United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 31, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-50021
_____________________
MICHAEL DEAN GONZALES,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas, Midland
USDC No. MO-99-CV-72
_________________________________________________________________
Before JONES, Chief Judge, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:
Michael Dean Gonzales was found guilty of capital murder
and sentenced to death. During federal habeas proceedings, the
State conceded that he is entitled to a new sentencing hearing.
The issues here include an alleged Brady claim and two
ineffectiveness allegations. Finding no error that meets the
demanding AEDPA review standards, we AFFIRM.
I. BACKGROUND
A Texas jury convicted Gonzales of killing Manuel and
Merced Aguirre. Gonzales stabbed the Aguirres to death in their
home in Odessa, Texas on the night of April 21, 1994. Mr. Aguirre
was stabbed eleven times and Mrs. Aguirre had stab wounds too
numerous to count, including many defensive wounds. A blood
spatter expert testified that Mr. Aguirre was overcome quickly, but
Mrs. Aguirre fought even after falling to the floor in the attack.
The medical examiner testified that she had been “basically
butchered.”1
The police investigation of the crimes quickly focused on
Gonzales, who, along with his mother, wife, and child, lived in the
house next door to the Aguirres. Prior to the night of the
murders, the Aguirres had complained to the police about being
disturbed by Gonzales’s late night activities. The Aguirres’ son
testified that their fear of Gonzales was one of the reasons why
they had put bars on their windows.
Gonzales was taken into custody for questioning
approximately sixteen hours after the murders, and he consented to
a luminol test of his arms, hands, and shoes. Except for the site
on Gonzales’s arm where the police had drawn blood that day, the
luminol test did not indicate the presence of blood on the portions
of Gonzales’s body that were tested. Gonzales was released from
custody after being questioned.
The police found a “blood transfer” stain on a camper
parked in the alley between the Aguirre and Gonzales houses.
Police also noticed that the alley had recently been swept clean.
An anonymous Crime Stoppers informant reported that Gonzales had
1
These facts are largely taken from the opinion of the Texas Court of
Criminal Appeals affirming Gonzales’s conviction on direct appeal. Gonzales v.
State, No. 72,317 (unpublished).
2
swept the dirt in that alley the morning after the murders.
Police also found a red pepper on the floor underneath
Mrs. Aguirre’s body. The same type of pepper was found on
Gonzales’s back doorstep, and a bowl of the same peppers was found
in his refrigerator. Detective Snow Robertson testified at trial
that he had attempted, unsuccessfully, to locate such peppers in
local stores. There was evidence that these peppers were not
native to Texas and were unique to a certain area of Mexico.
Linda Olivarez testified that on the night of the
murders, Gonzales and his wife and child came to her home around
10:15 p.m. Gonzales had brought with him a plastic bag that he
left outside by Olivarez’s front gate. Gonzales left with a man in
a truck, and returned shortly thereafter. He asked his wife to
pick up the plastic bag when they left. The State’s theory was
that the plastic bag contained the bloody clothing Gonzales had
worn when he stabbed the Aguirres.
On the day after the murders, a neighbor found property
belonging to the victims in front of the dumpster located on the
route from Gonzales’s house to the Olivarez home. Police later
found more of the Aguirres’ property in or around the dumpster.
Although there was no sign of forced entry, the Aguirres’
son had identified a microwave, a VCR, a camera, a stereo, and a
.22 pistol as missing from their house. Less than a week after the
murders, Gonzales asked Olivarez and her husband, Julian, if they
wanted to buy a microwave oven. Julian told Gonzales he would have
3
to see it first. Julian, Linda, and Gonzales went to Gonzales’s
house, where Gonzales showed them a VCR, a camera, and a stereo for
sale. The Olivarezes purchased the microwave, VCR, and stereo.
Gonzales also showed Julian a .22 caliber pistol, but told him it
was not for sale. Gonzales said, “They are on to me.” When Julian
asked what he meant, Gonzales replied, “No, I can’t tell you.”
After the Olivarezes took the items to their home,
Gonzales retrieved the stereo because they had not paid for it yet
and he had already sold it to someone else. During interrogation,
Daniel Lugo, a member of Gonzales’s gang, told the police that he
had the Aguirres’ stolen stereo, which he had gotten from Gonzales.
Gonzales’s fingerprint was found on the back of the stereo. The
pistol was eventually recovered from Delia Sanchez, who testified
that she purchased it from Gonzales. All of these items were later
identified as those stolen from the Aguirres’ home. Some empty
shell casings found in a box at Gonzales’s house were determined to
have been fired from the Aguirres’ gun.
Police also found a white Dexter & Russell kitchen knife
in Gonzales’s home. The medical examiner testified at trial that
this type of knife could have caused both of the victims’ wounds.
On cross examination, the medical examiner stated that he could not
rule out the possibility that Mrs. Aguirre was stabbed with more
than one knife.
Gonzales was arrested fifteen days after the murders and
charged with capital murder for the murder of more than one person
4
during the same criminal transaction. Upon arrest, Gonzales had
two teardrop tattoos on his face; at trial, an officer testified
that these tattoos were a gang symbol signifying the number of
people a person has killed. Gonzales was in a gang called “Homies
Don’t Play.” No one else was charged in the murders.2
On the day Gonzales was arrested, Charles Kenimer, a
guard at the local jail and Gonzales’s relative, saw Gonzales leave
a police station interrogation room with Detective Robertson and a
Texas Ranger. Kenimer testified that Gonzales seemed upset and
that he tried to calm Gonzales by stating, “Boy, you really got
these officers upset. I don’t know what you said.” Kenimer
testified that Gonzales responded, in Spanish, “They’re trying to
pin this rap on me, this murder rap on me. They can’t do it. They
don’t have any evidence. Although I did it, you know, but they
don’t have anything to go on.”3
During the guilt-innocence phase, the defense strategy
was to highlight evidence of other parties’ involvement in the
2
Detective Robertson suspected that two other gang members, Daniel
Lugo and Jesse Perkins, were involved in the murders. Julian Olivarez believed
that both of them probably had something to do with the murders. Lugo had told
a friend that there were dead bodies in the Aguirres’ house at least an hour
before the crime was reported by the Aguirres’ son.
3
In part of his habeas petition for which this court did not grant
a COA, Gonzales argued that his counsel was ineffective for failing to impeach
Kenimer with the somewhat different statement Kenimer made soon after this
confession. Then, Kenimer reported that:
I was escorting [Gonzales] back to his cell, in D Block. He then
blurted out “They can’t pin nothing on me”. I told him I don’t
know, I’m not familiar with what your case is. Michael Gonzales is
my third cousin, on my mother’s side, and he knows I’m his cousin.
Michael then said “I did it, but they can’t pin nothing on me.” I
then told him I don’t know what you’re talking about. He replied
was (sic) “On the murder of the old man and the old lady.”
5
offense, and to emphasize the State’s burden of proof. The
prosecution did not request a jury instruction on the law of
parties. Thus, the jury was required to find that Gonzales
intentionally caused the death of both victims by stabbing them.
During closing argument, defense counsel argued that the evidence
strongly suggested that other suspects were involved, and that
there was no direct evidence that Gonzales murdered both victims.
Defense counsel repeatedly reminded the jury that Gonzales could
not be held responsible for an accomplice’s criminal conduct.
Nevertheless, during his final closing argument, the prosecutor
argued, without objection, that Gonzales was guilty of capital
murder even if he killed only one of the victims and aided and
abetted someone else in the killing of the other victim. During
deliberations, the jury asked the following question: “we need
clarification on capital murder versus murder verdict. If Mr.
Gonzales murdered one individual only, then does his association
make him guilty of both.” The trial judge responded by referring
the jury to the charge.
The jury found Gonzales guilty of capital murder.
Following the punishment phase, the jury answered the special issue
on future dangerousness affirmatively and answered the special
issue on mitigation negatively; thus, Gonzales was sentenced to
death. The Texas Court of Criminal Appeals affirmed the conviction
on direct appeal in June 1998. Gonzales v. State, No. 72,317
(unpublished). Gonzales’s state habeas application was denied by
6
the trial court and the Texas Court of Criminal Appeals. Ex Parte
Michael Dean Gonzales, No. 72,317, Writ No. D-23,370.
Gonzales filed his federal habeas petition in January
2000, raising six claims for relief: (1) the prosecutor denied him
due process by concealing the exculpatory negative result of a
luminol test for blood; (2) he was denied effective assistance of
counsel on direct appeal because his attorney did not appeal the
denial of his motion for new trial; (3) he was denied effective
assistance of counsel at the guilt and punishment phases of his
trial (nine sub-claims); (4) his unwarned confession to Kenimer
violated his Fifth Amendment right against self-incrimination;
(5) he was denied due process because the prosecutor knowingly
failed to correct Kenimer’s false testimony that he spontaneously
confessed to him; and (6) the prosecutor denied him due process by
knowingly allowing a police officer to give the jury the false
impression that his teardrop tattoos meant that he had killed two
people.
Gonzales filed a supplemental petition in August, 2000,
asserting that the State’s psychological expert witness testified,
unconstitutionally, that race is an indicator of future
dangerousness. The State conceded that this claim is valid and
entitled Gonzales to a new sentencing hearing. The district court
so ordered, and neither party has appealed its ruling on this
point.
In March 2001, the district court held a two-day evidentiary
7
hearing on the Brady and ineffective assistance claims. The
district court denied relief in a carefully written opinion and
denied Gonzales’s request for a certificate of appealability
(“COA”).
II. DISCUSSION
This court granted a COA for Gonzales’s claims that:
(1) the prosecutor withheld exculpatory evidence in
violation of the Due Process Clause by concealing the negative
result of a luminol test;
(2) trial counsel rendered ineffective assistance by
failing to refute a police officer’s testimony that the two
teardrops tattooed on Gonzales’s face represented the number of
people he had killed; and
(3) trial counsel rendered ineffective assistance by
failing timely to object to a police officer’s testimony that
Gonzales’s mother hid knives from Gonzales because she feared that
he was going to kill her and his family.
This court denied a COA for Gonzales’s procedurally
barred claims and his cumulative ineffective assistance of counsel
claim. See Gonzales v. Dretke, No. 03-50021 (5th Cir. Feb. 7,
2005).
A. Standards of Review
Gonzales is not entitled to federal habeas relief on
these claims unless the state court’s adjudication of the claims
(1) resulted in a decision that was contrary to, or
8
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that 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). A decision is “contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the
United States . . . if the state court arrives at a conclusion
opposite to that reached by th[e] Court on a question of law or if
the state court decides a case differently than th[e] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000). A decision
“involve[s] an unreasonable application of [] clearly established
Federal law, as determined by the Supreme Court of the United
States . . . if the state court identifies the correct governing
legal principle from th[e] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Id.
at 413, 120 S. Ct. at 1523. The inquiry into reasonableness is
objective rather than subjective, and the court is not authorized
to grant relief simply because the court concludes in its
independent judgment that the state court decision applied clearly
established federal law erroneously or incorrectly. Instead,
habeas relief may be granted only if the state court’s decision is
both incorrect and objectively unreasonable. Id. at 409-11, 120
S. Ct. at 1521-22. A state court’s findings of fact are presumed
to be correct unless the petitioner rebuts the presumption by
9
“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Federal law concerning the disclosure of exculpatory
evidence is clearly established: The prosecution must disclose to
the defense evidence that is favorable and material to the
defendant’s guilt or punishment. United States v. Bagley, 473 U.S.
667, 674-75, 105 S. Ct. 3375, 3379 (1985); Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 1196 (1963). To establish a Brady
violation, a defendant must show: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119
S. Ct. 1936, 1948 (1999).
The law governing ineffective assistance claims also is
well-established: To succeed on these claims, Gonzales must show
that his counsel’s performance was deficient and that he was
actually prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
Whether counsel’s performance was deficient is determined by
examining whether the challenged representation fell below an
objective standard of reasonableness. Kitchens v. Johnson, 190
F.3d 698, 701 (5th Cir. 1999). The court’s “scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. “[C]ounsel is strongly presumed to have
rendered adequate assistance and to have made all significant
10
decisions in the exercise of reasonable professional judgment.”
Id. at 690, 104 S. Ct. at 2066.
The test for prejudice under Brady and Strickland is the
same: Gonzales must establish that there is a reasonable
probability that, if the evidence had been disclosed, and/or if
counsel had not performed deficiently, the result of the proceeding
would have been different. A reasonable probability of a different
result is shown when the suppressed evidence or counsel’s mistakes
undermine confidence in the outcome of the trial. Kyles v.
Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995);
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
The issue before this court is not whether Gonzales made
the required showing under Brady and Strickland. Instead, under
AEDPA, the issue is whether the state court’s decision——that
Gonzales did not make the required showing——was contrary to, or an
unreasonable application of, that clearly established federal law.
See Busby v. Dretke, 359 F.3d 708, 717 (5th Cir. 2004).
B. Merits
1. Disclosure of the Luminol Test
Gonzales argues first that the state court unreasonably
applied clearly-established federal law when it decided that the
prosecutor did not unconstitutionally withhold exculpatory evidence
by concealing from the defense that the luminol test was negative.
When Gonzales was taken into custody for questioning
11
sixteen to eighteen hours after the murders, police officers
Lambert and Thomas conducted a luminol test on Gonzales’s hands,
arms, and shoes. Luminol becomes fluorescent when it comes into
contact with any traces of blood. The only area that appeared
fluorescent was at the crook of Gonzales’s arm, where blood had
been drawn shortly before the test. Lambert’s report characterized
the test result as “inconclusive.”
Defense counsel were aware of the report describing the
luminol test as “inconclusive.” When, after trial, they learned
that the result was actually negative, they sought a new trial,
arguing that the prosecution’s deception violated Gonzales’s due
process rights.
At the hearing on the motion for new trial, the
prosecutor conceded that the perpetrator probably would have become
bloodstained if he had inflicted all of the stab wounds that the
victims sustained. Detective Thomas testified that, on the day of
the test, he orally informed Detective Robertson that the result
was negative. Robertson did not recall receiving that information
from Thomas and did not mention it in his report.
Lambert and Thomas testified that they did not ask
Gonzales whether he had washed his hands and arms in the sixteen
hours before the test because they did not think it could have
affected the result. Gonzales appeared well-groomed and clean at
the time of the test. Thomas believed that it would have been
“very difficult” for Gonzales to have completely removed all of the
12
blood from his skin before the luminol test. Lambert testified
that luminol can reveal invisible traces of blood on a surface that
appears to be clean. Both officers agreed that “negative” would
have been more accurate than “inconclusive” to describe the test
result.
Detective Robertson believed, in contrast, that Gonzales
could have washed all of the blood from his skin in the interval
between the murders and the luminol test. Wilson Young, a
serologist with the Texas Department of Public Safety, testified
that Gonzales could have successfully removed all invisible traces
of blood from his skin during the time between the murders and the
luminol test. He admitted that he did not know whether it was more
difficult to remove invisible traces of blood from human skin than
from other surfaces, because he had no training or experience using
luminol on skin.
The trial court denied the motion for new trial.
Gonzales raised the issue in his state habeas application. The
state court recommended that relief be denied, stating that there
was no necessity for a fact finding hearing as there was ample
evidence in the record for the court to rule on the relief sought,
and that this claim was fully litigated in the hearing on
Gonzales’s motion for a new trial. The Texas Court of Criminal
Appeals accepted that recommendation.
The federal district court held that the prosecutor had
an obligation to reveal the negative test result even though
13
defense counsel had access to the prosecutor’s entire file,
including Lambert’s report, and even though Gonzales was present
when the test was conducted and the results were immediately
obvious to him. The district court concluded, however, that the
negative test result was not material because there is no
reasonable probability that it would have changed the jury’s
finding that Gonzales caused the death of both victims.4 The court
observed that Gonzales could have worn clothes that concealed his
skin and could have disposed of any bloody clothing prior to
entering his home. Thus, evidence that there was no blood on his
skin sixteen or eighteen hours after the murders did not negate
evidence that implicated him. The court was not persuaded by
Gonzales’s argument that the bloody hand-print found on the kitchen
wall near Mrs. Aguirre’s body proved that the perpetrator did not
wear gloves when committing the crime. The court noted that the
hand-print was not used as evidence against Gonzales although it
could have belonged to the perpetrator; the hand-print could also
have been that of the victim or of a second assailant. The court
stated further that, after having reviewed a videotape of the crime
scene, introduced into evidence at the guilt-innocence phase of
trial, the court was convinced that the blood was surprisingly
4
Gonzales argues that the district court applied a too-stringent
materiality standard in holding that the evidence “would not have changed” the
jury’s verdict. The issue at this stage, however, is not whether the federal
district court applied the wrong standard, but whether the state court’s decision
was an unreasonable application of federal law. Based on our conclusion that the
test result was not concealed from Gonzales’s defense, we need not reach the
question of materiality under Brady.
14
isolated and not the bloody scene Gonzales described in support of
his Brady claim.
The state court’s decision to deny relief is not
unreasonable, even when considered in the light of new evidence
presented at the federal evidentiary hearing,5 as the test result
was not concealed. Gonzales was present during the test and saw
the result. Even assuming that he did not understand the
implications of the test, his attorneys had access to an open file
that contained Lambert’s report describing the test result as
“inconclusive.” Although defense counsel chose not to investigate
further because of Lambert’s conclusion, they acknowledged that
“inconclusive” could cut either way. Had counsel asked Gonzales
what had happened during the test, his response would have alerted
counsel to the possibility that the evidence could be exculpatory.
In short, defense counsel knew of information that would have
enabled them to discover the actual test result if they had
questioned Gonzales or the police officers who administered the
test.
2. Ineffective Assistance: Teardrop Tattoos
5
At the hearing, Gonzales presented the testimony of a forensics
expert who performed an experiment to demonstrate the unlikelihood of a negative
luminol test on a person who had just committed a bloody crime. This experiment
did not duplicate the conditions of the crime and the test conducted on Gonzales.
The expert coated his left hand with blood, let it sit for an hour while playing
a computer game, took a shower to remove the blood, and then a few hours later
applied luminol. In contrast, Gonzales had at least sixteen hours to remove any
blood from his skin. The expert’s test did not prove that blood could not be
removed under the circumstances of this case, and the expert testified that he
had never seen any reference to luminol on human skin.
15
Gonzales’s principal ineffective assistance claim is that
the state court unreasonably applied federal law when it decided
that trial counsel were not ineffective although they failed to
refute Detective Robertson’s testimony about Gonzales’s teardrop
tattoos.
When Gonzales was arrested two weeks after the offense,
he had two teardrops tattooed on his face. At trial, Detective
Robertson testified that teardrops tattooed on a gang member’s face
represent the number of people that the individual has killed.
Defense counsel objected on the ground that Robertson was
unqualified to give an expert opinion on the subject. After
Robertson described his gang-related training, the trial court
overruled the objection and admitted the testimony. Defense
counsel did not cross-examine Robertson about the tattoos, and did
not present expert testimony about the possible meaning of the
tattoos at the guilt phase of trial. In closing argument, the
prosecutor characterized the tattoos as an admission of the murders
of two people:
Some of the days that you were here, you saw me wearing
a Shriner pin. I am a Shriner. I am proud of that, and
I wear that symbol proudly. Well, gangsters in their own
way have their symbols and they wear them proudly. Two
teardrops. What does that mean? That means he has
killed two people. And the symbol is there for those of
his kind to see and appreciate. He doesn’t try to hide
it. It is as much as leaping out and saying to you, “I
did it, but they will never prove it.”
On direct appeal, Gonzales argued that Robertson’s
testimony about the two teardrop tattoos was offered to prove that
16
he had committed two extraneous murders, and that his counsel
rendered ineffective assistance by failing to object to the
testimony on that ground. The Texas Court of Criminal Appeals
disagreed, stating that, from the context of the testimony,
Robertson seemed to be presenting evidence that Gonzales committed
the murders of Mr. and Mrs. Aguirre. The court concluded that,
because the testimony was not extraneous offense evidence, trial
counsel did not render ineffective assistance by failing to object
to it as such.6
In his state habeas application, Gonzales raised three
claims with respect to Robertson’s testimony about the teardrop
tattoos: (1) the prosecution violated Brady by failing to reveal
that teardrop tattoos on the face of a gang member have many
possible meanings, as opposed to the false testimony at trial that
they mean that the person bearing such marks murdered someone;
(2) the prosecution allowed Detective Robertson to present false
testimony concerning the teardrop tattoos; and (3) trial counsel
rendered ineffective assistance by failing to investigate
(including by consulting with a gang expert or Gonzales) the
meaning of the teardrop tattoos and failing to use the fact that
6
In a motion for rehearing, Gonzales reiterated that Robertson’s
testimony about the teardrop tattoos was related to an extraneous offense. He
asserted that the Court of Criminal Appeals ignored that Robertson referred to
“people” in relation to the tattoos but called the victims by their names
elsewhere in his testimony. Gonzales’s motion for rehearing concluded: “A
review of all the testimony of Robertson clearly shows that the evidence of
tattoos did not relate to the instant offense.” The Court of Criminal Appeals
denied rehearing.
17
such tattoos can have many different meanings, and by failing to
object to Robertson’s testimony as evidence of an extraneous
offense.
In support of his state habeas application, Gonzales
presented three affidavits, all stating that teardrop tattoos have
multiple meanings. In one, Gonzales himself averred that
The tear drop tattoos on my face did not mean that I had
killed two people.
Gonzales also presented the affidavit of a private investigator,
who related a hearsay conversation with a gang expert about what
meaning the tattoos can have and was told that they have “many
meanings.” Finally, a probation officer averred that the meaning
of the tattoos “varies from gang to gang,” and is most commonly
associated with violence. Only the third affidavit elicited even
arguably admissible evidence. The state habeas court denied
relief, stating that the ineffective assistance claim had been
treated on direct appeal.
In his federal habeas petition, Gonzales asserted for the
first time that because the tattoos were the only evidence that he
murdered both of the Aguirres, trial counsel rendered ineffective
assistance by failing to rebut Robertson’s opinion about the
meaning of the tattoos. Gonzales argued further that trial counsel
could have nullified Robertson’s opinion with the testimony of a
street gang expert and that the prosecution knowingly allowed
Detective Robertson to give the jury the false impression that his
18
teardrop tattoos meant that he had killed any two people, including
the Aguirres, when Robertson knew that such tattoos can signify the
killing of a member of a rival gang.
At the federal evidentiary hearing, Robertson testified
that, before trial, he did not talk to Gonzales’s counsel about the
teardrop tattoos. He testified that, if they had asked him about
the tattoos, he would have researched the topic more thoroughly and
would have discovered that the tattoos had alternative, innocent
meanings. Officer McCann, the Odessa police department’s gang
expert, testified that he would have told counsel, had they
interviewed him, that teardrop tattoos have many meanings,
including mourning for a dead or imprisoned gang member, or prior
incarceration. Finally, a gang expert testified that teardrop
tattoos relating to killings committed by the wearer usually have
a different appearance and location than the ones on Gonzales’s
face. He opined that Gonzales’s tattoos are the “mourning” type
and that Robertson’s trial testimony was misleading.
The State offers two theories why the evidence presented
at the federal evidentiary hearing should not be considered.
First, the State contends, albeit in a footnote, that Gonzales was
not entitled to any federal evidentiary hearing, as he “failed to
develop the factual basis” of his teardrop tattoo claim with
admissible evidence in state court. The State correctly relies on
AEDPA for its formulation of the narrow grounds on which federal
courts can conduct evidentiary hearings on habeas petitions from
19
state convictions. See 28 U.S.C. § 2254(e)(2) (permitting a
federal evidentiary hearing if the defendant “has failed to develop
the factual basis of a claim in State court proceedings” only if
the federal claim relies on a new rule of constitutional law, a
newly discovered factual predicate, or actual innocence supported
by clear and convincing evidence). But see Guidry v. Dretke, 397
F.3d 306, 323 (5th Cir. 2005) and opinion on denial of rehearing en
banc. Second, the State argues that this evidence is “unexhausted”
because it was not offered in state court. It is true that “[e]ven
if the petitioner raises precisely the same legal claims in state
and federal proceedings, reliance in the two proceedings upon
different factual grounds that ‘fundamentally’ alter the legal
claim will foreclose a conclusion that the claim is exhausted.” 2
RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE
§ 23.3c, at 1087 (2005); see Graham v. Johnson, 94 F.3d 958, 968
(5th Cir. 1996). Here, it is not clear that Gonzales has presented
“material additional evidentiary support that was not presented to
the state court.” Graham, 94 F.3d at 968. Instead, the testimony
offered in the federal hearing simply reinforces his state court
affidavits. In any event, we need not discuss these powerful
procedural contentions further, because even if the evidence
presented at the federal evidentiary hearing is considered,
Gonzales has not proved that the state courts unreasonably
determined his ineffectiveness claim.
While the district court found Gonzales’s attorneys
20
deficient, it also concluded that Gonzales was not prejudiced under
Strickland because, considering all of the evidence against him,
the tattoos were not critical to his conviction for both murders.
The district court reasoned that the tattoos’ significance
concerning the murders was open to interpretation, even absent
objection, and that the tattoos were not definitive like the
fingerprint and ballistic evidence that implicated Gonzales in both
murders.7 It therefore concluded that there is not a reasonable
probability that the result would have changed with expert
testimony or argument challenging the meaning of the tattoos and
when Gonzales acquired them.
Gonzales contends that Robertson’s testimony that the two
teardrops meant he had killed two people was extremely damaging
because it was the only physical evidence that he personally killed
both victims.8 He asserts that even if his counsel chose not to
dispute the meaning of the tattoos, they could have argued that the
7
Gonzales asserts that the district court may have confused the facts
of this case with another case, because the murder weapon was a knife, no
fingerprint evidence was recovered from the scene, and there has never been any
fingerprint or ballistic evidence implicating him in both murders. It is
Gonzales who errs. One of Gonzales’s fingerprints was found on the back of the
stereo stolen from the victims’ home. Also, ballistics testing indicated that
some empty shell casings found in a box at his home had been fired from the
victims’ .22 caliber gun that also was stolen from their home on the night of the
murders. Accordingly, the district court was not confused when it referred to
ballistic and fingerprint evidence in this case.
8
This argument is contrary to his state court contention that the
teardrops were evidence of extraneous murders, and thus could be said to
represent an unexhausted or procedurally defaulted claim. The State does not so
contend, however, and it seems reasonable that the implications of the tattoos
may be considered irrespective whether they pertained to the Aguirres’ murder,
as the state courts found, or to extraneous murders.
21
tattoos were irrelevant because the State failed to prove that he
acquired them after the Aguirres were murdered.
Gonzales also urges that the detective’s interpretation
of the tattoos was highly significant in the context of the whole
trial. The prosecution emphasized in closing argument that
Gonzales had two tattoos; the prosecutor obviously regarded the
testimony as important to proving that Gonzales killed two people.
Defense counsel did not object to Robertson’s testimony, did not
present any alternative theory as to the tattoos’ meaning during
the guilt phase of trial, and never mentioned the tattoos in
closing argument, despite the fact that the prosecutor referred to
them as a silent confession to murdering the two victims. The
jurors were not informed that the meaning of the tattoos was open
to interpretation——they had only heard Detective Robertson’s
testimony that they meant that Gonzales had killed two people.
Finally, although the State never proved when the tattoos were
obtained, the defense never pointed that fact out to the jury
during the guilt phase.
Despite Gonzales’s comprehensive argument, we, like the
district court, conclude that Gonzales was not prejudiced by his
trial counsel’s failure to refute Robertson’s testimony regarding
the meaning of the tattoos. That testimony is subject to
interpretation, as evidenced by the fact that Gonzales himself
argued in state court that the testimony related to extraneous
offenses, and not to the charged murders of Mr. and Mrs. Aguirre.
22
The lack of evidence concerning whether Gonzales got the tattoos
before or after the murders would have been obvious to the jury.
Most important, however, is that Gonzales’s expert in the federal
habeas proceedings could not rule out the possibility that the
number of teardrops represented the number of people Gonzales had
killed. If counsel had presented such expert testimony at trial,
the prosecution would still have countered that Gonzales’s two
tattoos meant that he had killed two people. At best, defense
attorneys could have argued that teardrop tattoos have multiple
meanings, one of which is inculpatory to Gonzales.
Further, expert testimony about the tattoos would not
change the fact that Gonzales confessed to Kenimer, nor would it
refute the other substantial circumstantial evidence that he
committed both murders. The evidence presented at trial easily
lends itself to the inference that Gonzales stabbed Mr. Aguirre,
who was easily overcome, and then moved on to murder Mrs. Aguirre,
who fought back valiantly. Gonzales alone sold and profited from
the Aguirres’ possessions. “[A]ny arguable weakening of the
State’s [teardrop tattoo] evidence resulting from testimony
questioning [the meaning of the tattoos] must be viewed in light of
the totality of the evidence the State produced at trial.” Leal v.
Dretke, 428 F.3d 543, 549 (5th Cir. 2005).
Given the strength of the evidence against Gonzales, it
was not unreasonable for the state courts to decide both that
Gonzales could not show a reasonable probability of a different
23
result and that counsel’s failure to investigate the tattoos, even
if deficient, did not undermine confidence in the outcome of the
trial. We are mindful of the requirement that we must look
“through the prism of AEDPA deference.” Ward v. Dretke, 420 F.3d
479, 499 (5th Cir. 2005). As noted in Ward: “While we may take
issue with the correctness of this determination, we cannot say
that it constitutes an objectively unreasonable application of
federal law to the facts of this case. “[W]e must always keep in
mind that the statutory term ‘unreasonable’ requires a very high
deference to state court decisions.” Neal v. Puckett, 286 F.3d
230, 249 (5th Cir. 2002) (en banc) (Jolly, concurring); see also
id. at 246 (per curiam) (“[O]ur focus on the ‘unreasonable
application’ test under Section 2254(d) should be on the ultimate
legal conclusion that the state court reached and not on whether
the state court considered and discussed every angle of the
evidence.”).
3. Ineffective Assistance: Gonzales’s Mother’s Testimony
Finally, we consider whether the state court unreasonably
applied federal law when it decided that trial counsel did not
render ineffective assistance by failing timely to object to
Detective Robertson’s testimony that Gonzales’s mother hid knives
from him because she was afraid that he was going to kill her and
his family.
Detective Robertson testified on direct examination that,
24
after Gonzales’s arrest, police found knives hidden under a couch
cushion in the house where Gonzales lived with his mother, wife,
and child. The prosecutor asked who led the police to those
knives, and Robertson responded: “The criminalistics team found
them. Michael Gonzales’ mother told me about them.” The
prosecutor asked, “And why were they in there?” Robertson
responded: “Because she was afraid that he was going to kill her
and his family.” After the jury heard this testimony, defense
counsel objected:
Excuse me, your Honor, I was a little slow in getting on
my feet on that one. It’s obviously hearsay and it is a
rather extremely wild accusation that this lady harbored
this fear from her son. I object to that answer. I
object to the conclusion that this witness has drawn.
There is no predicate for it. There is nothing involved
in this case that would cause an investigation to be made
of such an allegation and I think that this statement was
made simply for the purposes of showmanship in front of
the jury.
Counsel asked the trial court to strike “the last remark” that
Robertson made and instruct the jury to disregard it. The trial
court granted the motion and instructed the jury not to consider
“the last remark” for any purpose.
On direct appeal, the Texas Court of Criminal Appeals
characterized the testimony as “improper.” It concluded, however,
that Gonzalez had not demonstrated prejudice under Strickland
because he had “set[] forth no argument as to why the instruction
to disregard did not cure the error.” The state habeas court
denied relief on this claim on the ground that it was treated on
25
direct appeal.
Gonzales argues that he has proved prejudice: counsel
should have done more to prevent the jury from hearing this
damaging testimony or to protect Gonzales from it by requesting a
mistrial. He contends that the jury was never told to disregard
the irrelevant fact that knives were found hidden under a cushion
in the home he shared with his mother; and that the testimony the
jury was instructed to ignore was so inflammatory that no
reasonable juror could have been expected to ignore it. He asserts
that the state court’s conclusion that the instruction to disregard
the testimony cured the error is unreasonable, in the light of the
enormous prejudice caused by a hearsay accusation that a client’s
mother thought him capable of murdering her and his family.
The federal district court stated that it was hard to
imagine that a juror could disregard testimony that Gonzales’s
mother hid her knives because she feared her son. Nevertheless,
the district court concluded that the state court’s decision was
objectively reasonable and denied relief. We agree. Gonzales has
not demonstrated that the state court unreasonably concluded that
the trial court’s instruction to disregard that testimony was
adequate to cure any error, or that the state court unreasonably
applied Strickland when it decided that counsel did not render
ineffective assistance by failing to request a mistrial.
III. CONCLUSION
26
The state courts did not unreasonably apply Strickland
and Brady. The judgment of the district court denying Gonzales’s
petition for federal habeas relief on these conviction-related
issues is, therefore,
AFFIRMED.
27
Gonzales v. Quarterman
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-07-31
Citations: 458 F.3d 384
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