and confessed to killing Ms. Tolleson. He al-
leged that she had willingly gone with him in his truck, even though that
would mean leaving her six-year-old daughter home alone. He then con-
tended that while in his truck, he choked her, causing her to pass out. He
later drove to a field behind his own home, had sexual intercourse with her,
and choked her again. Mendoza then dragged her into the field, where he
choked her more until she appeared dead. He stabbed her in the throat with
a knife to assure her death. After his first interview with police, he moved
2
Case: 12-70035 Document: 00516880487 Page: 3 Date Filed: 08/31/2023
No. 12-70035
her body to a more remote location and burned it. Someone found the body
six days later. See id. at *2.
It was undisputed at trial that Mendoza had murdered Tolleson. To
support capital murder, the indictment charged Mendoza with having com-
mitted the murder in the course of a kidnapping and aggravated sexual as-
sault. The jury found he had committed those offenses as well. Id. at *3.
For a defendant to be eligible for the death penalty in Texas, the pros-
ecution must prove beyond a reasonable doubt that the murder was “inten-
tionally or knowingly” committed and was aggravated by at least one enu-
merated circumstance. TEX. PENAL CODE §§ 19.02(b)(1), 19.03. Once a de-
fendant has been found guilty of capital murder, the jury must make findings
on two special issues before a sentence of death can be imposed. First, the
jury must find beyond a reasonable doubt that “there is a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society.” TEX. CODE CRIM. PROC. art. 37.071, § 2(b)(1).
This “future dangerousness” issue requires the jury to find the “defendant
would constitute a continuing threat whether in or out of prison without re-
gard to how long the defendant would actually spend in prison if sentenced
to life.” Estrada v. State, 313 S.W.3d 274, 281 (Tex. Crim. App. 2010) (quo-
tation marks and citation omitted). Second, the jury must find that there are
no “mitigating circumstances . . . to warrant that a sentence of life imprison-
ment without parole rather than a death sentence be imposed.” TEX. CODE
CRIM. PROC. art. 37.071, § 2(e)(1). The jury must decide both of these special
issues unanimously. TEX. CODE CRIM. PROC. art. 37.071, § 2(d)(2), (f)(2).
The jury returned a verdict of death. On direct appeal, the Texas
Court of Criminal Appeals affirmed Mendoza’s conviction and sentence.
Mendoza, 2008 WL 4803471, at *1. In the state habeas proceeding, the state
trial court appointed Lydia Brandt as state habeas counsel. She raised seven
3
Case: 12-70035 Document: 00516880487 Page: 4 Date Filed: 08/31/2023
No. 12-70035
claims. The state trial court denied relief on all grounds, as did the Court of
Criminal Appeals. Ex parte Mendoza, No. WR-70,211-01, 2009 WL 1617814,
at *1 (Tex. Crim. App. June 10, 2009).
Brandt was appointed to continue her representation as federal habeas
counsel. Mendoza’s federal habeas application asserted the same seven
claims as in state court. In 2012, the district court entered final judgment
denying relief but granted a Certificate of Appealability (“COA”) on four
ineffective assistance of trial counsel (“IATC”) claims. Those claims were
for ineffectiveness due to trial counsel’s “failing to obtain a comprehensive
psycho-social history, by failing to consider, investigate, and present condi-
tion-of-the-mind evidence to negate the mens rea element in the guilt-deter-
mination phase of his trial, and by failing to adequately investigate and de-
velop crucial mitigating evidence.”
Mendoza appealed. Brandt continued as counsel. While the appeal
was pending, the Supreme Court decided Trevino v. Thaler, 569 U.S. 413
(2013). That case extended the Court’s previous holding in Martinez v. Ryan,
566 U.S. 1 (2012), to Texas courts. Trevino, 569 U.S. at 416–17. Under these
two decisions, a federal court may review an IATC claim that was “defaulted
in a Texas postconviction proceeding . . . if state habeas counsel was consti-
tutionally ineffective in failing to raise [the claim], and the claim has ‘some
merit.’” Buck v. Davis, 580 U.S. 100, 126 (2017) (quoting Martinez, 566 U.S.
at 14); see also Trevino, 569 U.S. at 429.
Because Brandt had represented Mendoza as both state and federal
habeas counsel, Mendoza moved for the appointment of conflict-free federal
habeas counsel. We remanded to the district court “to appoint supplemental
counsel” and “to consider in the first instance whether [Mendoza] can es-
tablish cause for the procedural default of any ineffective-assistance-of-trial-
counsel claims pursuant to Martinez and Trevino that he may raise, and if so,
4
Case: 12-70035 Document: 00516880487 Page: 5 Date Filed: 08/31/2023
No. 12-70035
whether those claims merit relief.” Mendoza v. Stephens, 783 F.3d 203, 203
(5th Cir. 2015).
The district court appointed new habeas counsel. That counsel raised
two new IATC claims in November 2016 in a “First Amended Petition for a
Writ of Habeas Corpus.” Both claims alleged defense counsel’s ineffective-
ness at the punishment phase. Mendoza’s amended application conceded
both claims were procedurally defaulted but argued he could overcome the
procedural default under Martinez and Trevino because state habeas coun-
sel’s failure to raise the claims in state court amounted to ineffective assis-
tance of counsel.
Mendoza alleged his trial counsel was ineffective for (1) calling Dr.
Mark Vigen as a defense expert witness and (2) for failing to investigate and
rebut Officer Hinton’s testimony by not interviewing Melvin Johnson, an in-
mate Mendoza had allegedly attacked in prison. Mendoza’s new federal ha-
beas counsel interviewed Johnson. Subsequently, Johnson swore in an affi-
davit that Officer Hinton’s testimony was “patently false,” that the affiant
Johnson was actually the “aggressor,” that Mendoza did not fight back, and
that Johnson “received an extra tray of food” after the attack that he “figured
was a bonus for [his] actions in fighting Mr. Mendoza.”
The district court denied relief on both claims. While Mendoza’s ap-
plication for a COA from this court was pending, the Supreme Court decided
Shinn v. Ramirez, 142 S. Ct. 1718 (2022). There, the Court held that a “fed-
eral habeas court may not conduct an evidentiary hearing or otherwise con-
sider evidence beyond the state-court record based on ineffective assistance
of state postconviction counsel.” Id. at 1734. As a result, Mendoza is barred
from using the Johnson affidavit to support his failure-to-investigate claim
with regards to Officer Hinton’s testimony. See id. Mendoza asked this court
to remand to the district court to consider whether to enter a stay to allow
5
Case: 12-70035 Document: 00516880487 Page: 6 Date Filed: 08/31/2023
No. 12-70035
Mendoza to return to state court to present his IATC claim in investigating
Officer Hinton’s testimony and develop an evidentiary record in support of
that claim. See Rhines v. Weber, 544 U.S. 269, 278 (2005) (allowing a stay in
federal court so additional state proceedings can be conducted).
We summarize. The IATC issues include several that predate our
earlier remand to district court. Those are that trial counsel failed to (1) for-
mulate an integrated defense theory throughout all phases of trial, (2) inves-
tigate condition-of-the-mind evidence to negate mens rea, (3) investigate and
develop mitigation evidence, and (4) present crucial mitigating evidence. Af-
ter the December 2022 district court judgment, we granted Mendoza a COA
on two additional claims: trial counsel was ineffective for (5) presenting Dr.
Mark Vigen’s testimony during the punishment phase of the trial and (6) fail-
ing to investigate a jail-yard fight between Mendoza and Johnson. 1 Finally,
we also discuss whether (7) Mendoza may return to state court to develop a
record regarding the prison fight.
DISCUSSION
This court reviews the district court’s conclusions of law de novo and
its findings of fact for clear error. See Sanchez v. Davis, 936 F.3d 300, 304
(5th Cir. 2019).
I
We first consider whether we even have jurisdiction over this appeal.
The State argues we do not have jurisdiction over the IATC claims raised by
Mendoza’s supplemental, conflict-free federal habeas counsel after our 2015
limited remand. See Mendoza, 783 F.3d at 203–04. Those are claims (5) and
_____________________
1
We deferred a decision on the propriety of granting a COA on the claim that
Mendoza’s state habeas counsel was ineffective for not preserving these issues on appeal.
6
Case: 12-70035 Document: 00516880487 Page: 7 Date Filed: 08/31/2023
No. 12-70035
(6) in our enumeration above. The State contends that those claims are
barred by the Antiterrorism and Effective Death Penalty Act’s
(“AEDPA’s”) restrictions on second-or-successive habeas applications un-
der 28 U.S.C. § 2244(b). According to the State, our remand did not vacate
the district court’s final judgment denying habeas relief. Therefore, the State
argues, Mendoza is procedurally barred by Section 2244(b) from “amend-
ing” his initial application.
Under Section 2244(b), a district court cannot consider a second-or-
successive application unless authorization is obtained from the court of ap-
peals. 2 28 U.S.C. § 2244(b)(3). Mendoza did not obtain such authorization.
If the State is right that this is a second-or-successive application, “the Dis-
trict Court never had jurisdiction to consider [these new claims] in the first
place.” See Burton v. Stewart, 549 U.S. 147, 152 (2007).
Mendoza counters that the State’s argument conflicts with this
court’s mandate, to which we are bound by the rule of orderliness. See New-
man v. Plains All Am. Pipeline, L.P., 23 F.4th 393, 400 n.28 (5th Cir. 2022).
Further, Mendoza argues, our mandate ensured there was no longer any “fi-
nal” judgment under 28 U.S.C. § 1291 because we ordered the appointment
of supplemental federal habeas counsel and reopened litigation on the merits
for any defaulted IATC claims. He contends that this lack of final judgment
_____________________
2
A court of appeals may only authorize a second-or-successive habeas application
in accordance with statutory restrictions. Specifically, a court of appeals must conclude
that the application relies on either: (1) “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously unavailable,” or
(2) newly discovered facts that, if proven, would “establish by clear and convincing
evidence that . . . no reasonable factfinder would have found the applicant guilty.” 28
U.S.C. § 2244(b)(2)(A)-(B). If these requirements are not satisfied, we must dismiss the
second-or-successive application. § 2244(b)(3)(C).
7
Case: 12-70035 Document: 00516880487 Page: 8 Date Filed: 08/31/2023
No. 12-70035
permitted an amended filing under Section 2242 via Federal Rule of Appel-
late Procedure 15.
These are unusual circumstances, ones that will not recur. Men-
doza’s federal habeas litigation began after the Supreme Court’s Martinez
opinion, which seemingly did not apply to federal habeas proceedings by state
prisoners in Texas. It was pending on appeal here when Trevino was decided.
Under those two decisions, a federal court may review an IATC claim that
was “defaulted in a Texas postconviction proceeding . . . if state habeas coun-
sel was constitutionally ineffective in failing to raise [the claim], and the claim
has ‘some merit.’” Buck, 137 S. Ct. at 779–80 (quoting Martinez, 566 U.S. at
14). Mendoza, however, was represented by the same counsel in both his
state habeas proceedings and initial federal habeas proceedings.
An opinion concurring in the limited remand in 2015 acknowledged
that Mendoza’s counsel’s “loyalty to her client reasonably appears to be ad-
versely limited because of her own interests.” Mendoza, 783 F.3d at 207
(Owen, J. [now Richman, C.J.], concurring). The concurrence identified sev-
eral other circuit courts that recognized “when state habeas counsel was also
trial counsel, an inherent conflict of interest is present.” Id. (citing Bloomer
v. United States, 162 F.3d 187, 192 (2d Cir. 1998); Stephens v. Kemp, 846 F.2d
642, 651 (11th Cir. 1988); Riner v. Owens, 764 F.2d 1253, 1257 (7th Cir. 1985);
Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983). In a similar vein, having
the same state and federal habeas counsel would place Mendoza “in the un-
tenable position of being forced to rely on appointed counsel to identify that
counsel’s own failings, if any, and to contend in federal court that her failings
constituted ineffective assistance of habeas counsel.” Id. at 208.
We remanded Mendoza’s case to the district court to appoint supple-
mental counsel and for the court to make the initial decision of whether there
was “cause for the procedural default of any ineffective-assistance-of-trial-
8
Case: 12-70035 Document: 00516880487 Page: 9 Date Filed: 08/31/2023
No. 12-70035
counsel claims pursuant to Martinez and Trevino that he may raise, and if so,
whether those claims merit relief.” Id. at 203.
The State argues that Mendoza’s case is analogous to several cases
outside our circuit, chiefly, Balbuena v. Sullivan, 980 F.3d 619 (9th Cir.
2020), which renders his application second-or-successive despite our re-
mand instructions. In Balbuena, the Ninth Circuit remanded for an indicative
ruling under Federal Rule of Civil Procedure 12.1(b) on the petitioner’s Fed-
eral Rule of Civil Procedure 60(b) motion regarding a new claim that his con-
fession was improperly obtained. Id. at 627, 638. The district court denied
the motion but stayed proceedings and allowed him to return to state court
to exhaust the new claim. Id. at 627–28. The petitioner lost in state court,
then returned to district court to file a renewed Rule 60(b) motion. Id. at 628.
The district court held that adding the new claim was a successive habeas
application. Id. at 635. The Ninth Circuit agreed, rejecting Balbuena’s argu-
ment that his habeas application was “pending” for the purposes of Section
2244 because its denial was still on appeal when he filed his Rule 60(b) mo-
tion in the district court. Id. at 636–37. The court held that once the district
court made a final ruling and the appeal had commenced, the Section 2254
application was no longer pending. Id.
The Balbuena decision is obviously procedurally distinct from the cir-
cumstances here. The type of limited remand under Rule 12.1(b) ordered by
the Balbuena court, one that seeks an indicative ruling, does not disturb final-
ity in the district court. See id. at 638; FED. R. APP. P. 12.1. Nor does it allow
the district court to consider the merits or a motion under Rule 15. See Bal-
buena, 980 F.3d at 638. Instead, under Rule 12, the district court indicates
how it would rule on the Rule 60(b) motion (or an equivalent) if its jurisdiction
were later restored. FED. R. APP. P. 12.1. advisory committee notes to 2009
amendment. The appellate court “retains jurisdiction” over the entire
9
Case: 12-70035 Document: 00516880487 Page: 10 Date Filed: 08/31/2023
No. 12-70035
matter. FED. R. APP. P. 12.1(b); 2 STEVEN S. GENSLER ET AL., FEDERAL
RULE OF CIVIL PROCEDURE, RULE 62.1 (2023).
Here, we did not remand for an indicative ruling. See Mendoza, 783
F.3d at 203. Further, we retained only partial jurisdiction (i.e., “jurisdiction
in the remainder of the case”), and so, we restored jurisdiction to the district
court to hear any new IATC claims if Mendoza could overcome the proce-
dural default of ineffective state habeas counsel. See id. We therefore agree
with Mendoza that this case is procedurally distinct from Balbuena and the
other out-of-circuit cases the Government cites. 3
We also agree with Mendoza that the effect of our mandate was to
reopen litigation in the district court. Our remand in this case was not unlim-
ited, though. It was defined in scope to those IATC claims potentially de-
faulted by a conflicted state habeas counsel now available under Martinez and
Trevino. 4 Even so, once litigation was effectively reopened on the merits for
those limited claims, Section 2242 allowed an amended filing: an application
“may be amended or supplemented as provided in the rules of procedure ap-
plicable to civil actions.” 28 U.S.C. §2242. The relevant civil rule on
amended and supplemental pleadings is Federal Rule of Civil Procedure 15.
Learned authority interprets Rule 15 to mean that “[o]nce [a] case has been
_____________________
3
The Government cites five courts of appeals cases as support for the argument
that “after the district court’s judgment is final (in the sense that it is appealable), a filing
containing habeas claims is a second-or-successive application, even if the petitioner’s
appeal is still pending.” See Phillips v. United States, 668 F.3d 433, 435 (7th Cir. 2012);
Beaty v. Schriro, 554 F.3d 780, 783 n.1 (9th Cir. 2009); Ochoa v. Sirmons, 485 F.3d 538, 540
(10th Cir. 2007); Williams v. Norris, 461 F.3d 999, 1003 (8th Cir. 2006); United States v.
Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); United States v. Terrell, 141 F. App’x 849, 852
(11th Cir. 2005).
4
We decline to consider the Government’s argument raised for the first time on
appeal that Mendoza’s new claims are barred by AEDPA’s statute of limitations. Wood v.
Milyard, 566 U.S. 463, 474 (2012).
10
Case: 12-70035 Document: 00516880487 Page: 11 Date Filed: 08/31/2023
No. 12-70035
remanded, [a] lower court [may] permit new issues to be presented by an
amended pleading that is consistent with the judgment of the appellate
court.” 6 WRIGHT & MILLER ET AL., FEDERAL PRACTICE & PROCEDURE §
1489 (3d ed. 2022). Indeed, in its response before the district court, the Gov-
ernment answered on the merits and did not challenge jurisdiction. Further,
the district court entered a new final judgment when it completed its remand
duties.
Both parties urge us to resolve the broader question of whether a ha-
beas filing is second-or-successive when proceedings on the initial applica-
tion are ongoing. The Government urges us to follow several circuits’ lead
in holding that, after a district court’s judgment is final, a filing containing a
habeas claim is a successive application, even if the petitioner’s appeal is still
pending. See Phillips, 668 F.3d at 435; Beaty, 554 F.3d at 783 n.1; Ochoa, 485
F.3d at 540; Williams, 461 F.3d at 1003; Nelson, 465 F.3d at 1149; Terrell, 141
F. App’x at 852. Mendoza urges us to adopt the opposite approach, and ar-
gues that holding otherwise conflicts with Supreme Court precedent in Slack
v. McDaniel, 529 U.S. 473, 487–88 (2000), Banister v. Davis, 140 S. Ct. 1698
(2020), and Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). Mendoza would
have us follow the approaches in United States v. Santarelli, 929 F.3d 95, 105–
06 (3d Cir. 2019) and Whab v. United States, 408 F.3d 116, 118–19 (2d Cir.
2005), which hold that a subsequent habeas application is not successive if an
appeal is ongoing.
We decline to resolve that broader question here because of the unu-
sual timing of Mendoza’s case does not require such a decision. Instead, we
confine our holding to the narrow facts of this case.
II
We now turn to the merits of Mendoza’s appeal. “In a habeas corpus
appeal, we review the district court’s findings of fact for clear error and its
11
Case: 12-70035 Document: 00516880487 Page: 12 Date Filed: 08/31/2023
No. 12-70035
conclusions of law de novo, applying the same standards to the state court’s
decision as did the district court.” Escamilla v. Stephens, 749 F.3d 380, 387
(5th Cir. 2014).
Mendoza first argues that the district court erred in denying his
motion for an evidentiary hearing. If a petitioner failed to develop the factual
basis of a claim in state court, he may obtain an evidentiary hearing on the
claim in federal court if he shows that: (1) either “the claim relies on . . . a
new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable,” or “a factual
predicate that could not have been previously discovered through the
exercise of due diligence;” and (2) “the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for the
constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). In cases where
Section 2254(e)(2) does not bar the district court from holding an evidentiary
hearing, this court reviews the denial of the evidentiary hearing for abuse of
discretion. Blue v. Thaler, 665 F.3d 647, 655 (5th Cir. 2011).
Mendoza argues that the district court abused its discretion because
the new evidence in the defense team members’ responses to the
interrogatories created a genuine issue of material fact as to whether
Mendoza’s defense team conducted an adequate mitigation investigation.
He asserts that, because he made the “required prima facie showing of a
material issue of fact, the [district] court was required to conduct an
evidentiary hearing.”
“[A] district court’s refusal to hold an evidentiary hearing in a § 2254
proceeding is an abuse of discretion only if the petitioner can show that
(1) the state did not provide him with a full and fair hearing, and (2) the
allegations of his petition, if proven true, . . . would entitle him to relief.” Id.
12
Case: 12-70035 Document: 00516880487 Page: 13 Date Filed: 08/31/2023
No. 12-70035
(alteration in original) (quotation marks omitted). In addition, a third
condition is that federal courts are prohibited “from using evidence that is
introduced for the first time at a federal-court evidentiary hearing as the basis
for concluding that a state court’s adjudication is not entitled to deference
under § 2254(d).” Id. at 656 (citing Cullen v. Pinholster, 563 U.S. 170 (2011)).
Because a federal habeas court cannot “consid[er] new evidence when
reviewing claims that have been adjudicated on the merits in state court,” if
Mendoza’s claim was adjudicated on the merits in state court, it could not
have been error for the court to deny an evidentiary hearing. See Broadnax v.
Lumpkin, 987 F.3d 400, 407 (5th Cir. 2021), cert. denied, 142 S. Ct. 859
(2022).
Mendoza asserts that, because he sought discovery in state court, but
it was denied, the Texas Court of Criminal Appeals failed to provide him with
due process and his claims were not adjudicated on the merits. Mendoza
relies substantially on Fourth Circuit decisions holding that “when a state
court forecloses further development of the factual record, it passes up the
opportunity that exhaustion ensures,” and, therefore, “[i]f the record
ultimately proves to be incomplete, deference to the state court’s judgment
would be inappropriate because judgment on a materially incomplete record
is not an adjudication on the merits for purposes of § 2254(d).” Winston v.
Kelly (Winston I), 592 F.3d 535, 555–56 (4th Cir. 2010); Winston v. Pearson
(Winston II), 683 F.3d 489, 501–02 (4th Cir. 2012).
With respect for that circuit, we have consistently held that “a full and
fair hearing is not a precondition to according § 2254(e)(1)’s presumption of
correctness to state habeas court findings of fact nor to applying § 2254(d)’s
standards of review.” Boyer v. Vannoy, 863 F.3d 428, 446 (5th Cir. 2017)
(quoting Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001)). Such a
requirement is supported neither by the plain text of Section 2254(d), which
makes no reference to a full and fair hearing, nor by the legislative landscape
13
Case: 12-70035 Document: 00516880487 Page: 14 Date Filed: 08/31/2023
No. 12-70035
against which AEDPA was passed, which involved excising from the pre-
AEPDA version of Section 2254 references to a full and fair hearing. Valdez,
274 F.3d at 949–51. Further, “[w]here we have conducted an examination
of whether an ‘adjudication on the merits’ occurred, we have looked at
whether the state court reached the merits of the petitioner’s claim rather
than deciding it on procedural grounds.” Id. at 952.
As in Valdez, evidence relevant to Mendoza’s claims was not included
in the record — due to the Court of Criminal Appeals’ denial of Mendoza’s
motion for discovery — and was not reviewed by the court in making its
decision. Likewise, the Court of Criminal Appeals’ denial of Mendoza’s
claims was based not upon procedural grounds but upon the merits of the
claims, albeit without the benefit of additional material evidence. Ex parte
Mendoza, 2009 WL 1617814, at *1. We conclude that, as we held in Boyer and
Valdez, Mendoza’s claims were adjudicated on the merits. In one precedent,
we held that “where a petitioner’s habeas counsel had raised an issue in the
state habeas court, albeit ineffectively from a constitutional standpoint, the
petitioner was barred by Pinholster from offering new evidence in federal
court precisely because the original claim had been ‘fully adjudicated on the
merits’ in state court.” Broadnax, 987 F.3d at 409 (quoting Escamilla, 749
F.3d at 394–95).
Because Mendoza’s claims were adjudicated on the merits in state
court, an evidentiary hearing could not have aided the district court in its
review. Therefore, the district court did not abuse its discretion in denying
Mendoza’s motion for an evidentiary hearing.
Mendoza also (1) challenges the application of AEDPA deference
under Section 2254(d) to the Court of Criminal Appeals’ decision and
(2) requests this court consider the interrogatories the federal district court
ordered and considered. He premises both this challenge and request on the
14
Case: 12-70035 Document: 00516880487 Page: 15 Date Filed: 08/31/2023
No. 12-70035
ground that, due to the Court of Criminal Appeals’ denial of his motion for
discovery, its decision was not an adjudication on the merits. For the reasons
already explained, we reject these arguments.
Section 2254(d)’s highly deferential standard applies. We now
discuss the relevant claims with that deference.
III
We begin with the four claims for which a COA was granted in 2013.
All four of these claims concern the ineffective assistance of trial counsel. In
order to prevail on an IATC claim, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness” and that
there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). There is “a ‘strong
presumption’ that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104
(2011) (quoting Strickland, 466 U.S. at 689). “‘Surmounting Strickland’s
high bar is never an easy task’ . . . [and] [e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more
difficult.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Because Strickland and Section 2254(d) are highly deferential, our review is
doubly deferential when both apply in tandem. Id.
“When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. . . . [but] whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id.
The 2013 COA was granted on four IATC claims: trial counsel failed
to (1) formulate an integrated defense theory throughout all phases of trial,
(2) investigate condition-of-the-mind evidence to negate mens rea,
(3) investigate and develop mitigation evidence, and (4) present crucial
15
Case: 12-70035 Document: 00516880487 Page: 16 Date Filed: 08/31/2023
No. 12-70035
mitigating evidence. All four of Mendoza’s claims stem from the premise
that his defense team unreasonably failed to conduct an adequate
investigation of Mendoza’s psycho-social history. Had counsel conducted
an adequate investigation, he asserts, they would have discovered evidence
of adverse childhood experiences and attachment disorder, leading to binge
drinking that culminated in brain damage. With this information, Mendoza
argues his defense team could have — and should have — argued that (1)
Mendoza’s brain damage prevented him from forming the necessary mens rea
of intent to kill; and (2) that on the night of the murder, his attachment
disorder, amplified by the negative relationship with his former girlfriend,
resulted in a catathymic homicide. A catathymic homicide, rather than
intentional murder, is an unintentional “culmination” of the attachment
disorder.
Under Strickland, “strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” 466 U.S.
at 690–91. If counsel opts not to explore a particular line of defense, that
decision must be assessed for reasonableness in light of all the circumstances,
“applying a heavy measure of deference to counsel’s judgments.” Id. at 691.
The Court of Criminal Appeals concluded that the investigation conducted
by Mendoza’s defense team was constitutionally adequate. It found that the
defense team had conducted a “comprehensive and thorough investigation
into [Mendoza’s] psycho-social history” and determined that counsel had
acted reasonably in not further investigating, developing, and presenting the
theories of attachment disorder, alcohol-related brain damage, and
catathymic homicide advocated by Mendoza on habeas. The court based its
conclusion in part on the fact that Mendoza failed to identify on habeas “any
specific, credible fact or event . . . that [his defense team] failed to uncover.”
16
Case: 12-70035 Document: 00516880487 Page: 17 Date Filed: 08/31/2023
No. 12-70035
The record supports that the Court of Criminal Appeals’ decision was
not an unreasonable application of Strickland. Further, the cases Mendoza
cites are distinguishable. In one precedent, the state habeas mitigation
investigation revealed a “tidal wave of information,” including “a childhood
marked by extreme neglect and privation [and] a family environment filled
with violence and abuse.” Andrus v. Texas, 140 S. Ct. 1875, 1879 (2020).
Here, the traditional factors for mitigating evidence and ineffective counsel
were arguably absent, and there is no evidence of a substantial quantity of
missed information that would have swayed the jury’s mind. Id. at 1880.
The Supreme Court has found investigations to be constitutionally
inadequate when counsel did not begin their investigation until a week before
trial, did not seek relevant records, and did not return a willing witness’s
phone call. Williams v. Taylor, 529 U.S. 362, 395–96 (2000). Inadequacy also
was shown when the investigation was limited to reviewing the defendant’s
presentence investigation report and various social services records and
counsel “acquired only rudimentary knowledge of [petitioner’s] history.”
Wiggins v. Smith, 539 U.S. 510, 523–24 (2003). Another example was when
counsel spent only one day or less investigating and spoke only with witnesses
selected by the defendant’s mother. Sears v. Upton, 561 U.S. 945, 952 (2010).
Our final comparator is when counsel “did not obtain any of [the
defendant’s] school, medical, or military service records or interview any
members of [his] family.” Porter v. McCollum, 558 U.S. 30, 39 (2009).
In contrast, Mendoza’s defense team obtained Mendoza’s school and
medical records, as well as his father’s medical records. It spent a
considerable number of hours over the course of a month interviewing
Mendoza, his parents, his siblings, and individuals from his high school and
church. From these records and interviews, Mendoza’s defense team
learned that his father had a history of depression; his cousin had attempted
to sodomize Mendoza when he was a child; his uncle had suffered from
17
Case: 12-70035 Document: 00516880487 Page: 18 Date Filed: 08/31/2023
No. 12-70035
bipolar disorder and had been killed by Mendoza’s cousins after the uncle
tried to kill them; Mendoza had spent time with those same cousins; and that
Mendoza had issues with alcohol and drug use that his family members
thought might have altered his mind. Given the extent of the investigation
conducted by Mendoza’s defense team, the Court of Criminal Appeals’
conclusion that the investigation was not constitutionally deficient was
reasonable.
Even if the investigation conducted by Mendoza’s defense team was
constitutionally inadequate, Mendoza must still establish that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different.” Strickland, 466 U.S. at 694.
“When a defendant challenges a death sentence . . . the question is whether
there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695. We examine
prejudice, though we find the investigation to have been adequate.
Mendoza first argues that he was prejudiced by counsel’s failure to
conduct a thorough investigation because counsel was unable to formulate an
integrated defense theory, and instead presented differing theories of defense
during the voir dire, guilt/innocence, and sentencing phases of the trial. He
asserts that had counsel presented a unified theory, the defense could have
rebutted the prosecution’s arguments that Mendoza chose to commit
violence against women despite his positive upbringing and that his crime
was the result of his evil choices.
The Government argues that the unified theory of defense proffered
by Mendoza on habeas has its own problems. First, Mendoza’s unified
theory posits that Mendoza suffers from attachment disorder, which caused
involuntary abuse of alcohol, which later caused brain damage. Then, on the
18
Case: 12-70035 Document: 00516880487 Page: 19 Date Filed: 08/31/2023
No. 12-70035
night of the offense, his attachment disorder, amplified by his negative
relationship with his former girlfriend, resulted in an unintentional
catathymic homicide. This is a complicated theory to use with a jury.
Second, the jury may well have rejected that Mendoza’s alcohol abuse was
involuntary, especially because jurors had stated during voir dire that
mitigation arguments premised on voluntary intoxication would not be
persuasive. Third, the catathymic homicide theory is inconsistent with the
literature observing that perpetrators of catathymic homicides generally have
no prior history of violence. Additionally, this theory might have opened the
door to otherwise inadmissible evidence regarding Mendoza’s numerous
violent acts. Finally, due to the complex and technical nature of Mendoza’s
proffered theory, the defense would have likely needed to provide additional
experts even though the jury had given negative responses to defense experts
on juror questionnaires. In light of these concerns, it is not reasonably
probable that the outcome of the proceedings would have been different had
defense counsel presented this unified defense theory.
Mendoza next argues that he was prejudiced by the inadequate
investigation because counsel was unable to present condition-of-the-mind
evidence to negate mens rea during the guilt/innocence phase of the trial. He
asserts that had counsel conducted a thorough investigation, the defense
would have been able to present evidence of Mendoza’s attachment disorder
and brain damage that would have negated the mens rea for knowing and
intentional murder.
This argument suffers from many of the same defects as Mendoza’s
claim of prejudice from not having a unified defense theory: the complexity
of the argument, the jury’s negative response to intoxication as a mitigating
factor, and the requirement of additional experts. Especially problematic is
Mendoza’s inability to assert with any certainty that he actually had extensive
brain damage that would have precluded him from formulating the requisite
19
Case: 12-70035 Document: 00516880487 Page: 20 Date Filed: 08/31/2023
No. 12-70035
mens rea. The expert he relied on in state habeas proceedings affirmed that
Mendoza’s defense team “could have conclusively proved the existence of
neuropsychological damage,” and that neuropsychological tests “would
have provided defense counsel with the means to demonstrate for Mr.
Mendoza’s jury how the quality of his brain and the specific damage
sustained to it adversely affected his higher cognitive functioning and
reasoning skills.” (emphasis added). Because “impaired cognitive abilities
due to alcohol abuse tend to recover with abstinence,” however, the extent
of Mendoza’s brain damage at the time of the murder is largely speculative.
Indeed, the Court of Criminal Appeals found that Mendoza had “not
presented persuasive evidence that he has or has ever had a cognitive
impairment.”
Finally, Mendoza argues that the defense team’s inadequate
investigation prevented counsel from presenting evidence regarding his
family’s behavior of criminality and domestic violence and the toxic impact
of his former girlfriend and her family. He contends that the failure to
develop and present this evidence prejudiced him because the defense was
unable to rebut the prosecution’s story that Mendoza had come from a good
environment but simply made evil choices. With respect to sentencing, the
evidence that Mendoza was molded to model criminal behavior is double-
edged: while it “might permit an inference that he is not as morally culpable
for his behavior, it also might suggest [that the defendant], as a product of his
environment, is likely to continue to be dangerous in the future.” Ladd v.
Cockrell, 311 F.3d 349, 360 (5th Cir. 2002); see also Johnson v. Cockrell, 306
F.3d 249, 253 (5th Cir. 2002). Additionally, the prosecution presented
extensive evidence at sentencing that Mendoza had a history of violence,
especially towards women. “[T]he evidence of [the defendant’s] future
dangerousness was overwhelming. When that is the case, it is virtually
impossible to establish prejudice.” Ladd, 311 F.3d at 360. There is not a
20
Case: 12-70035 Document: 00516880487 Page: 21 Date Filed: 08/31/2023
No. 12-70035
reasonable probability that the jury would have concluded that the balance of
aggravating and mitigating factors did not warrant death.
IV
Having dispensed with the four claims for which a COA was granted
in 2013, we turn to the three claims for which a COA was granted in 2020.
The first of those claims is that the actions of Mendoza’s trial counsel
constituted ineffective assistance for the presentation of Dr. Mark Vigen’s
testimony during the punishment phase of the trial. The same standards for
ineffective assistance of counsel discussed above apply, but this claim is
procedurally defaulted because Mendoza did not raise it in his state habeas
proceedings. Because of the default, we first address whether Mendoza’s
trial counsel was ineffective and then whether his procedural default of that
claim was excused by the ineffectiveness of his state habeas counsel under
Martinez and Trevino.
Mendoza argues that his trial counsel was ineffective by calling Dr.
Vigen, an expert psychologist, to testify that (1) Mendoza had no moral
compass or sense of self, (2) there was an absence of traditional mitigation
factors, and (3) Mendoza was dangerous. These claims present a close
question but are ultimately unmeritorious, particularly when this testimony
is read in its proper context and coupled with Dr. Vigen’s experience in other
capital cases and his purported ability to “create great rapport with juries.”
Mendoza first objects to Dr. Vigen’s testimony that Mendoza had no
moral compass or sense of self. Dr. Vigen concluded that Mendoza “is an
immature, psychologically under-developed adolescent-like man who has no
internal sense of himself . . . no inner self, no clear inner identity.” Mendoza
argues that this testimony would have made more sense coming from the
prosecution because “the death penalty calls for a ‘moral
assessment,’ . . . and a person without a ‘compass’ or ‘identity’ arguably is a
21
Case: 12-70035 Document: 00516880487 Page: 22 Date Filed: 08/31/2023
No. 12-70035
person whose life is not worth sparing.” The testimony was not so
unreasonable, as Dr. Vigen also testified that Mendoza was still an adolescent
and that his brain would not be fully developed until his mid-twenties, helping
to explain his psychological condition. Further, Dr. Vigen opined that
Mendoza “has the potential to develop a sense of self and the potential for
rehabilitation and some type of spiritual conversion.” He described
Mendoza’s dawning recognition of his own “depression” and “emptiness,”
and his own potential to gain further self-awareness, better appreciate the
“tremendous seriousness” of his actions, and cultivate remorse. Viewed as
a whole, it was not deficient of trial counsel to believe this testimony would
help Mendoza.
Mendoza next objects to Dr. Vigen’s testimony that the traditional
mitigation factors did not apply to Mendoza. Dr. Vigen testified that “in
most of the cases that I’ve seen there are incidents — there’s the criminal
history in the family or there’s an alcohol and drug instance in the family or
there’s a mental health issue in the family,” but that “[t]here’s something
missing in this case for me as a psychologist . . . those general factors . . . are
just not present.” However, in context, Dr. Vigen was trying to redirect
focus to the factors that were present. The quote above continues: “and the
family is really on one level trying to work very hard and do their very, very
best. On the other level, there is some dysfunction in terms of attachment.
[Mendoza] didn’t attach to his dad. He worked with him all the time, but he
could never talk to him. They could never connect.” Dr. Vigen went on to
explain that Mendoza’s father “has a major affective disorder,” which “may,
in some way, predispose [Mendoza] to alcohol dependency.” Additionally,
earlier in this testimony, Dr. Vigen laid out the mitigation factors. On direct
examination, he testified that Mendoza “[came] from a psychologically
dysfunctional family” with a father “who was a fragile man, who really didn’t
have the power to be a dad” and a “mom [who] was sort of covering in some
22
Case: 12-70035 Document: 00516880487 Page: 23 Date Filed: 08/31/2023
No. 12-70035
ways . . . continually rescu[ing]” Mendoza so that “he really didn’t
experience the consequences of some of his negative behavior.”
Along these same lines, Mendoza argues that “far from attempting to
lessen Mendoza’s culpability, [Dr.] Vigen testified that Mendoza had made
a choice: Mendoza ‘could have chosen’ to live a ‘responsible’ life, but
‘[s]ometimes’ kids ‘don’t [listen].’” Dr. Vigen did testify that Mendoza’s
brother Mario would have been a “good role model” but that “[t]he problem
is [Mario] really feels that he left too early and that he wishes he had been
more of a role model.” When Dr. Vigen said that sometimes kids do not
listen, he was talking about his second opinion, “that [Mendoza] comes from
a psychologically dysfunctional family” and explaining that he was “not
trying to be critical of the family. It’s a good family. But no family is perfect,
and families offer their children a smorgasbord of their good behaviors and
their not-so-good behaviors. Parents don’t control what children come and
take from them . . . Sometimes the kids listen. Sometimes they don’t.
Sometimes they should listen. Sometimes they shouldn’t.”
Although certain aspects of the testimony were not ideal, which is
hardly unusual or constitutionally deficient in general, we are not convinced
the choice to present this testimony as a whole falls outside the “‘wide range’
of reasonable professional assistance.” Harrington, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 689).
The third portion of testimony Mendoza objects to is Dr. Vigen’s
testimony on future dangerousness. The first piece of future dangerousness
testimony Mendoza objects to is when Dr. Vigen admitted on cross
examination: State: “The Defendant has already proven to us, hasn’t he,
that in a free society he is a very dangerous individual, isn’t he? [Dr. Vigen]:
I think that’s — the jury has decided that, and I certainly agree with that.”
But this was at the sentencing phase of trial; at this point, everyone knew the
23
Case: 12-70035 Document: 00516880487 Page: 24 Date Filed: 08/31/2023
No. 12-70035
reality that Mendoza would spend the rest of his life in prison, never in free
society. Dr. Vigen emphasized several times that his assessment was
accounting for the fact that the jury had already convicted Mendoza of capital
murder. Mendoza argues that the “prosecution understood the import of
this testimony and the gravity of the error, arguing in closing that Mendoza’s
‘very own witness, Dr. Vigen . . . told you that [he] is dangerous in
society . . . . So you know the answer to [the future dangerousness]
question.’” The context of the use of Dr. Vigen’s testimony in closing shows
that the prosecution was referring to all the other factors as well:
But it’s not just the prison system. Because that question asked
you whether he is a danger to society, anyone inside or outside
that he may encounter. The question is if he is given the
opportunity, the opportunity to do violence, will he do it? And
you know that he will.
His very own witness, Dr. Vigen. Dr. Vigen told you that this
Defendant is dangerous in society. And the Defendant’s own
words while he sat in our jail, he wrote that he will fight his
conscience until he is forever unconscious. So you know the
answer to that question.
You know, the best predictor of future behavior is past
behavior. And you know already about the escalation of
violence in his life to this point that has already culminated in
the ultimate sadistic act.
The prosecution then segued into the many other incidents in Mendoza’s life
that signified future violence.
Mendoza also objects to another aspect of this future dangerousness
testimony: Dr. Vigen claimed that Mendoza’s “bad behavior persists now
even in the jail,” and despite being imprisoned, Mendoza continues to
“cause[] trouble.” However, throughout his testimony, Dr. Vigen
minimized the severity of Mendoza’s actions in jail, describing them as a
24
Case: 12-70035 Document: 00516880487 Page: 25 Date Filed: 08/31/2023
No. 12-70035
“nuisance,” and his behavior evidencing immaturity, and stating, “You
know, it’s just adolescent behavior . . . [a]ttention-seeking behavior.” Dr.
Vigen also opined that the Texas Department of Criminal Justice could house
Mendoza such that he would present a “low or minimum risk for future
violence,” and that a life sentence of imprisonment would encourage
rehabilitation.
Mendoza argues that this theory that he could be rehabilitated in
prison once he was separated from his “depraved friends” “invited the
prosecution to present Mendoza’s jail record, including [Officer] Hinton’s
(uninvestigated) account of Mendoza’s alleged attack on Johnson.” (citing
Arizona v. Fulminante, 499 U.S. 279, 300 (1991); Hooper v. Mullin, 314 F.3d
1162, 1171 (10th Cir. 2002)). Other evidence, however, independently
invited rebuttal testimony regarding Mendoza’s behavior in prison. For
instance, the priest’s testimony regarding Mendoza’s improved “demeanor
and attitude” during their visits in prison permitted the rebuttal evidence, as
did Mendoza’s brother’s testimony that, apart from “a couple of incidents
where the guards antagonized him,” Mendoza had been a “model citizen”
in prison.
Further, the precedent Mendoza uses to support his objection to the
future dangerousness testimony is unpersuasive. Mendoza analogizes to a
Supreme Court decision holding that counsel’s presentation of expert
testimony regarding future dangerousness was objectively unreasonable.
Buck, 580 U.S. at 118-121. The testimony in that case, though, is quite
distinguishable. In Buck, counsel “specifically elicited testimony about the
connection between [the defendant’s] race and the likelihood of future
violence” and offered an expert report “reflect[ing] the view that [the
defendant’s] race disproportionately predisposed him to violent conduct.”
Id. at 119. The Court stated that, had the testimony been presented by the
25
Case: 12-70035 Document: 00516880487 Page: 26 Date Filed: 08/31/2023
No. 12-70035
state, these racialized arguments would be “patently unconstitutional.” Id.
This far exceeds any deficiency shown in presenting the testimony here.
Additionally, as to all three categories of Dr. Vigen’s testimony to
which Mendoza objects, trial counsel’s choice to present was supported by a
strategic justification. When evaluating an ineffective assistance of counsel
claim, “[t]his court will not question a counsel’s reasonable strategic
decisions.” Bower v. Quarterman, 497 F.3d 459, 470 (5th Cir. 2007); see also
Strickland, 466 U.S. at 691. “Moreover, we have consistently found
counsel’s decisions regarding examination and presentation of witnesses and
testimony to fall within this category of trial strategy which enjoys a strong
presumption of effectiveness.” Pape v. Thaler, 645 F.3d 281, 291 (5th Cir.
2011). Mendoza’s trial counsel explained in affidavits that the presentation
was strategic: Dr. Vigen could “explain the bad with the good,” and Dr.
Vigen could support counsel’s theory that, although Mendoza had fallen in
with a bad crowd and engaged in “depraved behavior, . . . this could be
controlled in prison and eventually lead to some redemption.” Trial counsel
wanted to offer “an explanation for [Mendoza’s] conduct, not an excuse,”
which reflected counsels’ view that “it was better that [the jury] hear [any
damaging information] explained by [the defense’s] expert than by the state’s
witnesses.”
The closest opinion on point Mendoza offers is Magill v. Dugger, 824
F.2d 879 (11th Cir. 1987). There, the defense presented an expert witness
who “testified on cross-examination that Magill was not under the influence
of an extreme emotional or mental disturbance at the time of the crime,”
instead of offering a second expert who “could have testified that Magill
exhibited signs of serious emotional problems at the age of thirteen” and who
“‘definitely would have projected’ the appellant could be involved in a crime
of this magnitude” based on that finding. Id. at 889. Further, in that case,
the Eleventh Circuit stated that it could not “accept the district court’s view
26
Case: 12-70035 Document: 00516880487 Page: 27 Date Filed: 08/31/2023
No. 12-70035
that [counsel] made an informed, strategic choice not to call” the second
expert, because counsel at a hearing stated that he would have called the
second expert if he had been available but could not recall any efforts to
contact that expert and there was no evidence that expert was unavailable.
Id. Here, as discussed above, trial counsel explained the strategic justification
and there was no uncalled witness as in Magill.
This principle that ineffective counsel decisions that amount to
deficiency are those made without strategic justification is supported by other
circuit court opinions on which Mendoza relies. We held in one of the cited
opinions that trial counsel’s performance was deficient when counsel
questioned the defendant about his silence following arrest, allowing the state
to probe this evidence on cross-examination. White v. Thaler, 610 F.3d 890,
902 (5th Cir. 2010). In White, though, an affidavit from defense counsel
made clear that the questioning “was not part of a strategy.” Id. at 900.
Here, by contrast, Dr. Vigen’s testimony served defense counsel’s strategy
to explain that a life prison sentence would control and shape Mendoza’s
behavior for the better. Further, unlike the defendant’s post-arrest silence in
White, Mendoza’s prison conduct was not “otherwise inadmissible
evidence,” White, 610 F.3d at 899, because the State could have presented
evidence of that conduct in its case in chief, see Williams v. Lynaugh, 814 F.2d
205, 207–08 (5th Cir. 1987), and other defense testimony independently
invited the State’s rebuttal. Likewise, Mendoza cites Johnson v. Bagley, 544
F.3d 592 (6th Cir. 2008) and Richards v. Quarterman, 566 F.3d 553 (5th Cir.
2009). Both of those cases turned on a failure to investigate or present
mitigating or exculpatory evidence that existed, not counsel’s decision to
present a certain expert. See Johnson, 544 F.3d at 605; Richards, 566 F.3d at
566–67. Mendoza has not argued that there was a similar traumatic event in
his lifetime that Dr. Vigen could have pointed to as a mitigating factor.
27
Case: 12-70035 Document: 00516880487 Page: 28 Date Filed: 08/31/2023
No. 12-70035
Mendoza also specifically objects to one portion of the strategy
regarding the future dangerousness special issue, arguing that defense
counsel’s choice to focus on Mendoza’s conduct inside prison rather than
outside “was not only legally mistaken but also unreasonable on this record.”
It is plausible, though, that counsel’s strategy stemmed not from a
misunderstanding of the legal standard, but rather from the reality of
Mendoza’s potential sentence. In closing, counsel told the jury, “when you
answer the Special Issues, especially Special Issue Number 1 [the future
dangerousness question], you have to remind yourself that you’re dealing
with that question in the context of prison, because [Mendoza has] already
been convicted of capital murder and that’s where he’s going.”
To show error in this context, Mendoza cites an opinion for the
proposition that, even when a prisoner would never be eligible for parole, the
question is still “whether there is a probability that the defendant would
constitute a continuing threat to society whether in or out of prison.” Estrada
v. State, 313 S.W.3d 274, 284 (Tex. Crim. App. 2010) (quotation marks
omitted). There was no need, the court stated, for the state to prove “beyond
a reasonable doubt that the defendant would get out of prison through means
of escape or otherwise.” Id. Importantly, Estrada further held that the
evidence of the defendant’s brutality and lack of remorse supported the
jury’s future dangerousness finding:
In this case, we decide that the evidence of appellant’s
unremorseful, premeditated, brutal murders of Sanchez and
their unborn child by stabbing Sanchez thirteen times, of his
pattern of using his position of trust as a youth pastor to take
sexual advantage of underage girls in his youth group, of his
threat to “ruin” another former member of the youth group
when she threatened to expose appellant, and of the
opportunities for a life-sentenced-without-parole appellant to
28
Case: 12-70035 Document: 00516880487 Page: 29 Date Filed: 08/31/2023
No. 12-70035
commit violence in prison are sufficient to support the jury’s
affirmative answer to the future[]dangerousness special issue.
Id. at 284–85.
That is the same sort of testimony that was presented by the
prosecution here, which is why Mendoza cannot show that any potential
error in presenting Dr. Vigen’s testimony prejudiced him.
In order to succeed on his Strickland claim, Mendoza would also need
to show that any potential ineffective assistance prejudiced him. See
Strickland, 466 U.S. at 677. Establishing prejudice requires showing “that
there is a reasonable probability” (or, a “probability sufficient to undermine
confidence in the outcome”) “that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 668, 694.
“The likelihood of a different result must be substantial, not just
conceivable.” Trevino v. Davis, 829 F.3d 328, 351 (5th Cir. 20016) (quoting
Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012)).
“When a defendant challenges a death sentence such as the one at
issue in this case, the question is whether there is a reasonable probability
that, absent the errors, the sentencer — including an appellate court, to the
extent it independently reweighs the evidence—would have concluded that
the balance of aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. Because Mendoza’s “death sentence
required a unanimous jury recommendation, TEX. CODE CRIM. PROC. ANN.,
art. 37.071, prejudice here requires only ‘a reasonable probability that at least
one juror would have struck a different balance’ regarding [his] ‘moral
culpability.’” See Andrus, 140 S. Ct. at 1886 (quoting Wiggins, 539 U.S. at
537–38). “In making this determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or jury.”
Strickland, 466 U.S. at 695. “Moreover, a verdict or conclusion only weakly
29
Case: 12-70035 Document: 00516880487 Page: 30 Date Filed: 08/31/2023
No. 12-70035
supported by the record is more likely to have been affected by errors than
one with overwhelming record support.” Id. at 696.
Mendoza also argues that prejudice is shown because the prosecutor
referred to Dr. Vigen’s testimony in closing argument, and during
deliberations, the jury asked about Mendoza’s record while in jail. However,
the jury heard an overwhelming amount of independent aggravating
evidence, including that Mendoza: raped a fourteen-year-old girl twice, and
during one of the rapes performed similar acts on her with a beer bottle and
pen — which he videotaped and then showed to others while laughing;
attempted to strangle a girl at a party and the “only thing that got him off of
[her] was two people getting him off of [her],” put a pill into a girl’s drink,
and, when confronted by the host, “slammed [him] up against [his] friend’s
truck and stuck [a] knife to [his] stomach,” committed multiple robberies,
attacked his younger sister, and told two girls on the night of the murder that
he would cut their throats with a rusty saw. The prosecution also covered
these events in closing.
This substantial aggravating evidence is in addition to the facts of this
murder, which Texas law recognizes “alone may be sufficient to sustain the
jury’s finding of future dangerousness.” Martinez v. State, 327 S.W.3d 727,
730 (Tex. Crim. App. 2010). The jury also heard evidence from other
witnesses about the lack of mitigating circumstances, such as that Mendoza
graduated high school and grew up in a supportive religious home with both
parents and brothers as his role models. “Given the overwhelming
aggravating factors, there is no reasonable probability that the omitted
evidence would have changed the conclusion that the aggravating
circumstances outweighed the mitigating circumstances and, hence, the
sentence imposed.” Strickland, 466 U.S. at 700.
30
Case: 12-70035 Document: 00516880487 Page: 31 Date Filed: 08/31/2023
No. 12-70035
Because Mendoza’s trial counsel was not ineffective, this court need
not and does not consider whether the claims can survive procedural default.
See Nelson v. Davis, 952 F.3d 651, 673 (5th Cir. 2020). “As with any other
IATC claim, the underlying IATC-Participation claim (which, if viable, may
allow a claim that state habeas counsel potential ineffectiveness prejudiced
Nelson, thereby excusing procedural default) requires a showing of two
elements.” Id. (emphasis added).
V
The final issue is whether to remand to the district court to stay, or
consider staying, federal habeas proceedings under Rhines, 544 U.S. at 275.
Mendoza argues that he “has never had a full and fair opportunity to
litigate the merits of his claim that trial counsel were ineffective for not in-
vestigating [Officer] Hinton’s allegedly false testimony.” Because this claim
was never presented in state court, Mendoza cannot rely on the Johnson af-
fidavit to support his claim in federal court under the Supreme Court’s prec-
edent in Shinn v. Ramirez, 142 S. Ct. 1718 (2022). He asks this court in a
motion to remand for entry, or at least consideration, of a Rhines stay so that
he can litigate this claim in state court.
District courts may stay federal habeas proceedings to allow a peti-
tioner to exhaust a claim in state court to ensure that petitioners with mixed
claims do not “forever los[e] [the] opportunity for any federal review of their
unexhausted claims.” Rhines, 544 U.S. at 275. A stay is available where a
petitioner can show: (1) good cause for the failure to exhaust, (2) that the
request is not plainly meritless, and (3) that the request is not for purposes of
delay. Id. at 277–78.
The Government primarily argues that, because Mendoza’s claim is
procedurally barred from being presented in Texas state court, his claim is
“plainly meritless” under Rhines. Neville v. Dretke, 423 F.3d 474, 480 (5th
31
Case: 12-70035 Document: 00516880487 Page: 32 Date Filed: 08/31/2023
No. 12-70035
Cir. 2005). Under Texas law, second-or-successive habeas applications must
be denied unless a habeas petitioner can show that (1) “the factual or legal
basis for the claim was unavailable on the date the applicant filed the previous
application;” and, (2) “but for” the constitutional violation, either “no ra-
tional juror could have found the applicant guilty beyond a reasonable doubt”
or “no rational juror would have answered in the state’s favor one or more of
the special issues” necessary for the sentence of death. TEX. CODE CRIM.
PROC. art. 11.071, § 5(a).
Mendoza argues that his application would not be denied because
Texas courts have previously allowed successive applications where a peti-
tioner claims the State relied on false testimony or withheld evidence. Fur-
ther, he contends that federalism dictates that Texas should be afforded the
opportunity to “decide whether [Ramirez] impacts its application of the
abuse-of-the-writ doctrine” because petitioners are now barred from receiv-
ing federal review of their claims if the evidence is not already in the state
court record. The Government counters that the district court has already
found that Mendoza failed to prove Officer Hinton’s testimony was false, so
he has not lost an opportunity to litigate that claim anyway.
Mendoza’s request for a Rhines stay is meritless in this context. Texas
law forecloses the argument that state habeas counsel’s ineffectiveness ren-
ders the factual basis unavailable at the time of the initial writ. See Ex parte
Graves, 70 S.W.3d 103, 117 (Tex. Crim. App. 2002). Mendoza concedes this
point, but argues that Graves should be “reconsider[ed]” in light of Ramirez
and its subsequent-writ-bar under principles of comity. The opportunity to
reconsider state court precedent, however, is not in itself enough to grant a
Rhines stay. Moreover, the district court already analyzed the affidavit evi-
dence and held that there was no “reasonable likelihood that Officer Hin-
ton’s testimony could have affected the judgment of the jury.”
32
Case: 12-70035 Document: 00516880487 Page: 33 Date Filed: 08/31/2023
No. 12-70035
VI
As to the four claims for which the district court granted a COA, Men-
doza has not shown that trial counsel’s actions in investigating, compiling,
and presenting mens rea and mitigating evidence fell below an objective stand-
ard of reasonableness. As to the remaining claims for which we granted a
COA, Mendoza has not shown that trial counsel was ineffective for present-
ing Dr. Vigen’s testimony and Mendoza’s request for a Rhines stay is plainly
meritless in this context.
We AFFIRM the district court’s judgment and DENY Mendoza’s
motion for a Rhines stay.
33