United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 8, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-70011
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VIRGIL EURISTI MARTINEZ
Petitioner-Appellee,
versus
NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 3:02-CV-00718
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Respondent-Appellant Nathaniel Quarterman (“Quarterman”)
appeals the opinion and order of the district court granting
Petitioner-Appellee Virgil Euristi Martinez’s (“Martinez”) petition
for a writ of habeas corpus based on a claim of ineffective
assistance of counsel. Martinez alleged, and the district court
agreed, that his trial attorneys, Jerri Yenne and Stan McGee,
provided ineffective assistance of counsel by inadequately
investigating temporal lobe epilepsy (“TLE”) as mitigating evidence
at the punishment phase of his trial. However, we conclude that
reasonable professional judgments supported counsel’s limited
investigation into TLE and that Martinez failed to establish
prejudice as a result of counsel’s limited investigation. The Texas
Court of Criminal Appeals’s denial of Martinez’s application for
habeas relief was not “objectively unreasonable.” We therefore
REVERSE.
I. FACTUAL AND PROCEDURAL HISTORY
This is the second time that this court has considered
Martinez’s petition for habeas corpus.1 Martinez alleges that his
counsel provided ineffective assistance at the punishment phase of
his trial because they failed to fully investigate TLE as mitigating
evidence. Martinez contends that the TLE evidence “would have
rebutted the State’s case of future dangerousness, provided the jury
with a vehicle to spare his life, both in terms of future
dangerousness and mitigation, and provided an explanation for his
behavior and violent crime.” 111 F.App’x. at 225. In support of
his claim, Martinez submitted affidavits from Drs. Theodore Pearlman
and Anand Mehendale, in which the doctors opined that TLE played a
role in Martinez committing the murders. Although the state habeas
1
A jury convicted Martinez of murdering his ex-girlfriend
Veronica Fuentes; Veronica’s two children, five-year-old Joshua and
three-year-old Cassandra; and a bystander John Gomez. The jury
subsequently sentenced Martinez to death. Martinez properly
pursued and exhausted his state remedies. The Texas Court of
Criminal Appeals ultimately denied Martinez’s application for
habeas relief. Our previous opinion contains a fuller account of
the factual and procedural history. See Martinez v. Dretke, 111
F.App’x. 224 (5th Cir. 2004) (Martinez I).
2
record contained affidavits from Martinez’s trial counsel, those
affidavits did not clearly demonstrate the extent of counsel’s
investigation into and knowledge of TLE.
Given the indeterminancy of the record, we vacated the district
court’s denial of habeas and remanded for further development of the
record. We instructed the district court to conduct an evidentiary
hearing to determine “whether counsel’s investigation of Martinez’s
temporal lobe epilepsy was unreasonably deficient and, if so,
whether counsel’s failure to investigate this condition and produce
evidence relating to it amounted to ineffective assistance of
counsel.” Martinez I, 111 F.App’x. at 230. Specifically, we asked
the district court to clarify: (1) how much of the information in
Dr. Pearlman’s February 27, 1997, report did Yenne learn in her
investigation, and whether the report should have triggered further
investigation; (2) whether Dr. Mehendale told Yenne that Martinez
suffered from TLE or about that condition’s effect on aggressive
behavior; and (3) whether Yenne read Martinez’s school records and
considered how TLE might relate to the behavioral problems noted
therein. Id. at 227-28.
A magistrate judge held a two-day hearing on June 6-7, 2005,
and the parties submitted additional deposition evidence to the
court. The magistrate judge determined that Yenne read Dr.
Pearlman’s report and knew of his diagnosis of TLE. The report and
recommendation concluded that Yenne did not understand the
relationship between TLE and post-seizure aggression or Martinez’s
3
future dangerousness because she failed to ask Dr. Mehendale his
medical opinion on these subjects. The magistrate judge also found
that, though Yenne read the school records, she never asked either
Dr. Pearlman or Dr. Mehendale about how TLE might explain Martinez’s
behavioral problems in school. According to the magistrate judge,
counsel’s failure to further investigate TLE constituted ineffective
assistance of counsel. The report and recommendation concluded that
counsel’s failure to fully investigate TLE prejudiced Martinez
because, with further investigation, counsel could have rebutted
much of the State’s aggravating evidence and could have given the
jury an explanation for Martinez’s crime. Accordingly, on November
9, 2005, the magistrate judge issued a report and recommendation
advising that the district court grant habeas relief.
On February 7, 2006, the district court issued an opinion and
order accepting the magistrate judge’s report and recommendation and
granted Martinez’s petition for habeas relief. Quarterman now
appeals the district court’s opinion and order.
II. STANDARD OF REVIEW
In a habeas appeal, this court reviews the district court’s
findings of fact for clear error and its conclusions of law de novo,
applying the same standards to the state court’s decision as did the
district court. Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004).
Martinez filed his habeas petition after the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
4
U.S.C. § 2254; therefore, AEDPA governs this appeal. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, this court may not
grant habeas relief on a claim that a state court has adjudicated
on the merits “unless the adjudication of the claim . . . 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.” Riddle v. Cockrell, 288
F.3d 713, 716 (5th Cir. 2002) (quoting 28 U.S.C. § 2254(d)(1))
(internal quotations omitted). A state court’s decision is
“contrary to” clearly established federal law if “it relies on legal
rules that directly conflict with prior holdings of the Supreme
Court or if it reaches a different conclusion than the Supreme Court
on materially indistinguishable facts.” Busby, 359 F.3d at 713
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A
decision constitutes an “unreasonable application” of clearly
established federal law if it is “objectively unreasonable.”
Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir. 2003). The
decision of the state court might be incorrect, but still fall below
the “objectively unreasonable” threshold. See Neal v. Puckett, 286
F.3d 230, 236 (5th Cir. 2002). This court must presume that a state
court’s findings of fact are correct, and the petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1).
Ten years after AEDPA’s enactment, its standards are by now
5
familiar, but Quarterman vigorously objects that neither the
magistrate judge nor the district court applied AEDPA deference.
We need not decide this particular issue because we are persuaded
that, irrespective of AEDPA deference, the district court erred in
finding ineffective assistance under Strickland v. Washington, 466
U.S. 668 (1984).
III. DISCUSSION
In Strickland, the Supreme Court articulated the standard for
establishing an ineffective assistance of counsel claim. Martinez
must demonstrate both that: (1) his counsel’s performance was
deficient; and (2) counsel’s deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687. Counsel’s performance is
deficient if it “fell below an objective standard of
reasonableness.” Id. at 688. The Supreme Court has instructed that
judicial scrutiny of counsel’s performance must be “highly
deferential.” Id. at 689. A reviewing court should make every
effort “to eliminate the distorting effects of hindsight” and to
“evaluate the conduct from counsel’s perspective at the time.” Id.
Further, “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”
Id. at 690-91 (emphasis added).
6
In addition to deficient performance, Martinez must demonstrate
prejudice. Deficient performance results in prejudice when “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.” Strickland, 466 U.S. at 694. More
precisely, in a capital case such as this one, 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 warrant death.”
Id. at 695.
1. Deficient Performance and Inadequate Investigation
The gravamen of Martinez’s ineffective assistance of counsel
claim is that his counsel prejudiced his defense by failing to
conduct a reasonably adequate investigation of TLE as mitigating
evidence. The magistrate judge found that counsel read Dr.
Pearlman’s report and knew of Dr. Pearlman’s opinion that Martinez
committed murder during the course of a TLE-induced seizure.
Nevertheless, both Martinez and the district court fault counsel for
not further investigating TLE and discovering the links between TLE
and post-seizure aggression, TLE and Martinez’s poor disciplinary
record at school, and how TLE could have explained Martinez’s
bizarre and, at times, violent behavior at the Kerrville State
Hospital. However, Strickland does not require counsel to fully
investigate all mitigating evidence. The Strickland Court
7
recognized there would be times when “reasonable professional
judgments support[ed] limitations on investigation.” 466 U.S. at
690-91; see also Wiggins v. Smith, 539 U.S. 510, 527 (2003) (“In
assessing the reasonableness of an attorney’s investigation,
however, a court must consider not only the quantum of evidence
already known to counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further.”). Certainly
counsel did not fully explore TLE, but we must decide whether
counsel’s decision to forego further investigation was based on
reasonable professional judgments.
Without a doubt, Dr. Pearlman’s report brimmed with information
which could have been useful to Martinez’s mitigation case, but it
also teemed with damaging information which convinced counsel not
to pursue TLE any further.2 Pearlman’s report contained information
which counsel rightly did not want the jury to hear. First and
foremost, counsel thought that it would be more harmful than
beneficial for the jury to learn that Martinez had a mental disorder
which, in Dr. Pearlman’s words, caused “savage and uncontrolled”
aggressiveness. Yenne Dep. Vol. 8 at 160-61. Counsel believed that
this might cause the jury to believe that Martinez was a “complete
danger to society” and that he was “incapable of controlling any of
2
In the words of Stan McGee, “my sense of our investigation
about mitigation and future dangerousness was everything that we
came up with or everything that Ms. Yenne came up with seemed to me
to be -- it hurt more than it helped.” McGee Dep. at 47.
8
his behavior.” Id. at 161.3 Counsel thought that evidence of
Martinez’s aggressiveness, even if it were caused by a physical
condition, would not sit well with a Brazoria County jury. Id. at
161-62. The evidence for Martinez’s TLE embodies the type of
“double-edged” evidence which this circuit has repeatedly stated
that counsel may elect not to present to the jury. Martinez v.
Dretke, 404 F.3d 878, 889 (5th Cir. 2005) (Martinez II); Johnson,
306 F.3d at 253.
The TLE evidence failed to impress counsel not only because it
suggested that Martinez was prone to aggressiveness, but also
because counsel feared that the jury simply would not believe it.
Counsel suspected that the jury would not accept that epilepsy
caused the murders because epilepsy is a fairly common disorder and,
in most people’s experience, does not result in such catastrophic
violence. Yenne Dep. Vol 6. at 33.4 Further, Yenne believed that
3
Admittedly, Dr. Pearlman’s report states that with treatment
“there is no likelihood that [Martinez] will commit future acts of
dangerousness to society,” but it is counsel’s decision to decide
whether, on balance, the TLE evidence was more helpful than
harmful. See Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir.
2002) (noting decision not to present double-edged testimony even
less susceptible to judicial second-guessing). Furthermore, Dr.
Pearlman’s opinion as to future dangerousness was based, in part,
on his belief that Martinez lacked either a criminal history or a
prior history of catastrophic violence. Yenne, however, knew that
Dr. Pearlman was unaware of some of Martinez’s prior bad acts, such
as his history of stalking women, and she wanted to avoid exposing
Dr. Pearlman to this potential line of cross-examination. Yenne
Dep. Vol 8. at 162, 142 (mentioning history of stalking women).
4
Martinez and the district court accuse counsel of not
understanding the distinction between TLE and other types of
9
Martinez’s lack of violent incidents in jail was inconsistent with
someone who could not control his behavior. Id. Vol. 6 at 38.
Counsel were also skeptical of Dr. Pearlman’s opinion that Martinez
committed the murders while having a seizure.5 McGee questioned how
a seizure could last long enough to encompass four murders in which
the victims were shot multiple times, requiring Martinez to reload.
McGee Dep. at 64-65. The law permits counsel to question Dr.
Pearlman’s conclusions based on their review of the evidence. See
Riley v. Dretke, 362 F.3d 302, 305-06 (5th Cir. 2004) (allowing
counsel not to put on evidence of mental retardation where counsel’s
subjective belief that his client was not retarded based on
counsel’s observations of the client, information from the family,
and school records).
In addition to suggesting that Martinez was prone to
aggressiveness, Dr. Pearlman’s report was based, in part, on school
records which showed that Martinez engaged in antisocial behavior
from a young age. Counsel feared that letting Dr. Pearlman testify
about TLE would open the door to Martinez’s troubling school
records. A fairly representative sample of those records noted that
epilepsy or the relationship between TLE and violence. These
objections are overstated because, as will be discussed in the
section on prejudice, scientists currently do not have a complete
understanding of how TLE relates to violence, especially the
catastrophic violence of this case.
5
Counsel’s skepticism about Dr. Pearlman’s explanation for
the murders was reasonable, for Dr. Mehendale also disagrees with
it.
10
Martinez (1) exhibited “explosive behavior,” (2) “thinks about and
plans what he can do to get back at those who have bothered him,”
and (3) once brought live .22 caliber cartridges to class. Res. Ex.
Vol. 1 Tab E at 666, 676, & 625. Dr. Pearlman’s report gave no
indication that TLE caused or contributed to these behavioral
problems. Even if Dr. Pearlman’s report had suggested that TLE was
the cause, such evidence would have been double-edged.
Finally, Dr. Pearlman’s report contained information which
counsel believed undermined their overall trial strategy. The
report referenced a quotation from Martinez’s mother in which she
stated that Martinez was jealous in his love for Veronica Fuentes.
Counsel concluded, not unreasonably, that this provided the State
with a motive for the murders where before it did not have one.
Yenne Dep. Vol. 8 at 158. Counsel believed that evidence of
jealousy or stalking would have cinched the death penalty for
Martinez. Id. at 177. The report also mentioned Martinez’s
confession to Pearlman that he had killed John Gomez.6 Counsel
believed that conceding Martinez had killed Gomez would have
conflicted with their strategy of arguing mistaken identity at the
guilt/innocence phase of the trial. While there is certainly no
formal rule against switching theories between the punishment and
guilt/innocence phases of the trial, in this case, counsel believed
6
Counsel also worried that it would come out that Dr.
Pearlman did not believe Martinez’s account of the murders. Yenne
Dep. Vol. 8 at 153.
11
that switching theories would make them lose credibility with the
jury and appear hypocritical. Yenne Dep. Vol. 8 at 151. Indeed,
Stan McGee testified that, in his experience, juries did not react
well to a switch in theories between the different phases of the
trial. Counsel chose to argue residual doubt rather than presenting
inconsistent theories to the jury. See e.g., Moore v. Johnson, 194
F.3d 586, 618 (5th Cir. 1999) (noting that this circuit has held
that arguing residual doubt may be a reasonable, even highly
beneficial, strategy in a capital case).
After reading Dr. Pearlman’s report, counsel knew that Dr.
Pearlman believed that Martinez suffered from a mental disorder
which made him prone to aggressive behavior and that Martinez
committed the murders during a seizure.7 Therefore, this case is
unlike Lockett v. Anderson, in which we found that counsel provided
ineffective assistance where counsel failed to discover evidence of
brain abnormalities because counsel did not follow up on evidence
which suggested psychological problems. 230 F.3d 695 (5th Cir.
2000). Given all of the damaging information contained in Dr.
Pearlman’s report, counsel made a reasonable professional judgment
to limit their investigation into TLE as mitigating evidence.
7
The district court found that counsel “simply did not know
the link between TLE and violence.” R. Excerpts Tab E at 5. This
finding of fact is clearly erroneous because it is not supported by
the record. While it is true that counsel did not know the
relationship between TLE and post-seizure aggression, after reading
Dr. Pearlman’s report, counsel knew that Dr. Pearlman believed
Martinez committed murder while having a seizure and that TLE
caused aggressive behavior.
12
Despite counsel’s reasonable reservations about presenting TLE
to the jury, counsel did make some attempts to follow up on the TLE
evidence discovered in Dr. Pearlman’s report. Jerri Yenne met with
Dr. Mehendale and asked the doctor what he thought of Dr. Pearlman’s
opinion that Martinez committed the murders during an epileptic
seizure. Dr. Mehendale responded that he believed it was unlikely
that Martinez committed the murders while Martinez was having a
seizure. Faced with conflicting expert testimony about the role
that TLE played in the commission of the crimes, it was reasonable
for counsel to conclude that TLE was not worth pursuing. Counsel
believed that it made no sense to put on experts with different
opinions. Yenne Dep. Vol. 8 at 160.
Nevertheless, the district court and Martinez both fault
counsel for not asking Dr. Mehendale about post-seizure aggression
or how TLE might explain Martinez’s poor behavioral record at school
and at the Kerrville state hospital. To fault counsel for not
asking these particular questions is to engage in the kind of
hindsight second-guessing that Strickland warned against. 466 U.S.
at 689. Perhaps different counsel might have asked those questions,
but this does not mean that Martinez’s counsel’s actions “fell below
an objective standard of reasonableness” because they failed to do
so. Id. at 688. Yenne pointedly asked Dr. Mehendale to evaluate
Dr. Pearlman’s opinion that Martinez committed the murders during
a seizure and Dr. Mehendale rejected that position. In a forty-five
minute conversation with Yenne, Dr. Mehendale never suggested that,
13
while it was unlikely Martinez committed the murders during a
seizure, post-seizure aggression could have accounted for the
murders. Mehendale Dep. at 59. Yenne is a lawyer, not a medical
doctor. Yenne and McGee’s personal experiences with and knowledge
of epilepsy did not put them on notice of post-seizure aggression.
McGee Dep. at 64-65; Yenne Dep. Vol. 6 at 52; see also Martinez II,
404 F.3d at 886 (taking into account counsel’s personal and
professional experience in evaluating whether counsel should have
been put on notice to investigate further). Further, and perhaps
more importantly, there was simply nothing in Dr. Pearlman’s report
which would have alerted counsel to the possibility of post-seizure
aggression or to a link between Martinez’s behavioral problems in
school and TLE.8
Instead of pursuing TLE, counsel made the strategic choice to
argue residual doubt at the punishment phase. Counsel believed that
they had a strong chance of prevailing on a direct appeal with
respect to some exclusion of evidence issues. Yenne Dep. Vol. 8 at
168. Counsel also supposed that they might prevail on direct appeal
because of insufficient evidence to conclude that Martinez murdered
the children. Id. Vol. 6 at 41. Counsel concluded that having Dr.
Pearlman testify would be counter-productive to this potential
8
The relationship between TLE and Martinez’s behavioral
problems in school is far from self-evident. Dr. Mehendale
believes that TLE contributed to Martinez’s antisocial behavior in
an “obtuse way,” but Dr. Pearlman does not agree that Martinez’s
childhood behavior was caused by or a sign of TLE. Mehendale Dep.
at 29; Pearlman Dep. at 100-01.
14
appeal because he would have to admit that Martinez confessed to
killing Gomez and, more importantly, the TLE testimony would have
suggested that TLE-induced aggression also prompted Martinez to kill
the children. The district court attempted to discount this
strategic choice when it notes that Martinez “was convicted with the
support of significant eyewitness testimony concerning the identity
of the murderer.” R. Excerpts Tab E at 6. While this may have been
true with respect to Veronica Fuentes and John Gomez, this was not
true for the children, who were killed in a trailer away from the
eyes of witnesses. Residual doubt, especially as it concerns the
children, was therefore a strategic choice entitled to deference.
See Moore, 194 F.3d at 618.
After the evidentiary hearing, there is no doubt that counsel
both knew of Dr. Pearlman’s opinion that TLE played a role in the
commission of the murders and failed to fully investigate TLE.
However, Supreme Court precedent does not require a full
investigation into all mitigating evidence. Burger v. Kemp, 483
U.S. 776, 794 (1986). After reading Dr. Pearlman’s report and
discussing it with each other, counsel had sufficient information
to determine that TLE was not worth pursuing. Counsel’s decision is
entitled to deference and was not deficient.
2. Prejudice
Martinez cannot prove that his counsel’s decision not to fully
investigate TLE resulted in prejudice. In determining prejudice,
we must decide “whether there is a reasonable probability that,
15
absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. Our duty requires us to
“compare the evidence actually presented at sentencing with all the
mitigating evidence contained in the postconviction [sic] record.”
Neal, 286 F.3d at 241; see also Williams, 529 U.S. at 397-98
(reviewing court must re-weigh the totality of the mitigating
evidence against the aggravating evidence). The district court
described the mitigating evidence in this case as “potentially of
significant help” to Martinez. R. Excerpts Tab E at 6. We disagree
with this conclusion. The magistrate judge’s report and the
district court’s opinion focus too narrowly on the beneficial
aspects of the TLE evidence, while overlooking its many drawbacks.
Looking at all the mitigating evidence contained in the post-
conviction record, the TLE evidence would not have been a
significant help to Martinez. As a whole, the evidence was not so
compelling that there was a reasonable probability that the
sentencer would have determined that death was an inappropriate
sentence.
First, as has been previously discussed, rather than cutting
solely in favor of Martinez, the TLE evidence was double-edged. As
the Supreme Court has noted, “[m]itigation, after all, may be in the
eye of the beholder.” Burger, 483 U.S. at 794 (citations omitted).
The jury could have felt that TLE made Martinez a future danger
because it inclined him toward uncontrolled aggression, or the jury
16
could have accepted TLE as evidence that Martinez acted with
diminished capacity.
The TLE evidence also suffered from the fact that Martinez’s
experts disagreed over significant aspects of the TLE evidence.
Drs. Pearlman and Mehendale broadly agree that TLE-fueled aggression
played a role in Martinez’s commission of the murders, but the devil
is in the details. First, Dr. Pearlman believes that Martinez
committed the murders while having a seizure, but Dr. Mehendale
believes that scenario is unlikely. Instead, Dr. Mehendale opines
that Martinez murdered while experiencing post-seizure aggression.
Second, Dr. Pearlman does not believe that TLE contributed to
Martinez’s antisocial behavior in school, whereas Dr. Mehendale
contends that TLE was obtusely related to those behaviors. Finally,
Dr. Pearlman’s report states that with treatment, “there is no
likelihood that [Martinez] will commit future acts of dangerousness
to society.” Dr. Mehendale’s affidavit is less definitive, stating
that Martinez’s future dangerousness could be “somewhat diminished”
with treatment. Further, at his deposition, Dr. Mehendale conceded
that there was a possibility that Martinez’s TLE disorder could not
be controlled--there were no guarantees. Mehendale Dep. at 56.
Faced with significant disagreement between Martinez’s experts, a
jury might well have been unimpressed with TLE as mitigating
evidence.
Of course, counsel could have elected to present only one
expert to the jury, but a jury would have had sufficient reason to
17
find each expert’s testimony less than compelling. We have already
noted the potential pitfalls of putting Dr. Pearlman on the stand
in the section addressing whether counsel’s performance was
deficient. Putting Dr. Mehendale on the stand would have been even
less beneficial to Martinez. As we have already seen, though Dr.
Mehendale opines that Martinez’s capacity for future dangerousness
could be reduced with treatment, he conceded that there was a
possibility that Martinez’s TLE could not be controlled with
treatment. Unfortunately for Martinez, that was not the last of Dr.
Mehendale’s damaging admissions. Although there is a link between
TLE and violence, Dr. Mehendale, on a couple of occasions, stated
that there is no data quantifying the degree of violence associated
with TLE. Mehendale Dep. at 20-21 & 53. In fact, Dr. Mehendale
reports that in a study of 5400 epileptics “none of them committed
murder.” Id. at 77. He stated that although epileptics have “bad
brains” their actions very rarely result “in a horrid tragedy like
this.” Id. Dr. Mehendale concluded by saying that the reason most
epileptics stop short of committing murder is because “epileptic
brains have [a] conscience, and [Martinez] didn’t.” Id. at 78. Dr.
Mehendale, Martinez’s own expert, would have undermined any argument
by Martinez that TLE reduced his moral culpability for the murders.
Surely, this is not compelling mitigation testimony which undermines
the outcome of the state trial.
After considering all of the mitigating evidence, we hold that
the additional mitigating evidence was not so compelling, especially
18
in light of the horrific facts of the crime, that the sentencer
would have found a death sentence unwarranted. At the very least,
the Texas Court of Criminal Appeals’s decision finding no
ineffective assistance of counsel was not “objectively
unreasonable.”
IV. CONCLUSION
For the reasons stated above, we REVERSE the decision of the
district court.
REVERSED.
19
Martinez v. Quarterman
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-03-08
Citations: 481 F.3d 249
Copy Citations