UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-10465
__________________
JUAN SORIA,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________
March 16, 2000
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Juan Soria (Soria), convicted of capital murder in
Texas and sentenced to death, requests from this Court a
Certificate of Appealability (COA) pursuant to 28 U.S.C. §
2253(c)(2). Soria raises numerous arguments on appeal, including
denial of equal protection, denial of an impartial jury, and
ineffective assistance of counsel. Finding that Soria has not made
a substantial showing of the denial of a constitutional right, we
deny the COA.
I. BACKGROUND
By way of indictment, a Tarrant County grand jury charged
Soria with the capital offense of murdering Allen Bolden, while in
the course of committing and attempting to commit the offenses of
robbery and kidnaping, and the offense of murdering Allen Bolden.
A jury found Soria guilty of capital murder. After a separate
punishment hearing, the jury answered affirmatively the two special
issues submitted pursuant to Article 37.071 of the Texas Code of
Criminal Procedure.1 As a result of the jury’s findings, the trial
court assessed punishment at death by lethal injection.
On direct appeal, the Texas Court of Criminal Appeals
initially affirmed the conviction but reformed the sentence to life
imprisonment, holding that the evidence was insufficient to support
the jury’s finding that Soria would be a continuing threat to
society. Soria v. State, No. 69,679 slip op. (Tex.Crim.App. June
8, 1994) (per curiam) (unpublished). In an opinion on the State’s
motion for rehearing, the Court affirmed Soria’s conviction and
reinstated the death sentence. Soria v. State, 933 S.W.2d 46
(Tex.Crim.App. 1996), cert. denied, 117 S.Ct. 2414 (1997).
Soria, through counsel, filed a state application for a writ
of habeas corpus. After a “hearing” by affidavit, the trial court
entered findings of fact and conclusions of law recommending that
1
The trial court submitted the following questions to the
jury in the punishment charge:
Do you find from the evidence beyond a
reasonable doubt that the conduct of the
defendant that caused the death of the
deceased was committed deliberately and with
the reasonable expectation that the death of
the deceased or another would result?
Do you find from the evidence beyond a
reasonable doubt that there is a probability
that the defendant would commit criminal acts
of violence that would constitute a continuing
threat to society?
2
habeas relief be denied. The Court of Criminal Appeals denied
relief, expressly adopted the trial court’s findings, excepting,
without explanation, conclusions of law two, twelve, and thirteen.
Soria, through counsel, filed the instant federal petition for
a writ of habeas corpus. The respondent answered the petition and
moved for summary judgment. After hearing oral argument on the
respondent’s motion, the district court denied relief in a written
order. Soria moved for a COA, which was denied by the district
court. Soria now requests a COA from this Court.
II. STANDARD OF REVIEW
Soria filed his section 2254 application for habeas relief on
January 15, 1999, which was after the April 24, 1996 effective date
of the Antiterrorism and Effective Death Penalty Act (AEDPA). His
application therefore is subject to the AEDPA. Lindh v. Murphy,
521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997). Under the AEDPA,
a petitioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA
will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, a petitioner “must demonstrate that the
issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions
are adequate to deserve encouragement to proceed further.”
Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394
n.4 (1983) (citation and internal quotation marks omitted). Any
doubt regarding whether to grant a COA is resolved in favor of the
petitioner, and the severity of the penalty may be considered in
3
making this determination. Fuller v. Johnson, 114 F.3d 491, 495
(5th Cir. 1997).
III. ANALYSIS
Soria asserts numerous grounds of error in his application for
COA. Each will be addressed in turn.
A. EQUAL PROTECTION CLAIM
Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712
(1986), Soria asserts that the state trial court’s refusal to
require the prosecutor to provide racially neutral explanations for
peremptorily challenging two Hispanic venire members resulted in a
violation of the Equal Protection Clause of the Fourteenth
Amendment. To evaluate a Batson claim, we look to the following
framework: (1) the petitioner must make a prima facie showing that
the prosecutor exercised his peremptory strikes on the basis of
race; (2) the burden of production then shifts to the prosecutor
to articulate a race-neutral reason for challenging the venire
member; and (3) finally, the trial court must decide whether the
petitioner has sustained his burden of proving purposeful
discrimination. Thompson v. Cain, 161 F.3d 802, 810-11 (5th Cir.
1998).
To establish a prima facie case, Soria was required to
demonstrate that the prosecutor exercised peremptory challenges
against minority venire members--in this case Hispanics2--and that
2
In Batson, the Supreme Court required that the party
objecting to the challenges be of the same cognizable race as the
excluded venire members. 476 U.S. at 96, 106 S.Ct. at 1723. The
Supreme Court later abandoned this requirement. Powers v. Ohio,
499 U.S. 400, 111 S.Ct. 1364, 1366 (1991).
4
the relevant circumstances raised an inference of purposeful
discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. An
inference may be drawn from such circumstances as a “pattern” of
strikes against minority venire members and the remarks made by a
prosecutor during voir dire. Id. at 96-97, 106 S.Ct. at 1723.
In the instant case, the trial court’s statement that it did
not “see a pattern or a systematic exclusion” and its refusal to
require the prosecutor to articulate his reasons for the strikes
should be treated as a finding that Soria failed to make a prima
facie case of discrimination under Batson.3
On direct appeal, the Texas Court of Criminal Appeals provided
the following factual analysis upholding the trial court’s finding
that no prima facie case was made:
Eighty-four (84) veniremembers were
examined by the parties during the selection
process. Of these, 25 were excluded for cause
on motion of one or the other party, and 13
were excused by the trial judge, either on
agreement of the parties, due to a previously
unclaimed exemption, or for reasons of
hardship. Two of these 38 prospective jurors
were hispanic people, but there is no
suggestion that either was excluded in
violation of Batson . . . .
Of the 46 remaining veniremen, three were
hispanic people. Two of these were struck by
the State. The other was not challenged by
either party, and so served on the jury.
Given the proportion of hispanic people on the
venire and comparing it with the proportion of
hispanic people struck by the prosecutor, the
3
See, e.g., United States v. Branch, 989 F.2d 752, 755 (5th
Cir. 1993) (explaining court’s statement that “I don’t think you
have the absolute right to have every black on the panel sit on the
jury” would be treated as a finding that appellants failed to make
a prima facie case of discrimination).
5
following observations seem pertinent to the
issue of deliberate racial discrimination.
The State used 16 peremptory challenges
during the selection process. Forty-six (46)
people were potential targets of these
strikes. Three were hispanic. The
prosecuting attorney actually struck two
hispanic people and 14 nonhispanic people.
This means that he used 12.50 % of his
peremptory strikes against members of an
identifiable ethnic group comprising only 6.52
% of the eligible venire. In other words, he
struck hispanic people at almost twice the
rate such people would have been eliminated by
random exclusion.
Nevertheless, had the prosecutor struck
one less hispanic person, the rate of
exclusion (6.25 %) would have been nearly the
same as if random. Thus, but for a single
peremptory strike out of the 16 actually
exercised by the State, no inference of
intentional discrimination would be
statistically supportable.
* * *
We have not been asked to consider
anything but the foregoing statistics. It
should be noted, however, that the voir dire
examination of the two hispanic people who
were struck by the State does not appear to
differ significantly as regards any
implication of racial bias from that of the
hispanic person who actually served as a
juror. In this regard, [Soria] has not
suggested any such basis nor referred us to
any portion of the record which he alleges to
disclose racial discrimination by the
prosecuting attorney.
* * *
A deviation from the norm of but a single
strike simply does not so clearly raise an
inference of racial discrimination that a
factfinding to the contrary must be disturbed
on appeal. Although, in this case, one
peremptory challenge amounts to twice the
number expected from random selection, it also
represents but a single increment greater than
6
random selection would produce under ideal
circumstances. Thus, . . . this case does not
clearly raise an issue of purposeful
discrimination, since little can legitimately
be inferred from an unexpectedly high rate of
strikes when the absolute number of those
strikes is very low. In these circumstances
we cannot fairly conclude that the trial judge
erred to think the number and circumstances of
peremptory challenges against hispanic
veniremembers did not actually present a bona
fide issue of racial discrimination.
The state court’s determination that Soria failed to make a
prima facie showing is a factual finding. See Branch, 989 F.2d at
755. Therefore, in reviewing this finding, we must accord it a
presumption of correctness, which can only be rebutted by “clear
and convincing evidence.” Thompson, 161 F.3d at 811; § 2254(e)(1).
Citing Batson, Soria asserts that “the trial judge reviewed
the evidence for ‘purposeful discrimination,’” as opposed to an
inference of purposeful discrimination. Soria does not provide a
cite to the record to support his contention that the trial court
erroneously held him to a higher standard. Our independent review
of the record reveals that, in fact, the trial court found “there
was no pattern or systematic exclusion of persons of the same
ethnic background.” Contrary to Soria’s assertion, the trial
court’s finding comports with the Supreme Court’s requirements as
memorialized in Batson. Indeed, the Supreme Court, by way of
example, opined that “a `pattern’ of strikes against black jurors
included in the particular venire might give rise to an inference
of discrimination.” 476 U.S. at 97, 106 S.Ct. at 1723 (emphasis
added).
Soria further argues that “by refusing to put the prosecutor
7
to his burden under Batson, the trial judge denied petitioner of
the very evidence which would be used to establish purposeful
discrimination.” This argument indicates a fundamental
misunderstanding of the burden-shifting framework crafted in
Batson. “The `shifting burden’ described in the Batson framework
is one of production only.” United States v. Bentley-Smith, 2 F.3d
1368, 1373 (5th Cir. 1993). The party asserting the claim of
purposeful discrimination always shoulders the ultimate burden of
persuasion. See id. More important, Batson makes clear that a
petitioner must establish a prima facie case before a prosecutor is
required to come forward with a neutral explanation for the
challenges. 476 U.S. at 96-97, 106 S.Ct. at 1723. Once a prima
facie case is established, the reason proffered by the prosecutor
will be deemed race neutral unless a discriminatory intent is
inherent in such explanation. Bentley-Smith, 2 F.3d at 1373.
Soria does not now point to any evidence establishing a prima
facie case of purposeful discrimination during voir dire other than
the fact that two Hispanics were peremptorily challenged. Although
a peremptory challenge based on the race of even one minority
venire member constitutes a violation of Batson, “a defendant must
prove discrimination by more than the sole fact that the minority
venire-person was struck by peremptory challenge.” Branch, 989
F.2d at 755.4 In light of the confidence placed in trial judges to
4
In Branch, the prosecution struck one of two minority
venire members. 989 F.2d at 754-55.
8
make this determination,5 we cannot conclude that Soria has
overcome the presumption of correctness afforded the state court’s
finding. Soria’s failure to rebut the state court’s factual
finding that a prima facie case of purposeful discrimination was
not made effectively precludes him from making a substantial
showing of the denial of a federal right.
B. REFUSAL TO REOPEN VOIR DIRE
Soria contends that his right to an impartial jury under the
Sixth and Fourteenth Amendments was violated when the trial court
refused to reopen the voir dire questioning of a prospective juror
to determine whether he had a bias against Soria. “The
constitutional standard of fairness requires that a defendant have
a panel of impartial, indifferent jurors.” Murphy v. Florida, 421
U.S. 794, 799, 95 S.Ct. 2031, 2036 (1975) (citation and internal
quotation marks omitted). “Qualified jurors need not, however, be
totally ignorant of the facts and issues involved.” Id. at 800, 95
S.Ct. at 2036.
At the conclusion of voir dire, defense counsel requested that
it be reopened as to Juror Ramus for the “limited purpose of
inquiring, pursuant to the requirements of Article 35.16(10), as to
whether or not, from hearsay or otherwise, there is established in
his mind such a conclusion as to the guilt or innocence of the
Defendant that would influence his verdict.” In support of that
motion, defense counsel offered the following testimony of the
court’s bailiff, who was coordinating the scheduling of the
5
Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
9
prospective jurors.
Juror Ramus phoned the bailiff, apparently after remembering
that during voir dire he had been asked whether he recalled hearing
about this murder case prior to being called as a prospective
juror. He informed the bailiff that he recalled hearing, while
working on a construction project at a savings bank the previous
summer, about a woman who worked at that bank whose son, grandson,
or some male relative had been murdered. However, Ramus could not
remember the names involved. The bailiff further testified that it
had been determined the victim’s mother was working at that bank
during that time. The trial court denied the motion to reopen voir
dire.
On direct appeal, the Court of Criminal Appeals found that:
further questioning under article 35.16(a)(10)
was not indicated for this purpose in the
present context because the information
communicated to the bailiff did not raise an
issue that Ramus had established in his mind
“a conclusion as to the guilt or innocence of
the defendant.” The fact that he may have
overheard casual conversation about the
incident months earlier, without any mention
of [Soria’s] name or other intimation that
[Soria] might be responsible for the crime,
does not, therefore, suggest a challenge for
cause which [Soria] was prevented from fully
exploring.
Soria now asserts that “there was a duty incumbent upon the
trial court . . . to examine whether Mr. Ramus, having remembered
substantial contact with the victim’s mother at her place of
business, held a bias against the defendant on the issue of guilt
or on the issue of punishment.” Soria’s assertion that Juror Ramus
had substantial contact with the juror is not supported by the
10
bailiff’s testimony. More important, as quoted above, the state
court found that the juror may have overheard casual conversation
about the incident months earlier, without any mention of Soria’s
name or other intimation that Soria might be responsible for the
crime. Soria has not rebutted these findings with clear and
convincing evidence. Thus, we must view his claim of denial of an
impartial jury with these facts in mind.
In Andrews v. Collins, 21 F.3d 612 (5th Cir. 1994), we
addressed a similar claim. In that case, the petitioner contended
that the state court erred in refusing to reopen voir dire prior to
trial to determine whether a juror, who had been a distant relative
of the victim, was biased. More specifically, a daughter of the
juror in question had been married to the victim’s grandson, who
was deceased at the time of trial.
In that case, we construed the petitioner’s argument to be
that, as a matter of law, bias must be imputed to the juror. We
rejected the petitioner’s argument, explaining that, during voir
dire, the prospective juror stated that he did not know of any
reason why he could not be a fair and impartial juror and that the
record contained no evidence indicating that the juror’s “tenuous
relationship” had any effect on the proceedings.6 Andrews, 21 F.3d
6
We also took into consideration other circumstances that
are not applicable to the instant case: (1) the juror was never
directly related to the victim, and the juror’s daughter’s
relationship with the victim’s grandson did not exist at the time
of trial; (2) the petitioner did not allege that the grandson was
alive when the victim was killed; (3) the record contained no
evidence indicating that at the time of trial the juror knew he had
at one time been related to the victim.
11
at 620-21. Under those circumstances, we refused to impute bias to
the juror.7
In the instant case, like the juror in Andrews, Juror Ramus
stated during voir dire that he did not “know of any reason
whatsoever that [he] couldn’t be a fair and impartial juror in this
case.” He further stated that he had no opinion or conclusion
respecting the outcome of the case and that he could be fair and
impartial. When asked whether he had read or heard anything about
this case, Juror Ramus replied, “Not that I remember. I read the
paper every morning, but it doesn’t stick. It seems like I
remember it, but I don’t remember anything about it.” (emphasis
added).8 Additionally, as in Andrews, there is no indication that
the information Juror Ramus overheard had any effect on the
proceedings.
In light of Soria’s failure to rebut the state court’s finding
7
We cited Jones v. Butler, 864 F.2d 348 (5th Cir. 1988), as
support for our conclusion that bias should not be imputed to the
juror. Andrews, 21 F.3d at 621. In Jones v. Butler, the
petitioner argued that a juror was biased, and, thus, the trial
court should have excused her for cause. 864 F.2d at 361-62. In
that case the prospective juror “had lived near the victim and knew
her by sight, had visited the funeral home to view her body” and
had previously worked at a state prison and for a doctor who
testified for the state in that case. Id. at 362. We held that
the juror’s statement that her prior jobs and her curiosity
regarding the victim would not prevent her from being impartial
supported the trial court’s denial of the defense challenge for
cause. Id.
8
When asked why he felt that he could be fair and impartial,
Juror Ramus responded “[b]ecause I don’t know anything about it.
And I’d like to think that I was a fair and impartial person.”
When asked whether he had a problem deciding the case “strictly
limited to the evidence that is introduced in this case on which
you are sitting as a juror,” Juror Ramus responded “[n]o.”
12
that Juror Ramus simply overheard casual conversation regarding the
killing without reference to Soria’s guilt, he cannot show that he
was denied his right to be tried by an impartial jury.
Accordingly, he has failed to make a substantial showing regarding
the denial of a federal right with respect to this claim.
C. LIMITATION OF VOIR DIRE REGARDING SPECIAL ISSUE ONE
Soria argues that his rights to a fair trial and an impartial
jury under the Sixth and Fourteenth Amendments were violated by the
trial court’s refusal to allow Soria to question venire member
Pollard regarding his views on the first special issue at the
punishment phase. In reviewing claims challenging the trial
court’s limitations on voir dire, we are limited, of course, to
such limitations that rise to the level of a constitutional
violation. Herman v. Johnson, 98 F.3d 171, 174 (5th Cir. 1996).
Trial judges are afforded much latitude in determining how voir
dire should be conducted. Id.
Specifically, Soria attempted to ascertain whether venire
member Pollard thought that a finding of intentional conduct at the
guilt phase would automatically satisfy the requirement in special
issue one that the conduct was committed with the reasonable
expectation that the death of the deceased or another would
result.9 As such, Soria argues, the limitation on voir dire
9
As set forth previously, the trial court submitted the
first special issue as follows: “Do you find from the evidence
beyond a reasonable doubt that the conduct of the defendant that
caused the death of the deceased was committed deliberately and
with the reasonable expectation that the death of the deceased or
another would result?”
13
deprived him of the ability to determine whether the venire member
could follow the law and whether the venire member was excusable
for cause, as well as the ability to intelligently exercise a
peremptory challenge.
We addressed a very similar claim in Herman, 98 F.3d at 174.
In that case, during voir dire, the trial court refused to inform
the petitioner which instruction regarding the evaluation of
mitigating evidence would be given to the jurors at the penalty
phase. This Court stated that the trial court “was soundly within
his discretion when he refused to allow detailed questioning of
veniremen on the legal standard they would use to evaluate
mitigating evidence.” Id. We are persuaded that Soria’s inquiry--
whether intentional conduct automatically satisfies the latter part
of the first special issue--falls into the same category as the
questioning in Herman. Thus, we believe that the trial court’s
refusal to allow Soria to make that inquiry was well within its
discretion.
Moreover, Soria exercised a peremptory challenge against
Pollard. In Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 2278
(1988), the Supreme Court held that a trial court’s refusal to
remove a biased venire member for cause did not violate the
defendant’s Sixth Amendment right to an impartial jury because he
exercised a peremptory strike against the challenged venire member.
The Court explained that “[s]o long as the jury that sits is
impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth Amendment
14
was violated.” Id. As such, because Pollard did not sit on
Soria’s jury, Soria is precluded from making a substantial showing
of the denial of a federal right with respect to this claim.
D. CHALLENGES FOR CAUSE
Soria next argues that the trial court’s refusal to excuse two
jurors for cause violated his rights under the Sixth and Fourteenth
Amendments. The standard for determining when a venire member may
be excluded for cause is whether the prospective “juror’s views
would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.”
Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852 (1985)
(internal quotation marks and footnote omitted). A state trial
court’s refusal of a petitioner’s challenge for cause is a factual
finding entitled to a presumption of correctness. Jones v. Butler,
864 F.2d 348, 362 (5th Cir. 1988).
More specifically, Soria asserts that venire members Dunlap
and Curle should have been excused for cause based on their
inability to consider a life sentence if Soria was convicted of
capital murder. Soria further asserts that “fundamental fairness
requires jurors who could not impose a sentence of life
imprisonment in cases where a defendant may be paroled [must] be
excused.” As the Court of Criminal Appeals found, venire member
Dunlap “testified that he would be able to follow instructions in
a murder case not to consider the operation of parole laws and that
he would not adjust the sentence to account for the possibility of
parole.” Soria, 933 S.W.2d at 63. Venire member Curle likewise
15
indicated to the court during voir dire that he would not consider
parole in answering the punishment issues:
[Court]: . . . Both sides have indicated to
you that the punishment for capital murder is
life in prison or the death penalty, depending
on how the questions are answered.
And I believe one side or the other, and I
can’t remember which side it was, talked to
you about that you could not consider parole
in answering questions or determining what
punishment to assess. You understand that?
[Curle]: Uh-huh.
[Court]: So--and I believe you answered
affirmative[ly] that that would not enter into
your consideration in setting your punishment
or in answering any of these questions; is
that correct?
[Curle]: Yes, sir.
Id. (brackets and ellipsis in opinion).
The record reveals that these two venire members’ views
regarding parole would not prevent or substantially impair the
performance of their duties as a juror. See Wainwright v. Witt,
469 U.S. at 424-30, 105 S.Ct. at 852-55. Soria has not rebutted
with clear and convincing evidence the trial court’s implicit
factual finding that the prospective jurors could follow the
court’s instructions.
Soria’s assertion of error extends beyond these two venire
members, however. Specifically, Soria asserts that “the failures
of the Texas capital sentencing scheme to accurately inform the
jury concerning parole of a defendant, convicted of capital murder
and sentenced to life, operated to deny petitioner his guarantee of
a fundamentally fair trial.” Although it is unclear, Soria
16
apparently challenges as unconstitutional the Texas law that
precluded the trial court from instructing his jury regarding the
parole laws in Texas.
Soria admits, however, that he did not seek from the trial
court an instruction on the parole laws of Texas. Indeed, Soria
did not object to the trial court’s instruction to the jury “not to
consider or discuss any possible actions of the Board of Pardons
and Parole or the Governor nor how long this defendant will be
required to serve on a sentence of life imprisonment.” The Texas
Court of Criminal Appeals deems objections to the jury charge
forfeited unless a contemporaneous objection is made at the time
the charge is prepared. See Cannon v. State, 668 S.W.2d 401, 404
(Tex.Crim.App. 1984). Thus, the contemporaneous objection
requirement, an independent and adequate state procedural rule,
would foreclose review of Soria’s claim in state court. Muniz v.
Johnson, 132 F.3d 214, 220-21 (5th Cir. 1998).10 The claim
therefore is procedurally barred from our review in that Soria
offers no argument demonstrating cause for the default and
prejudice resulting therefrom. Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 2565 (1991).
Even if the claim was not procedurally barred, because our
precedent makes clear that the Constitution allows Texas “to keep
10
See also Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.
1997) (explaining that “[a] procedural default also occurs when a
prisoner fails to exhaust available state remedies and the court to
which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims
procedurally barred” (internal quotation marks and citation
omitted)).
17
from juries evidence or instructions of parole eligibility,”11 this
claim would afford Soria no relief. As he acknowledges, this Court
has specifically held that a capital murder defendant is not
constitutionally entitled to question venire members regarding
their views on Texas parole law. King v. Lynaugh, 850 F.2d 1055
(5th Cir. 1988) (en banc). Notwithstanding that en banc opinion,
Soria looks to the Supreme Court’s opinion in Simmons v. South
Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), which was decided
after King v. Lynaugh, but prior to Soria’s direct appeal becoming
final.
In Simmons, the Supreme Court held that if the defendant’s
future dangerousness is at issue and state law prohibits the
defendant’s release on parole, due process requires the sentencing
jury to be informed the defendant is ineligible for parole. 512
U.S. at 156. This Court has explained that Simmons requires a jury
to be informed about a defendant's parole ineligibility only when
(1) the state argues that a defendant represents a future danger to
society, and (2) the defendant is legally ineligible for parole.
Allridge, 41 F.3d at 222.
The instant case is controlled by Allridge. Soria, like the
petitioner in Allridge, would have been eligible for parole under
Texas law if sentenced to life imprisonment. Accordingly, Soria’s
reliance on Simmons to demonstrate that the Texas capital
sentencing scheme denied him a fair trial is unavailing. See id.
11
Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994) (citing
Rose v. State, 752 S.W.2d 529, 534-35 (Tex.Crim.App. 1987)).
18
Soria therefore has not made a substantial showing of the denial of
a constitutional right.12
E. LIMITATION OF VOIR DIRE ON SPECIFIC MITIGATING FACTORS
The next issue is whether the trial court’s restrictions on
the phrasing of certain voir dire questions regarding the
consideration of mitigating evidence violated Soria’s right to an
impartial jury. During voir dire, Soria attempted to pose
questions in the following form: “No matter what the other evidence
would show, could you consider [evidence such as youth or voluntary
intoxication] as a mitigating factor in setting punishment.” The
state objected, and the trial court sustained the objection,
concluding that such phrasing of the question constituted an
attempt to bind the prospective juror regarding his or her position
on the evidence. On direct appeal, the Court of Criminal Appeals
agreed with the trial court:
We . . . hold the trial court in the instant
case did not abuse its discretion in ruling
that the form of appellant’s questions was
improper. Modifying each question by asking,
“no matter what the other evidence showed”
could be construed as an attempt to bind the
venireperson to say that they would view the
specified evidence “in mitigation” or “as a
mitigating factor” under any circumstances,
which would therefore include the
circumstances involved in the instant case.
Soria, 933 S.W.2d at 65. We are not persuaded that the trial court
abused its considerable discretion in finding that the questions
12
Additionally, Soria exercised peremptory challenges against
both Dunlap and Curle. As previously set forth in section C of
this opinion, peremptorily striking the challenged venire members
from the jury is fatal to his claim that his right to an impartial
jury was violated. See Ross, 487 U.S. at 88, 108 S.Ct. at 2278.
19
posed by Soria constituted an attempt to improperly commit the
prospective jurors to a certain view regarding mitigating evidence
anticipated to be presented in his case.
More important, as the Court of Criminal Appeals acknowledged,
Soria was not prevented from rephrasing the questions. Id.
Indeed, the trial court expressly informed Soria that it would
allow him to phrase the question to a prospective juror as follows:
“Can you consider [for example] the age of the Defendant in
deciding on punishment?”
Citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954 (1978),
Soria complains that the trial court’s question reveals whether a
potential sentencer would consider evidence of youth, but not
whether the sentencer would consider youth mitigating evidence.
Thus, he argues that he was unable to discern whether a potential
sentencer should have been excused for cause. Soria’s argument
rests on a faulty premise. “`[T]he fact that a juror might view
the evidence of youth as aggravating, as opposed to mitigating,
does not mean that the rule of Lockett is violated.’” Vuong v.
Scott, 62 F.3d 673, 680 (5th Cir. 1995) (quoting Johnson v. Texas,
509 U.S. 350, 113 S.Ct. 2658 (1993)) (other citation omitted).13
Contrary to Soria’s argument, he was not entitled to challenge
prospective jurors for cause who might view his evidence proffered
in mitigation as the oft-cited, double-edged sword.
13
The rule of Lockett requires, in a capital case, that the
sentencer not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or background and any
circumstances of the offense that the defendant submits as a basis
for a sentence less than death. Vuong, 62 F.3d at 677.
20
Accordingly, although the trial judge did not allow the
particular phrasing Soria sought, we are confident that the form of
questioning permitted by the trial court was sufficient to allow an
intelligent exercise of his peremptory challenges. See Herman, 98
F.3d at 174 (explaining that no constitutional violation was shown
where the trial judge afforded considerable latitude to investigate
possible bias in prospective jurors). In other words, the voir
dire questioning was sufficient to allow Soria to determine whether
a prospective juror would consider the evidence proffered in
mitigation by the defense. Soria is entitled to no more. He
therefore has failed to make a substantial showing of the denial of
a federal right.
F. CHALLENGE FOR CAUSE OF VENIRE MEMBER POLLARD
Soria contends that the trial court’s refusal to excuse venire
member Pollard for cause violated his Sixth Amendment right to an
impartial jury. Soria argues that the voir dire examination of
Pollard revealed that his views precluded him from considering a
defendant’s youth in mitigation of the death penalty.14
On direct appeal, the Texas Court of Criminal Appeals opined
that a juror may give any or no weight to evidence in its
determination of the special issues. Soria, 933 S.W.2d at 65.
“All that the [C]onstitution requires is that he not be precluded
from considering evidence offered in mitigation and that he be
14
When asked whether he thought “the youthfulness, the age
or the maturity or lack thereof, of the defendant would have any
bearing on how you might answer those questions,” Pollard answered
that it would not.
21
provided a vehicle to give effect to such evidence.” Id.
To the extent that the Court of Criminal Appeals states that
it is the sentencer’s prerogative to determine the weight given
mitigating evidence, we certainly agree. See Eddings v. Oklahoma,
455 U.S. 116, 102 S.Ct. 869, 877 (1982). However, a sentencer “may
not give [mitigating evidence] no weight by excluding such evidence
from [his] consideration.” Id. The Supreme Court has made clear
that a sentencer may not “refuse to consider, as a matter of law,
any relevant mitigating evidence.” Id. Therefore, because the
voir dire examination of venire member Pollard indicates that he
could not consider a defendant’s youth in mitigation of the death
penalty, it appears that Pollard’s views were such that he should
have been excused for cause.15
As previously set forth in section C of this opinion, Soria
exercised a peremptory challenge against Pollard, which is fatal to
his claim that his right to an impartial jury was violated. See
Ross, 487 U.S. at 88, 108 S.Ct. at 2278. Soria has not made a
substantial showing of the denial of a federal right with respect
to this claim.
G. WRONGFUL EXCUSAL OF VENIRE MEMBER PALACIOS
Soria contends that the trial court’s excusal for cause of
venire member Palacios violated his right to an impartial jury. As
set forth previously, the standard for determining when a venire
member may be excluded for cause is whether the prospective
15
It is well established that a defendant must be allowed to
offer evidence of his youth in mitigation the death penalty.
Eddings, 455 U.S. at 115, 102 S.Ct. at 877.
22
“juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.” Wainwright v. Witt, 469 U.S. at 424,
105 S.Ct. at 852 (internal quotation marks and footnote omitted).
A state trial court’s refusal of a petitioner’s challenge for cause
is a factual finding entitled to a presumption of correctness.
Jones v. Butler, 864 F.2d at 362.
During the voir dire examination of venire member Palacios,
the trial court granted the State’s motion to excuse her for cause
based on her views regarding the death penalty. Soria now asserts
that Palacios related to the trial judge that, if the evidence
required, she could answer the punishment issues affirmatively.
She repeatedly answered the prosecutor’s questions in a way that
would not require that she be excused for cause under the Witt
standard, Soria argues. Finally, Soria claims there was no reason
for the prosecutor to continue questioning Palacios regarding these
views other than an attempt to elicit “vacillation.”
Soria correctly states that Palacios initially responded
affirmatively, albeit equivocally, to the trial court’s inquiry
regarding whether she could answer “yes” to the punishment issues
knowing that the death penalty would be assessed.16 After
16
THE COURT: Let me ask it one more way,
then we will move on. If after -- if you
found somebody guilty of capital murder, and
then you went back to answer these questions,
if in your mind the facts that you decided you
heard were such that in your mind that you
felt like each of those questions should be
answered yes -- and, of course, you know from
23
Palacios’s response, the trial court stated “All right. Let’s move
on.” The prosecutor did make another inquiry with respect to that
line of questioning--approximately one-half page of transcript--but
then heeded the court’s instruction to “move on” and began to
question Palacios regarding, among other things, her views on jury
sequestration and the concept of proof beyond a reasonable doubt.
Subsequently--twelve pages later in the transcript--the prosecutor
asked Palacios if she had any questions regarding “anything that we
have talked about,” and Palacios indicated that “the question is
still in my mind” in regard to imposing the death penalty.
The record therefore repudiates Soria’s assertion that the
prosecutor’s repetitive questioning evoked Palacios’s
“vacillation.” It was Palacios herself who returned to the subject
of her views on the death penalty.
In granting the State’s motion to excuse Palacios for cause,
the trial court found as follows:
Mrs. Palacios, under the circumstances
and listening to your answers in their
entirety, and I know it has been a long time.
We have been at this right at an hour and a
half, with a little short break.
I feel like viewing your answers in its
what you have been told that if you answer all
three of them yes, that is going to cause me
to assess the death penalty, okay?
If the facts in your mind were such that
you felt like the answers to each of those
questions should be yes, I guess the bottom
line question is: Could you answer them yes?
MRS. PALACIOS: I guess I am going to say
yes.
24
totality that you wouldn’t be able to fairly
consider the law in regard to the death
penalty as the procedure was explained to you.
* * *
I appreciate very much you being down
here and participating to this extent and I
know it was difficult for you.
MRS. PALACIOS: It was.
THE COURT: And I certainly understand
that. And I watched you and listened to you.
And I know how hard it was for you.
But listening to your answers and
watching you and observing how you were
affected by struggling with all of these
things, I am going to go ahead and excuse you
at this time.
(emphasis added).
On Soria’s direct appeal, the Court of Criminal Appeals found
as follows:
Palacios’ answers reflect that she was
overwhelmed by the gravity of the task and was
virtually unable to give a direct answer.
Although at one point in responding to
questions from the trial court she stated that
she could answer the special issues, “yes”
according to the evidence, that response was
an anomaly. She continually expressed
difficulty with the punishment phase of trial
and evaded a direct response as to whether she
could follow the law. Palacios repeatedly
stated that the task as a juror on punishment
would “be hard” for her, but would not state
whether or not she could or could not follow
the law.
* * *
Review of Palacios’ entire voir dire
testimony reflects that she was tormented by
the gravity of the task to the extent that she
was unable to directly answer the State’s
questions as to whether she could follow the
law and answer the issues according to the
25
evidence. In view of the equivocal and
indirect nature of Palacios’ responses, and
her apparent struggle over whether she could
remain impartial, we defer to the trial court.
Soria v. State, 933 S.W.2d at 61-62.
We agree. The record indicates that Palacios was virtually
unable to respond directly to the prosecutor’s inquiry regarding
whether she could affirmatively answer the special issues if proven
beyond a reasonable doubt, with the knowledge that such answers
would cause the trial court to assess the death penalty. Although
she initially stated to the trial judge she could do so, she later
gave the following responses: “I am as confused as you are. I
probably am not qualified”; “Probably I would vote maybe no to one
so that at the same time maybe, you know, not the death penalty”;
“I guess in all sincerity, it probably -- in this case, I probably
could not go for the death penalty” because of my four children; “I
will just go with not. No.”
The trial court’s finding that Palacios’s views would prevent
or substantially impair the performance of her duties as a juror in
accordance with her instructions and her oath has not been rebutted
by Soria with clear and convincing evidence. As such, Soria has
failed to make a substantial showing of the denial of a
constitutional right.
H. TRIAL COURT’S FAILURE TO DEFINE “DELIBERATELY”
Soria argues that the trial court’s failure to decide (when
defense counsel first inquired during voir dire) whether the jury
26
would be instructed regarding the definition of “deliberately”17
violated his due process rights and the right to intelligently
exercise his peremptory challenges in violation of the Sixth and
Fourteenth Amendments.
In a pretrial motion, Soria requested permission to question
venire members regarding the definition of the word “deliberately.”
In that motion, Soria advanced three definitions of the word
“deliberately.” Prior to the commencement of voir dire, the trial
court expressly granted Soria’s request with respect to the
following definition:18
The term “deliberately” is not the linguistic
equivalent of “intentionally” as used in the
Court’s Charge on guilt-innocence;19 rather, it
is the thought process which embraces more
than a will to engage in conduct and activates
the intentional conduct.
(footnote added).
After venire member number five was excused during voir dire,
defense counsel orally inquired whether the trial court would be
17
As set forth previously, the punishment charge required the
jury to answer two questions, the first one being: “whether the
conduct of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that the
death of the deceased or another would result . . . .”
18
The trial court expressly denied Soria’s request to
question the prospective jurors regarding the other two definitions
in the motion.
19
The court’s charge at the guilt-innocence stage of the
trial instructed the jury to determine whether, among other things,
Soria “intentionally cause[d] the death of an individual . . . .”
Intentionally was defined in the jury charge as follows: “[a]
person acts intentionally, or with intent, with respect to the
nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the
result.”
27
submitting the above-quoted definition at the punishment phase.
The court stated that it had not yet decided. However, the court
did state that “in future voir dire, counsel are instructed that if
they want to, to advise the jurors that we anticipate or we think
that the Court may define deliberately in such terms.” “Such
terms” apparently referenced the above-quoted definition.
Subsequently, in the context of objecting to the court’s
questioning of venire member number seventy-three, defense counsel
referred to previously “filed pretrial motions and . . . numerous
requests” to include a definition of “deliberately” in the
punishment charge. The trial judge responded that, although he had
granted a defense motion to question the venire regarding a
specific definition of “deliberately,” he was unaware that a motion
had been filed requesting that “deliberately” be defined in the
charge.20 Defense counsel then stated that he believed he had
requested that “deliberately” be defined in the charge but could
not remember whether such a motion had been filed. After some
discussion, the trial court granted the defense’s request to
include the previously-quoted definition of “deliberately” in the
20
The trial court stated:
Well, this is the first time that the
Court has been aware -- and I have been aware
that [you] have asked me whether or not I was
going to charge on deliberately. And I have
said on several occasions that I didn’t know.
This is the first time an official, to my
knowledge, request of the Court to charge on
deliberately as laid out in Motion No. 29 has
been made.
28
punishment phase charge.
Soria now claims that he “was unable to adequately question
some sixty-seven venire members concerning an instruction in the
punishment charge.” As previously stated, after venire member
number five was questioned, Soria asked the trial court whether
“deliberately” would be defined in the charge. We understand
Soria’s argument to be that the trial court’s failure to make the
final decision at that point rendered counsel unable to adequately
question venire members numbered six through seventy-two.
Soria asserts that Knox v. Collins, 928 F.2d 657 (5th Cir.
1991), controls the disposition of this claim. We disagree. In
Knox, the state trial court allowed defense counsel to question the
venire members regarding their understanding of what constitutes a
“life sentence” in Texas. Id. at 658. During voir dire, the trial
court made certain statements indicating that he would instruct the
jury on the law regarding parole eligibility. Relying on those
statements, defense counsel adopted a different strategy for jury
selection and, thus, refrained from using peremptory challenges
against two venire members whose views regarding a “life sentence”
appeared unfavorable to the defendant.
Although we acknowledged our prior case law holding that the
Constitution did not mandate instruction on parole in capital
cases,21 we concluded that the trial judge's unkept promise to
21
We decided Knox prior to the Supreme Court’s opinion in
Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187. As
explained previously in section D of the instant opinion, because
Soria would have been eligible for parole under Texas law if
sentenced to life imprisonment, the Constitution did not require
29
instruct the jury--such an instruction would have corrected any
misconceptions about parole--deprived Knox of a fair opportunity to
intelligently exercise the peremptory challenges he was provided
under Texas law. Id. at 662. Thus, we granted habeas relief based
on the denial of due process.
Knox clearly offers Soria no succor. In the instant case,
prior to the commencement of voir dire, the trial court granted
Soria permission to question venire members on a definition of
“deliberately” suggested by Soria.22 Additionally, the trial judge
instructed counsel that they could advise prospective jurors that
counsel anticipated the court would use that particular definition
of deliberately. By all indications, the trial judge intended to
use the definition advanced by Soria. These intentions later
materialized when the trial court ultimately included in the
punishment phase charge the same definition of deliberately Soria
advanced in a pretrial motion granted by the court. Unlike Knox,
the trial judge in the instant case kept his promise.
Moreover, this Court previously rejected a Texas habeas
petitioner’s claim that his due process rights and Sixth Amendment
right to trial by jury and counsel were violated when the state
trial court refused to allow him to inquire into the venire
members’ understanding of the term “deliberately.” Milton v.
that his jury be instructed with respect to parole.
22
As a practical matter, we do not understand why counsel,
once the trial court granted the motion to allow questioning based
on a particular definition, would not make inquiries of the venire
members based on that particular definition.
30
Procunier, 744 F.2d 1091, 1095 (5th Cir. 1984). We explained that
“counsel has no right to ask prospective jurors to articulate their
understanding of the language.” Id.; see also Herman, 98 F.3d at
174 (rejecting petitioner’s claim that trial court’s refusal to
inform him of the instruction to be given at the punishment phase
on evaluating mitigating evidence deprived him of his right to
intelligently exercise his peremptory challenges). If a trial
court’s refusal to allow questioning during voir dire regarding the
definition of “deliberately” does not rise to the level of a
constitutional violation, then certainly the trial court’s
“failure” in the instant case to make a final decision initially
regarding the definition of deliberately is not constitutional
error. Accordingly, for all the preceding reasons, we conclude
that Soria has failed to make a substantial showing of the denial
of a federal right.
I. SYSTEMATIC UNDERREPRESENTATION OF HISPANICS AND YOUTH
Soria next argues that the method of selecting the jury panel
(voter registration lists) in Tarrant County at the time of his
trial systematically underrepresented Hispanics and young persons
in violation of the Sixth Amendment. In the court below, in
response to this argument, the respondent asserted that the claim
was procedurally barred. The district court did not address the
procedural bar; instead, it rejected the claim on the merits. The
district court erred in so doing.
During Soria’s state habeas proceedings, the trial court,
31
citing Ex parte Gardner, 959 S.W.2d 189 (Tex.Crim.App. 1998),23
found that Soria had “forfeited his fair cross section complaint
when he failed to raise it on direct appeal.” The Texas Court of
Criminal Appeals adopted the trial court’s findings on this claim.
Although the state court addressed the merits of the claim in the
alternative, it expressly applied a procedural bar to review of the
claim.24 We therefore are precluded from reviewing the merits of
the claim unless Soria establishes cause for the default and actual
prejudice resulting from the constitutional violation. Coleman v.
Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Because Soria
attempts to demonstrate neither cause nor prejudice, this claim is
procedurally barred.
In an abundance of caution, we briefly address the merits of
this argument in the alternative. This Court has held that “[t]he
fact that an identifiable minority group votes in a proportion
lower than the rest of the population and is therefore
underrepresented on jury panels presents no constitutional issue.”
United States v. Brummitt, 665 F.2d 521, 527 (5th Cir. 1981)
(citing United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir.
1978)). Our case law clearly precludes Soria from making a
23
In that case, the Court of Criminal Appeals held that the
habeas applicant forfeited his right to challenge the sufficiency
of the warnings he received at his pretrial psychiatric examination
because he had not raised it on direct appeal. Ex parte Gardner,
959 S.W.2d at 191.
24
“A state court expressly and unambiguously bases its denial
of relief on a state procedural default even if it alternatively
reaches the merits of a defendant's claim.” Fisher v. Texas, 169
F.3d 295, 300 (5th Cir. 1999).
32
substantial showing regarding the denial of a federal right with
respect to this issue.
J. INEFFECTIVE ASSISTANCE OF COUNSEL
Soria contends that trial counsel rendered ineffective
assistance by failing to adequately develop and present important
evidence in mitigation of the death penalty. To prevail on an
ineffective assistance of counsel claim, a petitioner must
demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). To establish
prejudice, the petitioner must show that “it is reasonably likely
that the jury would have reached a different decision absent
counsel’s unprofessional errors.” Faulder v. Johnson, 81 F.3d 515,
519 (5th Cir. 1996).
Soria relies on several cases from various courts,25 including
the Fifth Circuit, in which attorneys were found to have rendered
ineffective assistance by failing to present mitigating evidence
during the punishment phase. Unlike Soria’s counsel, however, the
attorneys in those cases presented either very little or no
evidence in mitigation of the death penalty.
Soria concedes that his counsel presented mitigating evidence
at the punishment phase. In fact, the record reflects that Dr.
James Grigson, a psychiatrist, testified that he examined Soria
25
Jones v. Thigpen, 788 F.2d 1101 (5th Cir. 1986); Jackson
v. Herring, 42 F.3d 1350 (11th Cir. 1995); Brewer v. Aiken, 935
F.2d 850 (7th Cir. 1991); Mathis v. Grant, 704 F.Supp. 1062
(N.D.Ga. 1989); Averhart v. State, 614 N.E.2d 924 (Ind. 1993).
33
and, in his opinion, Soria would not be a continuing threat to
society. Dr. Grigson also testified that Soria was remorseful
about the killing, that Soria experienced nightmares after the
killing, and that Soria could not have killed the victim on his
own--Soria’s confession indicated that he committed the crime at
the direction of Mike Lagunas.
Soria’s mother and brother testified regarding the locations
where the family had lived, the family’s migrant farm work, Soria’s
erratic job history, the family’s membership in the Jehovah’s
Witness Church, Soria’s dropping out of school after ninth grade,
and the bad influence of Soria’s new friends, especially
codefendant Lagunas.
Notwithstanding that evidence, Soria argues that because of
counsel’s failure to “thoroughly investigate,” a significant amount
of mitigating evidence regarding the hardships of his life was not
presented to the jury, including: his father’s abuse of alcohol
and its relation to the mistreatment he suffered at the hands of
his father; his poor performance in school; the isolation he
experienced due to the limitations placed on his activities by his
father and his religion; the depression he experienced because of
the sudden death of his best friend ten months prior to the instant
offense; his expulsion from the family home just prior to the
murder.
Contrary to Soria’s assertion, there was some evidence
presented by the defense at the punishment phase regarding Soria’s
poor performance in school (Soria’s grades declined; he dropped out
34
of high school) and his expulsion from the family home (Soria “was
kicked out of his home the Friday that the offense actually
occurred”).
In any event, it is clear from a review of the record that
defense counsel was attempting to portray Soria as a young man who
had not been in any serious trouble until he fell under the
influence of codefendant Lagunas. During closing argument at the
punishment phase, counsel pointed to the portion of Soria’s
confession to the police in which Soria stated that the first time
they attempted to rob the victim, he became scared and left because
he could not do it. Counsel further argued to the jury that “it
wasn’t until . . . they reported [back] to Mike [Lagunas] . . . and
he said, `Let’s do it.’ It was Mike who was the leader. It was
Mike under whom this young man was led.”
Moreover, based on defense counsel’s affidavit, the state
court found that despite the fact that defense counsel encouraged
Soria to be candid and forthcoming about his past and family
background, the allegations of physical abuse and the father’s
alcoholism were never revealed to counsel or to the psychiatrist
who examined Soria. The state court expressly found Soria’s claim
that he was beaten by his father not credible. The state court
found that Soria’s defense at trial was that he came from a good
home, and the instant crime was an aberration. The state court
further found that the evidence Soria now contends should have been
presented in mitigation to the jury amounts to a “defense that
[Soria’s] father turned [him] into a monster.” Soria has not
35
rebutted these state court findings with clear and convincing
evidence.
Soria has failed to show that counsel’s investigation was
constitutionally inadequate. Counsel talked to the family members
and encouraged Soria and his family to be candid regarding his past
behavior and family background. Even had the state court not found
the physical abuse allegations incredible, counsel should not be
faulted for Soria’s decision to conceal any such evidence. Cf.
Moore v. Johnson, 194 F.3d 586, 607 (5th Cir. 1999) (explaining
that petitioner’s ability to meet his burden of demonstrating
inadequate investigation by counsel was substantially undermined
when petitioner chose to present an alibi defense). Accordingly,
we conclude that counsel’s investigation and the strategic
decisions based thereupon were reasonable.
Moreover, even assuming arguendo that Soria could show that
counsel’s performance was deficient, he cannot show prejudice. As
set forth above, the state court discredited the abuse allegations,
and the jury was presented evidence of both Soria’s poor school
performance and his expulsion from the family home. Soria has not
persuaded us that, but for counsel’s failure to present evidence of
the sudden death of his best friend and his resulting depression
and isolation, there is a reasonable probability that the result of
the proceeding would have been different. See, e.g., Faulder v.
Johnson, 81 F.3d 515, 519-20 (5th Cir. 1996) (holding no prejudice
shown when counsel failed to introduce evidence of, among other
things, brain damage from injury and organic brain disorder which
36
impaired his judgment and impulse control). Soria has not made a
substantial showing of the denial of a federal right with respect
to this claim.
K. CONCLUSION
In sum, Soria has not shown that any of his claims are
debatable among jurists of reason, that a court could resolve the
issues in a different manner, or that the questions are adequate to
deserve encouragement to proceed further. Drinkard v. Johnson, 97
F.3d 751, 755-56 (5th Cir. 1996). Because Soria has failed to make
a substantial showing of the denial of a constitutional right, we
DENY his request for a COA.
DENIED.
37