Soria v. Johnson

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8, 1994) (per curiam) (unpublished).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