United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 23, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 03-21228
_______________________
RAYMOND DELEON MARTINEZ,
Petitioner - Appellant,
versus
DOUG DRETKE, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Raymond DeLeon Martinez was convicted of capital murder
in Texas state court and sentenced to death. Martinez filed a
petition for a writ of habeas corpus relief under 28 U.S.C. § 2254
in the United States District Court for the Southern District of
Texas, Houston Division. The district court denied the petition,
and, sua sponte, denied Martinez a certificate of appealability
(“COA”). Martinez then filed a Request for the Issuance of a
Certificate of Appealability with this court. For the following
reasons, Martinez’s petition for COA is granted in part and denied
in part. However, his request for habeas relief is denied.
I. BACKGROUND
Martinez was tried and convicted in Texas state court of
capital murder for the July 13, 1983 murder of Herman Chavis during
the course of a robbery.1 SHTr. at 251.2 The following facts were
presented to the jury.
On July 13, 1983, Martinez, accompanied by two other men,
entered the Long Branch Saloon owned and operated by Herman Chavis,
the victim, and his wife, Pauline Chavis Smith. XX Tr. at 212-16,
369-70, 372-73, 414, 530-31.3 Smith recognized the three men from
the previous Monday and Tuesday nights, when they came in,
purchased beer, took only one sip, and left. Id. at 214-18, 224,
253, 384. On this date, the men ordered three Miller Lite beers
and stood at the bar. Id. at 225, 322. Soon thereafter, one of
the men locked the front door, produced a revolver, and told
everyone to “hit the floor.” Id. at 226, 229, 232, 323-25, 328,
378, 381, 600. Martinez also brandished a revolver and threatened
a patron. Id. at 600. He then grabbed the barmaid, shoved the
revolver into her ribs, and demanded the money from the cash
drawer. Id. at 226, 229, 232, 323-25, 328, 378, 381, 600.
1
On March 15, 1984, Martinez was convicted for the capital murder of
Herman Chavis, but the conviction was reversed and remanded for a new trial on
September 21, 1988. SHTr. at 251 (citing Martinez v. State, 763 S.W. 413 (Tex.
Crim. App. 1988)). In 1989, Martinez was retried, convicted, and sentenced to
death by lethal injection. Id.
2
“SHTr.” refers to the state habeas transcript.
3
The Roman numerals refer to the volume number of the trial
transcript, which is abbreviated “Tr.”
2
Martinez was seen reaching into the drawer, although it was later
determined that he took no money. Id. at 396, 234. A verbal
exchange between Chavis and the men ensued, after which Martinez
pointed his gun at Chavis. Id. at 601, 605, 607, 384, 386.
Several shots were fired. Id. at 231, 386. Chavis later died of
a gunshot wound to the back of the head and a gunshot wound through
the back that lodged in his right arm. IXX Tr. at 15, 20-21.
At the punishment phase of Martinez’s trial, the state
presented evidence of extraneous offenses committed by Martinez,
including: the July 11, 1983 robbery/murder at the Don Ramon
Lounge; the July 12, 1983 robbery at Elaine’s Lounge; the July 15,
1983 murder of his own sister, Julia, and her boyfriend, Guillermo
Chavez; and the July 21, 1983 murder of prostitute Tracy Pelkey.
XXIV Tr. at 43-45, 113, 145-58; XXV Tr. at 291, 298-300, 330-38;
XXVI Tr. at 528-39, 553; XXVI Tr. 677-84, 692-97. The state also
presented evidence of Martinez’s numerous prior convictions,
including: burglary for which he received a two-year prison term
in 1964; armed robbery and assault for which he received a twenty-
year prison term in 1969; jail-breaking for which he received a
five-year prison term in 1969; and theft for which he received a
five-year prison term in 1969. SHTr. at 252. The state presented
other aspects of Martinez’s violent criminal past through several
of his family members.
Jerry DeAnda, Martinez’s older brother, testified that
Martinez (1) belonged to a gang known as the Texas Syndicate;
3
(2) planned to produce drugs for the gang; (3) stabbed a cell-mate
during a former prison term; (4) escaped from jail in 1969;
(5) stole DeAnda’s gun with the intent to kill someone;
(6) committed several violent robberies in the Fort Worth area; and
(7) robbed and murdered someone in California while stealing
chemicals for a crystal methamphetamine laboratory he intended to
create for the gang. His sister, Raquel Martinez, testified that
(1) the Government delayed Martinez’s 1982 release from a fourteen-
year prison term because he stabbed another inmate; (2) Martinez
wanted to produce and sell drugs for the Texas Syndicate; (3) he
twice threatened her with a gun; (4) he stole her car; (5) he
attempted to abduct her; and (6) he admitted to committing
seventeen robberies in the Fort Worth area.
The state also presented evidence, through a clinical
psychologist, that a hypothetical person who committed the crimes
allegedly perpetrated by Martinez would be likely to commit future
criminal acts of violence, and that a person found to have
deliberately committed these acts would warrant a finding of future
dangerousness. The state also presented evidence that although
Martinez had been found not guilty by reason of insanity and
committed to Rusk State Hospital in 1967, he was found sane on
October 21, 1968 and subsequently released. Several witnesses
described Martinez as easily provoked and hot-tempered.
4
Through cross-examination and the presentation of its own
witnesses, defense counsel4 elicited the following testimony.
Martinez’s older brother, DeAnda, testified that their mother
suffered from mental illness, for which she was hospitalized during
their childhood. Id. at 893. He also testified that Martinez was
committed to a state mental institution for a time. Id. at 894.
Kathryn Cox, a former prison minister with the Salvation Army,
testified that Martinez’s acts constituted a self-destructive cry
for help, and that she found him eager to learn, regretful for his
past acts, and amenable to rehabilitation. She also testified that
he was suicidal. Two Harris County Sheriff’s Deputies, one former
and one current, testified that they had interacted with Martinez
several dozen times without incident. Defense counsel also elic-
ited testimony that Martinez suffered from malnourishment while at
Rusk State Hospital, was brutalized by prison guards while in care
of the Texas Youth Commission, and was committed for a period of
time to Wichita Falls State Mental Hospital.
Cross examination elicited some adverse information from
Martinez’s family members, including that they were not aware that
Martinez had been diagnosed with any mental disorders during his
commissions to state mental institutions. Rather, they testified
that Martinez was very intelligent and had no mental health
problems. Martinez’s sister, Raquel Martinez, also testified that
4
Martinez was represented by Ray Montgomery in both the 1984 and 1989
trials, as well as J.C. Castillo in the 1989 trial.
5
Martinez, in fact, had committed himself to mental institutions for
the purpose of receiving free food and shelter.
At punishment, defense counsel also offered into evidence
records from Wichita Falls State Mental Hospital demonstrating
that: Martinez’s mother was treated at San Antonio State Hospital
for mental health issues; Martinez was a fearful and weak child who
suffered from some form of epilepsy that went medically untreated
because his father thought his “spells” were derived from
“spirits”; Martinez began drinking at thirteen years of age; and
that Martinez was hostile, violent, lost control and committed acts
that he later regretted. The Wichita Falls State Mental Hospital
records confirmed that Martinez’s admissions to the hospital were
voluntary, and indicated that he left the facility without
permission at least twice. Additionally, records from the Texas
Department of Corrections indicated that Martinez earned a GED
while incarcerated.
On the evidence presented, the jury found beyond a
reasonable doubt that: (1) Martinez’s conduct caused the death of
Chavis, and was deliberately committed with the reasonable
expectation that Chavis’s death would result; (2) there was a
probability that Martinez would commit future criminal acts of
violence that would constitute a threat to society; and (3)
Martinez’s conduct in killing Chavis was an unreasonable response
to any provocation by Chavis. The court then sentenced Martinez to
death.
6
Martinez unsuccessfully appealed to the Texas Court of
Criminal Appeals, Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App.
1993), reh’g denied, (October 20, 1993) and then sought certiorari
from the Supreme Court, which denied his petition. Martinez v.
Texas, 512 U.S. 1246 (1994). Martinez filed a state application
for a writ of habeas corpus on April 24, 1997, asserting
ineffective assistance of counsel. During the state habeas
proceedings, Martinez requested funds and an evidentiary hearing to
develop his claim. The state court denied both requests. Upon
review of Martinez’s habeas writ, the State’s answer, affidavits of
Martinez’s counsel, and the State’s proposed findings of fact and
conclusions of law,5 the state habeas court denied Martinez’s writ,
finding that he had not been deprived of effective assistance of
counsel. The Court of Criminal Appeals upheld the state court’s
habeas determination on August 18, 1999.
Martinez filed a timely § 2254 petition for a writ of
habeas corpus in federal district court. In 2001, Martinez filed
an amended writ incorporating the affidavits of Dr. Stephen K.
Martin, a neuropsychologist; Dr. Paula Lundberg-Love, a psycholo-
gist specializing in psychopharmacology; and Michael W. Jewell, a
fellow inmate. On February 6, 2003, the district court held an
evidentiary hearing on the following issues: (1) whether Martinez
was mentally ill at the time of his offense; (2) whether his trial
5
Martinez failed to file any proposed findings of facts and
conclusions of law on or before the July 8, 1999, deadline.
7
counsel was ineffective for failing to present an insanity defense;
and (3) whether there was cause for any procedural default of these
claims.6 At the hearing, Martinez submitted evidence that he has
a family history of mental illness, was exposed to neurotoxins in
utero and through adolescence when he picked cotton as a migrant
farm worker, was physically abused by an older brother, was
physically abused by prison guards while in care of the Texas Youth
Commission, suffered untreated epileptic seizures, and was
previously adjudged not guilty by reason of insanity for an
unrelated crime in 1967. With leave of court, the evidentiary
hearing was later supplemented with depositions. On November 25,
2003, the district court issued a memorandum and order and entered
a final judgment, denying Martinez’s petition for a writ of habeas
corpus, and denying, sua sponte, a COA.
On December 19, 2003, Martinez filed a Request for the
Issuance of a Certificate of Appealability with this court,
maintaining that he was deprived of his constitutional right to
effective assistance of counsel by his counsel’s failure to: (1)
6
In furtherance of Martinez’s claims, the district court granted
Martinez an evidentiary hearing in 2003 and allowed him to present evidence that
he had not presented to the state court. This raised exhaustion of state
remedies and futility issues, but the district court predicated its substantive
ruling on the fact that the state court’s refusal to grant a hearing and funds
to develop his claim during the state habeas action constituted cause for
Martinez’s procedural default. However, the district court found that no
prejudice resulted from the state court’s refusal of funds. Martinez v. Dretke,
Crim. No. H-99-3147, slip op. at 11-15 (Tex. D.C. November 25, 2003).
The State has not objected to the district court’s mode of procedure, i.e.,
its conduct of an independent evidentiary hearing, so we need not consider the
matter further. Suffice it to note that the court’s procedure remedied
Martinez’s complaint about the insufficiency of state processes to allow him to
develop and present additional mental health evidence.
8
conduct an adequate investigation into his mental health
background; (2) introduce evidence of neurological impairment and
a prior adjudication of not guilty by reason of insanity as a
mitigating factor and assert an insanity defense during the
guilt/innocence phase of his trial; and (3) introduce evidence of
his neurological impairment as a mitigating factor during the
punishment phase of his trial. On December 28, 2004, we invited
additional briefing on the latter two issues.
II. STANDARD FOR GRANTING A COA
Martinez filed his § 2254 petition for a writ of habeas
corpus after the effective date of the Antiterrorism & Effective
Death Penalty Act (“AEDPA”), April 24, 1996. Therefore, the
petition is subject to the procedures imposed by AEDPA and post-
AEDPA precedent. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct.
2059, 2068 (1997).
Under AEDPA, Martinez must obtain a COA before an appeal
can be taken to this court. 28 U.S.C. § 2253(c)(2). This court
may grant a COA only upon finding that Martinez has made a
substantial showing of denial of a constitutional right. Id.;
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603 (2000).
To satisfy this standard, Martinez must demonstrate that reasonable
jurists could find the district court's resolution of his
constitutional claims debatable or that reasonable jurists could
conclude that the issues presented are adequate to deserve
9
encouragement to proceed further. Miller-El v. Cockrell, 537 U.S.
322, 336, 123 S. Ct. 1029, 1039 (2003). “[A] COA ruling is not the
occasion for a ruling on the merit of petitioner's claim[.]” Id.
at 331, 123 S. Ct. at 1036. Instead, this court must engage in a
narrow threshold “overview of the claims in the habeas petition and
a general assessment of their merits.” Id. at 336, 123 S. Ct. at
1039. Because Martinez’s case involves the death penalty, we must
resolve any doubts as to whether a COA should issue in his favor.
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
Upon grant of a COA, to obtain habeas relief Martinez
must demonstrate that the state court proceeding “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
A state court’s decision falls within this rubric “if the state
court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a case
differently than the Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413,
120 S. Ct. 1495, 1523 (2000). A state court decision may also
qualify under § 2254(d)(1) “if the state court identifies the
correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner's
case.” Id. at 413, 120 S. Ct. 1523. Under § 2254(d)(1), we need
only determine whether the state court’s application of clearly
10
established federal law was objectively unreasonable. Neal v.
Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc), cert. denied,
537 U.S. 1104, 123 S. Ct. 963 (2003). “We have no authority to
grant habeas corpus relief simply because we conclude, in our
independent judgment, that a state supreme court’s application of
[federal law] is erroneous or incorrect.” Id., 286 F.3d at 236.
III. ANALYSIS
Martinez maintains that he was deprived of his
constitutional right to effective assistance of counsel by his
counsel’s failure to: (1) conduct an adequate investigation into
his mental health background; (2) introduce evidence of
neurological impairment and a prior adjudication of not guilty by
reason of insanity as a mitigating factor and assert an insanity
defense during the guilt/innocence phase of his trial; and
(3) introduce evidence of his neurological impairment as a
mitigating factor during the punishment phase of his trial.
To prevail on this claim, Martinez must demonstrate, as
to each issue for which he requests a COA, that: (1) his counsel’s
performance was deficient; and (2) his counsel’s deficient
performance prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 687 104 S. Ct. 2052, 2065 (1984). There is a strong
presumption in favor of competency. Id. at 689, 104 S. Ct. at
2065. Counsel’s performance was deficient only if it “fell below
an objective standard of reasonableness” as measured by “prevailing
11
professional norms.” Id. at 688, 104 S. Ct. at 2065. Review of
counsel’s performance “must be highly deferential” and take into
account “counsel’s perspective at the time.” Id. at 689, 104 S.
Ct. at 2065. We must make every effort to avoid “the distorting
effect of hindsight.” Id. Where counsel has engaged in an
adequate investigation, any strategic decision made as a result of
that investigation “fall within the wide range of objectively
reasonable professional assistance.” Id. “A conscious and in-
formed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is
so ill chosen that it permeates the entire trial with obvious
unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir.)
(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983)),
cert. denied, 537 U.S 1018, 123 S. Ct. 549 (2002).
Even if we find counsel’s performance deficient, Martinez
must demonstrate prejudice. Strickland, 466 U.S. at 692, 104 S.
Ct. at 2067. Martinez must demonstrate that “there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694, 104 S. Ct. at 2068. In capital cases,
the standard 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
12
warrant death.” Id. at 695, 104 S. Ct. at 2069. Under
Strickland’s conjunctive test, Martinez’s failure to demonstrate
either deficiency or prejudice must result in the failure of his
claim. Id. at 687, 104 S. Ct. at 2065.
1. Inadequate Investigation
Martinez’s request for a COA on this issue is denied.
Martinez contends that he was denied effective assistance of
counsel by virtue of his counsel’s failure to adequately
investigate his mental health background. Martinez argues that his
mental health history, his exposure to neurotoxins in utero and as
a migrant child farm worker, and his use of anti-psychotic
medications should have put counsel on notice that a more thorough
investigation into his background was required. The district court
dismissed Martinez’s claims as overstated given the evidence
presented at trial regarding the mental health background of
Martinez and his mother, and it denied a COA on this issue. We
affirm that denial, and also deny Martinez’s instant request for a
COA on this claim.
“[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary. . .” Id. at 691, 104 S. Ct. at 2066.
“A particular decision not to investigate must be directly assessed
for reasonableness in all circumstances, applying a heavy measure
of deference to counsel’s judgments.” Id. A brief overview of the
13
instant claim evinces that counsel conducted a reasonable
investigation into Martinez’s mental health history and made
reasonable decisions to forgo further investigation into certain
lines of inquiry based on their professional judgment.
In brief, Martinez’s 1989 trial counsel drew upon
information gained during the 1984 prosecution to investigate
further Martinez’s mental health background, criminal past, and
family history in preparation for the 1989 trial. In this effort,
counsel obtained additional mental health records, hired an
investigator, conducted additional investigatory interviews of
Martinez’s family members, and sought the assistance of a
psychiatrist who declined to help. 3 RR at 12 (1984); 37 RR at
1375-76, 1391, 1399;7 HR at 30.8 As of 1989, Martinez’s family
members, bittered by the fact that he had murdered his sister and
reeling from threats he had made against some of them, were
extremely reluctant to assist in his defense. Yet, counsel was
able to extract some additional information from them, including
that none appeared to have been migrant farm workers. Because
Martinez’s family members were unwilling or unable to help at the
time, the fact that counsel had little family history with which to
work was not due to ineffective representation but to the
predicament Martinez created for himself.
7
“RR” refers to the 1984 trial record.
8
“HR” refers to the federal habeas court hearing record.
14
Moreover, nothing in counsel’s personal and professional
experience, in their interactions with Martinez, or in Martinez’s
conditions of confinement, put counsel on notice that further
inquiry was warranted. See Strickland, 466 U.S. at 691, 104 S. Ct.
at 2066 (“The reasonableness of counsel’s actions may be determined
or substantially influenced by the defendant’s own statements or
actions.”). Both defense counsel had been migrant child farm
workers and had picked cotton, and both had extensive backgrounds
in handling mentally-ill people. Both had interacted with
Martinez, without incident or indication of psychosis, during a 13-
month period when Martinez was not taking anti-psychotic drugs.
Although aware that Martinez had been prescribed anti-psychotic
medications, counsel’s experience taught that anti-psychotic drugs
were often prescribed in prison to alleviate the anxieties of
incarceration rather than to treat a serious mental illness.
Counsel also knew that Martinez had been diagnosed with an anxiety
disorder. Thus, the decision of Martinez’s counsel to forgo
further inquiry into his mental health was not unreasonable.
Contrary to Martinez’s contentions, the 2003 post-
reconciliation testimony of his family members, the testimony of
experts not involved in the 1989 trial proceedings, and the
production of a prisoner-witness whom Martinez failed to identify
during the state trials in 1984 and 1989, see HR at 200-237; HR at
200; HR at 40, 47, 55, 88-90, 170-72, are irrelevant to counsel’s
perspective in 1989. Thus, this evidence is insufficient to
15
demonstrate that counsel failed to conduct an adequate
investigation into Martinez’s mental health background in
preparation for the 1989 trial.
Upon an overview of Martinez’s claim and a general
assessment of its merit, we conclude that Martinez has failed to
make a substantial showing that the level of investigation
conducted by his counsel deprived him of his constitutional right
to effective assistance of counsel. Circuit precedent fully
supports this conclusion.9 Reasonable jurists would not debate the
district court’s conclusion. Therefore, a COA will not issue as to
this claim.
2. Failure to Introduce Mitigating Evidence During the
Guilt/Innocence and Punishment Phases of Trial
Martinez also sought COA on two other claims: (1) that
his counsel failed to introduce evidence of Martinez’s neurological
impairment and prior adjudication of not guilty by reason of
insanity during the guilt/innocence phase of his trial to support
an insanity defense; and (2) that his counsel were deficient for
failing to introduce evidence of his mental problems and
neurological impairment as a mitigating factor during the
punishment phase. The district court denied both claims on the
9
See Clark v. Collins, 19 F.3d 959, 964-65 (5th Cir. 1994) (rejecting
petitioner’s claim of deficient performance where existing psychiatric
evaluations confirmed counsel’s own observations of the petitioner and counsel
had no basis in fact or reason to conclude that additional psychiatric
evaluations were merited); Riley v. Dretke, 362 F.3d 302 (5th Cir. 2004) (finding
counsel’s interactions with the petitioner, petitioner’s probation and juvenile
records, conversations with petitioner’s family members sufficient to support
counsel’s conclusion that petitioner was not suffering from mental illness).
16
merits and declined to issue a COA for either. To this extent, the
district court’s determinations were in error.
The relevancy threshold for mitigation evidence is
extremely low, and is satisfied by evidence that “‘tends logically
to prove or disprove some fact or circumstance which a fact-finder
could reasonably deem to have mitigating value.’” Tennard v.
Dretke, 124 S. Ct. 2562, 2570 (2004) (quoting McKoy v. North
Carolina, 494 U.S. 433, 440-441, 110 S. Ct. 1227, 1232 (1990)). In
capital cases, the relevancy standard translates into “whether the
evidence is of such a character that it might serve as a basis for
a sentence less than death.” Id. at 2571 (internal citation and
quotations omitted). Here, reasonable jurists could debate the
Strickland issues raised by counsel’s failure to present an
insanity defense at trial and to argue at sentencing that Martinez
suffered from insanity and/or neurological impairments that
affected his ability to conform his conduct to the law’s
requirements. Therefore, we granted COA as to each of these
issues. Nevertheless, having reviewed the merits briefs and the
record in full, we deny Martinez’s request for habeas relief,
finding the state habeas court’s determinations consistent with
federal law as established by the Supreme Court and distilled by
this Circuit.
Resolving these claims, the state habeas court made the
following findings: the jury had before it evidence regarding
Martinez’s mother’s mental health as well as his own; several
17
psychological evaluations determined that Martinez did not suffer
from any gross psychiatric disorders or otherwise demonstrate
psychotic symptoms; Martinez’s claims of neurological impairment
were legally meritless; and Martinez’s counsel investigated,
developed and presented mitigating evidence at trial. SHTr. at
255-58. Finally, the court found that even if Martinez’s counsel
was deficient, Martinez was not prejudiced given the overwhelming
evidence of his guilt for the crime of conviction, his prior
convictions, and his extraneous offenses. Id.
For reasons explained below, the state court’s deter-
mination that no constitutional error attended counsel’s decisions
were neither contrary to nor did they result from an unreasonable
application of federal law. Viewing counsel’s performance through
a “‘highly deferential’” lens and with a view to “‘the facts and
resources available to [counsel] at the time of trial,’” Williams
v. Cain, 125 F.3d 269, 276 (5th Cir. 1997) (quoting Motley v.
Collins, 18 F.3d 1223, 1226 (5th Cir. 1994)), it is apparent that
counsel’s strategic decisions were based on their professionally
informed and competent assessment of the facts of Martinez’s case
in 1989. As such, their decisions fell “within the wide range of
objectively reasonable professional assistance,” and, thus, are
incapable of forming the basis of an ineffective assistance of
counsel claim. Strickland, 466 U.S. at 689, 104 S. Ct. at 2066.
First, on direct appeal, the state habeas court found
that the presumption of insanity issue was not preserved for review
18
because, after counsel submitted a motion on the issue, the state
trial court never formally resolved the motion and Martinez’s
counsel never renewed it. Martinez v. State, 867 S.W.2d 30, 33
(Tex. Crim. App. 1993). The state habeas court further found that,
even if the issue was properly preserved, the subsequent jury
determination of sanity in 1968 and Martinez’s consequent release
were sufficient to overcome the presumption. Id. Because federal
courts are not entitled to review state court dispositions that
rest on adequate and independent state grounds, see Lambrix v.
Singletary, 520 U.S. 518, 522-23, 117 S. Ct. 1517, 1522 (1997)
(quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546,
2553 (1991)), we must be satisfied with the state habeas court’s
determinations.
Notwithstanding, counsel’s decision not to argue a
presumption of insanity during the guilt/innocence phase was an
exercise of professional judgment consistent with Texas law and
counsel’s prior experience in the 1984 trial. Although Martinez
argues that his one-and-a-half-year commitment to a state mental
institution, from 1967 through 1968, raised a presumption of
insanity assertable at his 1989 trial, under Texas law, “an
adjudication of incompetency is based on one’s capacity at the time
of trial.” Hall v. State, 766 S.W.2d 903, 906 (Tex. Crim. App.
1989) (holding that a “a five-year gap between [the defendant’s]
breakdown and the trial with no further hospitalization . . . [does
not] constitute evidence tending to show incompetency”). Here,
19
there was a twenty-one year gap between Martinez’s 1968 release
from the state mental institution and his 1989 trial. In addition,
Martinez’s voluntary 1969 guilty plea to robbery wherein a court
found him legally sane, eviscerated any presumption that may have
arisen from his 1967 commitment. Even if an assertable presumption
did exist in 1989, as the state court found, it would not have been
difficult for the state to rebut the presumption given that the
1967 verdict was vitiated in 1968 by a subsequent jury
determination of sane. Moreover, the trial transcript indicates
that counsel did raise the presumption in the 1989 trial, and that
it was adequately rebutted. Finally, defense attorney Montgomery
argued the 1967 acquittal by reason of insanity at the 1984 trial
and received an adverse jury verdict within fifteen minutes. Hard
experience deterred repetition of this course of action in the 1989
trial. HR at 43, 106-107.
Second, counsel had no obligation to assert an insanity
defense that they deemed so meritless as to constitute a fraud on
the court and otherwise adverse to Martinez’s case. See Williams,
125 F.3d at 278 (rejecting claim of ineffective assistance where
counsel declined to introduce mitigating evidence that “would have
opened the door to more damaging evidence under
cross-examination”). Moreover, counsel was not required to assert
an insanity defense where, after proper investigation, counsel
determined that a more viable, and less fraudulent, defense was
available. Cf. Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th
20
Cir. 1987). Contrary to Martinez’s contentions, circuit precedent
requiring counsel to raise an insanity defense where it is the only
viable defense is acutely distinguishable on the facts, and, as
such, inapposite here.10
In Martinez’s case, potential defense theories included
failure of “the system” to intervene during Martinez’s troubled
youth and insanity. Counsel determined the former most viable and
the latter potentially fraudulent. Counsel’s assessment is
supported by the record. Psychological evaluations conducted in
1979, 1986, and 1988 concluded that Martinez did not suffer from
any psychological disorders.11 Although Martinez proffered expert
testimony in 2003 that his exposure to pesticides in utero and
through adolescence could have caused a brain disorder that
rendered him unable to control his impulses, his own expert
witness, Dr. Love, admitted that such a diagnoses would be no more
than post-hoc conjecture otherwise contradicted by Martinez’s
mental health history as it stood in 1989. See Love Dep. at 148-
258 (admitting that psychiatric diagnoses are not constant, that
10
Martinez’s reliance on Profitt is misplaced because that case is
distinguishable from the instant matter. In contrast to the facts in Profitt,
counsel in this case, explored the possibility of an insanity defense and ruled
it out after taking both obvious and non-obvious investigatory measures; provided
reasonable tactical bases for not investigating the issue further and declining
to assert an insanity defense; and raised other defenses that were not only
plausible, but also supported by Martinez’s mental health and criminal record.
See Profitt, 831 F.2d at 1248-49.
11
These evaluation were not admitted at trial but were included in the
trial “statement of facts” and considered as part of the trial record by the
state habeas court.
21
she would only diagnose Martinez as suffering from “periodic” and
“episodic” schizophrenia, and that she could not determine, without
allowing for a significant margin of error, Martinez’s mental
condition during his 1989 trial). Additionally, as previously
discussed, counsel had no basis in personal experience that
suggested the viability of an insanity defense based on Martinez’s
exposure to neurotoxins in the course of migrant farm work.
Moreover, as admitted by another of Martinez’s expert witnesses,
Dr. Freedman, nothing in the mainstream media put counsel on notice
of such a connection. See Freedman Dep. at 76-77 (conceding that
literature existing in 1989 supporting the theory of pesticide-
induced psychosis may have been known to the medical community, but
not to the public at large).
One of Martinez’s counsel, Ray Montgomery, submitted an
affidavit averring that: he had represented or prosecuted hundreds
of defendants who were, or claimed to be, mentally ill; in his
interactions with Martinez, over the course of several years,
Martinez never acted in a manner demonstrative of insanity or
incompetence; Martinez’s prison record and conduct were consistent
with his conclusion and that of other attorneys representing
Martinez, and Martinez’s own family members shared this view. See
SHTr. at 257 (Respondent’s Original Answer, Exhibit A, Aff. of Ray
Montgomery).
Based on the facts of Martinez’s case, his counsel
determined that assertion of an insanity defense would constitute
22
a fraud on the court. Therefore, counsel decided to forgo an
insanity defense in the guilt/innocence phase, and instead advanced
as the primary defense theory the “failure of the system” to
intervene during Martinez’s troubled youth. This mode of defense
was supported by Martinez’s criminal history and the abuse that he
purportedly suffered at the hands of detention facility personnel.
Under the facts as they existed at the time, counsel’s decision was
reasonable.
Third, counsel’s decision not to introduce evidence of
neurological impairment (i.e., organic brain damage) as mitigating
evidence at the punishment phase constituted reasonable and
protected professional judgment. As we have held, evidence of
organic brain injury presents a “double-edged” sword, and deference
is accorded to counsel’s informed decision to avert harm that may
befall the defendant by not submitting evidence of this nature.
Kitchen v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999). “If such an
omission is based on well informed, strategic decisions, it is
‘well within the range of practical choices not to be second-
guessed.’” Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997)
(quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.
1992)).
Under Texas law, a jury in a capital case must determine
“whether there is a probability that the Defendant would commit
criminal acts of violence that would constitute a continuing threat
to society.” TEX. CODE OF CRIM. PROC. ART. 37.071 § 2(b)(1) (Vernon
23
2004). During the punishment phase, the state introduced expert
testimony that a hypothetical person who committed the crimes with
which Martinez was charged would warrant a future dangerous
finding. The introduction of evidence that Martinez suffered from
organic (i.e., permanent) brain damage, which is associated with
poor impulse control and a violent propensity, would have
substantiated the state’s evidence and increased the likelihood of
a future dangerousness finding. In lieu of introducing this
potentially damaging evidence, counsel presented other mitigating
evidence during the punishment phase. On cross and direct
examination, counsel elicited testimonial evidence of Martinez’s
difficult childhood, his mother’s hospitalization for mental
illness, his own commission to a mental health institution, and his
benighted childhood during which he suffered medical neglect,
malnourishment, and abuse at the hands of family members and state
prison guards. Thus, counsel’s decision not to introduce evidence
of organic brain damage, given the availability of other, less
damaging, mitigating evidence, fell well within the bounds of sound
trial strategy.
Even if counsel’s strategies fell below professional
norms, they cannot form the basis of a constitutional ineffective
assistance of counsel claim because there is no evidence that they
prejudiced Martinez or “permeated [his] entire trial with obvious
unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir.),
cert. denied, Jones v. United States, 537 U.S. 1018, 123 S. Ct. 549
24
(2002). In assessing prejudice, we “must consider the totality of
the evidence before the judge or jury.” Strickland, 466 U.S. at
695, 104 S. Ct. at 2069. Here, the nature of the evidence against
Martinez advises against a prejudice finding.
In addition to mitigating evidence presented by the
defense, the jury also had before it evidence of Martinez’s
methodical planning and execution of the crime of conviction. The
state propounded evidence that Martinez and his accomplices “cased”
Chavis’s bar in preparation for the robbery. On July 11 and
July 12, 1983, Martinez and one accomplice entered the bar, ordered
a beer, drank very little, and left. Martinez and two accomplices
returned on July 13, 1983, and shot and killed Chavis in the
process of robbing the bar. The jury also had before it evidence
of Martinez’s subsequent violent and murderous 1983 crime spree,
and his numerous prior convictions for burglary, robbery, jail-
breaking, and theft. The evidence depicted a man capable of
planning and executing criminal acts and victimizing anyone who
would get in his way, which was more than sufficient to belie any
“tragic impulse” defense that Martinez could have asserted.
In sum, even if counsel had asserted the presumption and
defense of insanity and presented evidence of neurological
impairment in mitigation during Martinez’s trial, it is highly
improbable that the outcome would have been different. Id. at
694-95, 104 S. Ct. at 2068-69.
25
CONCLUSION
As to his first COA claim, failure to investigate,
Martinez failed to demonstrate that jurists of reason would debate
the district court’s resolution of the issue. Therefore, we deny
a COA on this issue. As to the remaining COA claims, failure to
present an insanity defense and evidence of neurological impairment
during the guilt/innocence and punishment phases of Martinez’s
trial, we find that jurists of reason could debate the district
court’s resolution of these claims, and, thus, issue a COA as to
each claim. However, we conclude that Martinez has failed to show
that the state habeas court’s resolution of these claims resulted
in decisions that were contrary to, or involved an unreasonable
application of, clearly established federal law. Therefore, we
deny Martinez’s request for habeas relief.
COA GRANTED IN PART, DENIED IN PART. Habeas Relief
DENIED. Judgment of the district court is AFFIRMED.
26
Martinez v. Dretke
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-03-23
Citations: 404 F.3d 878
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