Martinez v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 23, 2005

_______________________ Charles R. Fulbruge III
Clerk
No. 03-21228
_______________________

RAYMOND DELEON MARTINEZ,

Petitioner - Appellant,

versus

DOUG DRETKE, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,

Respondent - Appellee.

Appeal from the United States District Court
for the Southern District of Texas

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Raymond DeLeon Martinez was convicted of capital murder

in Texas state court and sentenced to death. Martinez filed a

petition for a writ of habeas corpus relief under 28 U.S.C. § 2254

in the United States District Court for the Southern District of

Texas, Houston Division. The district court denied the petition,

and, sua sponte, denied Martinez a certificate of appealability

(“COA”). Martinez then filed a Request for the Issuance of a

Certificate of Appealability with this court. For the following

reasons, Martinez’s petition for COA is granted in part and denied

in part. However, his request for habeas relief is denied.
 I. BACKGROUND

Martinez was tried and convicted in Texas state court of

capital murder for the July 13, 1983 murder of Herman Chavis during

the course of a robbery.1 SHTr. at 251.2 The following facts were

presented to the jury.

On July 13, 1983, Martinez, accompanied by two other men,

entered the Long Branch Saloon owned and operated by Herman Chavis,

the victim, and his wife, Pauline Chavis Smith. XX Tr. at 212-16,

369-70, 372-73, 414, 530-31.3 Smith recognized the three men from

the previous Monday and Tuesday nights, when they came in,

purchased beer, took only one sip, and left. Id. at 214-18, 224,

253, 384. On this date, the men ordered three Miller Lite beers

and stood at the bar. Id. at 225, 322. Soon thereafter, one of

the men locked the front door, produced a revolver, and told

everyone to “hit the floor.” Id. at 226, 229, 232, 323-25, 328,

378, 381, 600. Martinez also brandished a revolver and threatened

a patron. Id. at 600. He then grabbed the barmaid, shoved the

revolver into her ribs, and demanded the money from the cash

drawer. Id. at 226, 229, 232, 323-25, 328, 378, 381, 600.

1
On March 15, 1984, Martinez was convicted for the capital murder of
Herman Chavis, but the conviction was reversed and remanded for a new trial on
September 21, 1988. SHTr. at 251 (citing Martinez v. State, 763 S.W. 413 (Tex.
Crim. App. 1988)). In 1989, Martinez was retried, convicted, and sentenced to
death by lethal injection. Id.
2
“SHTr.” refers to the state habeas transcript.
3
The Roman numerals refer to the volume number of the trial
transcript, which is abbreviated “Tr.”

2
Martinez was seen reaching into the drawer, although it was later

determined that he took no money. Id. at 396, 234. A verbal

exchange between Chavis and the men ensued, after which Martinez

pointed his gun at Chavis. Id. at 601, 605, 607, 384, 386.

Several shots were fired. Id. at 231, 386. Chavis later died of

a gunshot wound to the back of the head and a gunshot wound through

the back that lodged in his right arm. IXX Tr. at 15, 20-21.

At the punishment phase of Martinez’s trial, the state

presented evidence of extraneous offenses committed by Martinez,

including: the July 11, 1983 robbery/murder at the Don Ramon

Lounge; the July 12, 1983 robbery at Elaine’s Lounge; the July 15,

1983 murder of his own sister, Julia, and her boyfriend, Guillermo

Chavez; and the July 21, 1983 murder of prostitute Tracy Pelkey.

XXIV Tr. at 43-45, 113, 145-58; XXV Tr. at 291, 298-300, 330-38;

XXVI Tr. at 528-39, 553; XXVI Tr. 677-84, 692-97. The state also

presented evidence of Martinez’s numerous prior convictions,

including: burglary for which he received a two-year prison term

in 1964; armed robbery and assault for which he received a twenty-

year prison term in 1969; jail-breaking for which he received a

five-year prison term in 1969; and theft for which he received a

five-year prison term in 1969. SHTr. at 252. The state presented

other aspects of Martinez’s violent criminal past through several

of his family members.

Jerry DeAnda, Martinez’s older brother, testified that

Martinez (1) belonged to a gang known as the Texas Syndicate;

3
(2) planned to produce drugs for the gang; (3) stabbed a cell-mate

during a former prison term; (4) escaped from jail in 1969;

(5) stole DeAnda’s gun with the intent to kill someone;

(6) committed several violent robberies in the Fort Worth area; and

(7) robbed and murdered someone in California while stealing

chemicals for a crystal methamphetamine laboratory he intended to

create for the gang. His sister, Raquel Martinez, testified that

(1) the Government delayed Martinez’s 1982 release from a fourteen-

year prison term because he stabbed another inmate; (2) Martinez

wanted to produce and sell drugs for the Texas Syndicate; (3) he

twice threatened her with a gun; (4) he stole her car; (5) he

attempted to abduct her; and (6) he admitted to committing

seventeen robberies in the Fort Worth area.

The state also presented evidence, through a clinical

psychologist, that a hypothetical person who committed the crimes

allegedly perpetrated by Martinez would be likely to commit future

criminal acts of violence, and that a person found to have

deliberately committed these acts would warrant a finding of future

dangerousness. The state also presented evidence that although

Martinez had been found not guilty by reason of insanity and

committed to Rusk State Hospital in 1967, he was found sane on

October 21, 1968 and subsequently released. Several witnesses

described Martinez as easily provoked and hot-tempered.

4
 Through cross-examination and the presentation of its own

witnesses, defense counsel4 elicited the following testimony.

Martinez’s older brother, DeAnda, testified that their mother

suffered from mental illness, for which she was hospitalized during

their childhood. Id. at 893. He also testified that Martinez was

committed to a state mental institution for a time. Id. at 894.

Kathryn Cox, a former prison minister with the Salvation Army,

testified that Martinez’s acts constituted a self-destructive cry

for help, and that she found him eager to learn, regretful for his

past acts, and amenable to rehabilitation. She also testified that

he was suicidal. Two Harris County Sheriff’s Deputies, one former

and one current, testified that they had interacted with Martinez

several dozen times without incident. Defense counsel also elic-

ited testimony that Martinez suffered from malnourishment while at

Rusk State Hospital, was brutalized by prison guards while in care

of the Texas Youth Commission, and was committed for a period of

time to Wichita Falls State Mental Hospital.

Cross examination elicited some adverse information from

Martinez’s family members, including that they were not aware that

Martinez had been diagnosed with any mental disorders during his

commissions to state mental institutions. Rather, they testified

that Martinez was very intelligent and had no mental health

problems. Martinez’s sister, Raquel Martinez, also testified that

4
Martinez was represented by Ray Montgomery in both the 1984 and 1989
trials, as well as J.C. Castillo in the 1989 trial.

5
Martinez, in fact, had committed himself to mental institutions for

the purpose of receiving free food and shelter.

At punishment, defense counsel also offered into evidence

records from Wichita Falls State Mental Hospital demonstrating

that: Martinez’s mother was treated at San Antonio State Hospital

for mental health issues; Martinez was a fearful and weak child who

suffered from some form of epilepsy that went medically untreated

because his father thought his “spells” were derived from

“spirits”; Martinez began drinking at thirteen years of age; and

that Martinez was hostile, violent, lost control and committed acts

that he later regretted. The Wichita Falls State Mental Hospital

records confirmed that Martinez’s admissions to the hospital were

voluntary, and indicated that he left the facility without

permission at least twice. Additionally, records from the Texas

Department of Corrections indicated that Martinez earned a GED

while incarcerated.

On the evidence presented, the jury found beyond a

reasonable doubt that: (1) Martinez’s conduct caused the death of

Chavis, and was deliberately committed with the reasonable

expectation that Chavis’s death would result; (2) there was a

probability that Martinez would commit future criminal acts of

violence that would constitute a threat to society; and (3)

Martinez’s conduct in killing Chavis was an unreasonable response

to any provocation by Chavis. The court then sentenced Martinez to

death.

6
 Martinez unsuccessfully appealed to the Texas Court of

Criminal Appeals, Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App.

1993), reh’g denied, (October 20, 1993) and then sought certiorari

from the Supreme Court, which denied his petition. Martinez v.

Texas, 512 U.S. 1246 (1994). Martinez filed a state application

for a writ of habeas corpus on April 24, 1997, asserting

ineffective assistance of counsel. During the state habeas

proceedings, Martinez requested funds and an evidentiary hearing to

develop his claim. The state court denied both requests. Upon

review of Martinez’s habeas writ, the State’s answer, affidavits of

Martinez’s counsel, and the State’s proposed findings of fact and

conclusions of law,5 the state habeas court denied Martinez’s writ,

finding that he had not been deprived of effective assistance of

counsel. The Court of Criminal Appeals upheld the state court’s

habeas determination on August 18, 1999.

Martinez filed a timely § 2254 petition for a writ of

habeas corpus in federal district court. In 2001, Martinez filed

an amended writ incorporating the affidavits of Dr. Stephen K.

Martin, a neuropsychologist; Dr. Paula Lundberg-Love, a psycholo-

gist specializing in psychopharmacology; and Michael W. Jewell, a

fellow inmate. On February 6, 2003, the district court held an

evidentiary hearing on the following issues: (1) whether Martinez

was mentally ill at the time of his offense; (2) whether his trial

5
Martinez failed to file any proposed findings of facts and
conclusions of law on or before the July 8, 1999, deadline.

7
counsel was ineffective for failing to present an insanity defense;

and (3) whether there was cause for any procedural default of these

claims.6 At the hearing, Martinez submitted evidence that he has

a family history of mental illness, was exposed to neurotoxins in

utero and through adolescence when he picked cotton as a migrant

farm worker, was physically abused by an older brother, was

physically abused by prison guards while in care of the Texas Youth

Commission, suffered untreated epileptic seizures, and was

previously adjudged not guilty by reason of insanity for an

unrelated crime in 1967. With leave of court, the evidentiary

hearing was later supplemented with depositions. On November 25,

2003, the district court issued a memorandum and order and entered

a final judgment, denying Martinez’s petition for a writ of habeas

corpus, and denying, sua sponte, a COA.

On December 19, 2003, Martinez filed a Request for the

Issuance of a Certificate of Appealability with this court,

maintaining that he was deprived of his constitutional right to

effective assistance of counsel by his counsel’s failure to: (1)

6
In furtherance of Martinez’s claims, the district court granted
Martinez an evidentiary hearing in 2003 and allowed him to present evidence that
he had not presented to the state court. This raised exhaustion of state
remedies and futility issues, but the district court predicated its substantive
ruling on the fact that the state court’s refusal to grant a hearing and funds
to develop his claim during the state habeas action constituted cause for
Martinez’s procedural default. However, the district court found that no
prejudice resulted from the state court’s refusal of funds. Martinez v. Dretke,
Crim. No. H-99-3147, slip op. at 11-15 (Tex. D.C. November 25, 2003).
The State has not objected to the district court’s mode of procedure, i.e.,
its conduct of an independent evidentiary hearing, so we need not consider the
matter further. Suffice it to note that the court’s procedure remedied
Martinez’s complaint about the insufficiency of state processes to allow him to
develop and present additional mental health evidence.

8
conduct an adequate investigation into his mental health

background; (2) introduce evidence of neurological impairment and

a prior adjudication of not guilty by reason of insanity as a

mitigating factor and assert an insanity defense during the

guilt/innocence phase of his trial; and (3) introduce evidence of

his neurological impairment as a mitigating factor during the

punishment phase of his trial. On December 28, 2004, we invited

additional briefing on the latter two issues.

II. STANDARD FOR GRANTING A COA

Martinez filed his § 2254 petition for a writ of habeas

corpus after the effective date of the Antiterrorism & Effective

Death Penalty Act (“AEDPA”), April 24, 1996. Therefore, the

petition is subject to the procedures imposed by AEDPA and post-

AEDPA precedent. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct.

2059, 2068 (1997).

Under AEDPA, Martinez must obtain a COA before an appeal

can be taken to this court. 28 U.S.C. § 2253(c)(2). This court

may grant a COA only upon finding that Martinez has made a

substantial showing of denial of a constitutional right. Id.;

Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603 (2000).

To satisfy this standard, Martinez must demonstrate that reasonable

jurists could find the district court's resolution of his

constitutional claims debatable or that reasonable jurists could

conclude that the issues presented are adequate to deserve

9
encouragement to proceed further. Miller-El v. Cockrell, 537 U.S.

322, 336, 123 S. Ct. 1029, 1039 (2003). “[A] COA ruling is not the

occasion for a ruling on the merit of petitioner's claim[.]” Id.

at 331, 123 S. Ct. at 1036. Instead, this court must engage in a

narrow threshold “overview of the claims in the habeas petition and

a general assessment of their merits.” Id. at 336, 123 S. Ct. at

1039. Because Martinez’s case involves the death penalty, we must

resolve any doubts as to whether a COA should issue in his favor.

Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

Upon grant of a COA, to obtain habeas relief Martinez

must demonstrate that the state court proceeding “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

A state court’s decision falls within this rubric “if the state

court arrives at a conclusion opposite to that reached by this

Court on a question of law or if the state court decides a case

differently than the Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413,

120 S. Ct. 1495, 1523 (2000). A state court decision may also

qualify under § 2254(d)(1) “if the state court identifies the

correct governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the prisoner's

case.” Id. at 413, 120 S. Ct. 1523. Under § 2254(d)(1), we need

only determine whether the state court’s application of clearly

10
established federal law was objectively unreasonable. Neal v.

Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc), cert. denied,

537 U.S. 1104, 123 S. Ct. 963 (2003). “We have no authority to

grant habeas corpus relief simply because we conclude, in our

independent judgment, that a state supreme court’s application of

[federal law] is erroneous or incorrect.” Id., 286 F.3d at 236.

III. ANALYSIS

Martinez maintains that he was deprived of his

constitutional right to effective assistance of counsel by his

counsel’s failure to: (1) conduct an adequate investigation into

his mental health background; (2) introduce evidence of

neurological impairment and a prior adjudication of not guilty by

reason of insanity as a mitigating factor and assert an insanity

defense during the guilt/innocence phase of his trial; and

(3) introduce evidence of his neurological impairment as a

mitigating factor during the punishment phase of his trial.

To prevail on this claim, Martinez must demonstrate, as

to each issue for which he requests a COA, that: (1) his counsel’s

performance was deficient; and (2) his counsel’s deficient

performance prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 687 104 S. Ct. 2052, 2065 (1984). There is a strong

presumption in favor of competency. Id. at 689, 104 S. Ct. at

2065. Counsel’s performance was deficient only if it “fell below

an objective standard of reasonableness” as measured by “prevailing

11
professional norms.” Id. at 688, 104 S. Ct. at 2065. Review of

counsel’s performance “must be highly deferential” and take into

account “counsel’s perspective at the time.” Id. at 689, 104 S.

Ct. at 2065. We must make every effort to avoid “the distorting

effect of hindsight.” Id. Where counsel has engaged in an

adequate investigation, any strategic decision made as a result of

that investigation “fall within the wide range of objectively

reasonable professional assistance.” Id. “A conscious and in-

formed decision on trial tactics and strategy cannot be the basis

for constitutionally ineffective assistance of counsel unless it is

so ill chosen that it permeates the entire trial with obvious

unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir.)

(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983)),

cert. denied, 537 U.S 1018, 123 S. Ct. 549 (2002).

Even if we find counsel’s performance deficient, Martinez

must demonstrate prejudice. Strickland, 466 U.S. at 692, 104 S.

Ct. at 2067. Martinez must demonstrate that “there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694, 104 S. Ct. at 2068. In capital cases,

the standard is “whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did not

12
warrant death.” Id. at 695, 104 S. Ct. at 2069. Under

Strickland’s conjunctive test, Martinez’s failure to demonstrate

either deficiency or prejudice must result in the failure of his

claim. Id. at 687, 104 S. Ct. at 2065.

1. Inadequate Investigation

Martinez’s request for a COA on this issue is denied.

Martinez contends that he was denied effective assistance of

counsel by virtue of his counsel’s failure to adequately

investigate his mental health background. Martinez argues that his

mental health history, his exposure to neurotoxins in utero and as

a migrant child farm worker, and his use of anti-psychotic

medications should have put counsel on notice that a more thorough

investigation into his background was required. The district court

dismissed Martinez’s claims as overstated given the evidence

presented at trial regarding the mental health background of

Martinez and his mother, and it denied a COA on this issue. We

affirm that denial, and also deny Martinez’s instant request for a

COA on this claim.

“[C]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary. . .” Id. at 691, 104 S. Ct. at 2066.

“A particular decision not to investigate must be directly assessed

for reasonableness in all circumstances, applying a heavy measure

of deference to counsel’s judgments.” Id. A brief overview of the

13
instant claim evinces that counsel conducted a reasonable

investigation into Martinez’s mental health history and made

reasonable decisions to forgo further investigation into certain

lines of inquiry based on their professional judgment.

In brief, Martinez’s 1989 trial counsel drew upon

information gained during the 1984 prosecution to investigate

further Martinez’s mental health background, criminal past, and

family history in preparation for the 1989 trial. In this effort,

counsel obtained additional mental health records, hired an

investigator, conducted additional investigatory interviews of

Martinez’s family members, and sought the assistance of a

psychiatrist who declined to help. 3 RR at 12 (1984); 37 RR at

1375-76, 1391, 1399;7 HR at 30.8 As of 1989, Martinez’s family

members, bittered by the fact that he had murdered his sister and

reeling from threats he had made against some of them, were

extremely reluctant to assist in his defense. Yet, counsel was

able to extract some additional information from them, including

that none appeared to have been migrant farm workers. Because

Martinez’s family members were unwilling or unable to help at the

time, the fact that counsel had little family history with which to

work was not due to ineffective representation but to the

predicament Martinez created for himself.

7
“RR” refers to the 1984 trial record.
8
“HR” refers to the federal habeas court hearing record.

14
 Moreover, nothing in counsel’s personal and professional

experience, in their interactions with Martinez, or in Martinez’s

conditions of confinement, put counsel on notice that further

inquiry was warranted. See Strickland, 466 U.S. at 691, 104 S. Ct.

at 2066 (“The reasonableness of counsel’s actions may be determined

or substantially influenced by the defendant’s own statements or

actions.”). Both defense counsel had been migrant child farm

workers and had picked cotton, and both had extensive backgrounds

in handling mentally-ill people. Both had interacted with

Martinez, without incident or indication of psychosis, during a 13-

month period when Martinez was not taking anti-psychotic drugs.

Although aware that Martinez had been prescribed anti-psychotic

medications, counsel’s experience taught that anti-psychotic drugs

were often prescribed in prison to alleviate the anxieties of

incarceration rather than to treat a serious mental illness.

Counsel also knew that Martinez had been diagnosed with an anxiety

disorder. Thus, the decision of Martinez’s counsel to forgo

further inquiry into his mental health was not unreasonable.

Contrary to Martinez’s contentions, the 2003 post-

reconciliation testimony of his family members, the testimony of

experts not involved in the 1989 trial proceedings, and the

production of a prisoner-witness whom Martinez failed to identify

during the state trials in 1984 and 1989, see HR at 200-237; HR at

200; HR at 40, 47, 55, 88-90, 170-72, are irrelevant to counsel’s

perspective in 1989. Thus, this evidence is insufficient to

15
demonstrate that counsel failed to conduct an adequate

investigation into Martinez’s mental health background in

preparation for the 1989 trial.

Upon an overview of Martinez’s claim and a general

assessment of its merit, we conclude that Martinez has failed to

make a substantial showing that the level of investigation

conducted by his counsel deprived him of his constitutional right

to effective assistance of counsel. Circuit precedent fully

supports this conclusion.9 Reasonable jurists would not debate the

district court’s conclusion. Therefore, a COA will not issue as to

this claim.

2. Failure to Introduce Mitigating Evidence During the
Guilt/Innocence and Punishment Phases of Trial

Martinez also sought COA on two other claims: (1) that

his counsel failed to introduce evidence of Martinez’s neurological

impairment and prior adjudication of not guilty by reason of

insanity during the guilt/innocence phase of his trial to support

an insanity defense; and (2) that his counsel were deficient for

failing to introduce evidence of his mental problems and

neurological impairment as a mitigating factor during the

punishment phase. The district court denied both claims on the

9
See Clark v. Collins, 19 F.3d 959, 964-65 (5th Cir. 1994) (rejecting
petitioner’s claim of deficient performance where existing psychiatric
evaluations confirmed counsel’s own observations of the petitioner and counsel
had no basis in fact or reason to conclude that additional psychiatric
evaluations were merited); Riley v. Dretke, 362 F.3d 302 (5th Cir. 2004) (finding
counsel’s interactions with the petitioner, petitioner’s probation and juvenile
records, conversations with petitioner’s family members sufficient to support
counsel’s conclusion that petitioner was not suffering from mental illness).

16
merits and declined to issue a COA for either. To this extent, the

district court’s determinations were in error.

The relevancy threshold for mitigation evidence is

extremely low, and is satisfied by evidence that “‘tends logically

to prove or disprove some fact or circumstance which a fact-finder

could reasonably deem to have mitigating value.’” Tennard v.

Dretke, 124 S. Ct. 2562, 2570 (2004) (quoting McKoy v. North

Carolina, 494 U.S. 433, 440-441, 110 S. Ct. 1227, 1232 (1990)). In

capital cases, the relevancy standard translates into “whether the

evidence is of such a character that it might serve as a basis for

a sentence less than death.” Id. at 2571 (internal citation and

quotations omitted). Here, reasonable jurists could debate the

Strickland issues raised by counsel’s failure to present an

insanity defense at trial and to argue at sentencing that Martinez

suffered from insanity and/or neurological impairments that

affected his ability to conform his conduct to the law’s

requirements. Therefore, we granted COA as to each of these

issues. Nevertheless, having reviewed the merits briefs and the

record in full, we deny Martinez’s request for habeas relief,

finding the state habeas court’s determinations consistent with

federal law as established by the Supreme Court and distilled by

this Circuit.

Resolving these claims, the state habeas court made the

following findings: the jury had before it evidence regarding

Martinez’s mother’s mental health as well as his own; several

17
psychological evaluations determined that Martinez did not suffer

from any gross psychiatric disorders or otherwise demonstrate

psychotic symptoms; Martinez’s claims of neurological impairment

were legally meritless; and Martinez’s counsel investigated,

developed and presented mitigating evidence at trial. SHTr. at

255-58. Finally, the court found that even if Martinez’s counsel

was deficient, Martinez was not prejudiced given the overwhelming

evidence of his guilt for the crime of conviction, his prior

convictions, and his extraneous offenses. Id.

For reasons explained below, the state court’s deter-

mination that no constitutional error attended counsel’s decisions

were neither contrary to nor did they result from an unreasonable

application of federal law. Viewing counsel’s performance through

a “‘highly deferential’” lens and with a view to “‘the facts and

resources available to [counsel] at the time of trial,’” Williams

v. Cain, 125 F.3d 269, 276 (5th Cir. 1997) (quoting Motley v.

Collins, 18 F.3d 1223, 1226 (5th Cir. 1994)), it is apparent that

counsel’s strategic decisions were based on their professionally

informed and competent assessment of the facts of Martinez’s case

in 1989. As such, their decisions fell “within the wide range of

objectively reasonable professional assistance,” and, thus, are

incapable of forming the basis of an ineffective assistance of

counsel claim. Strickland, 466 U.S. at 689, 104 S. Ct. at 2066.

First, on direct appeal, the state habeas court found

that the presumption of insanity issue was not preserved for review

18
because, after counsel submitted a motion on the issue, the state

trial court never formally resolved the motion and Martinez’s

counsel never renewed it. Martinez v. State, 867 S.W.2d 30, 33

(Tex. Crim. App. 1993). The state habeas court further found that,

even if the issue was properly preserved, the subsequent jury

determination of sanity in 1968 and Martinez’s consequent release

were sufficient to overcome the presumption. Id. Because federal

courts are not entitled to review state court dispositions that

rest on adequate and independent state grounds, see Lambrix v.

Singletary, 520 U.S. 518, 522-23, 117 S. Ct. 1517, 1522 (1997)

(quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546,

2553 (1991)), we must be satisfied with the state habeas court’s

determinations.

Notwithstanding, counsel’s decision not to argue a

presumption of insanity during the guilt/innocence phase was an

exercise of professional judgment consistent with Texas law and

counsel’s prior experience in the 1984 trial. Although Martinez

argues that his one-and-a-half-year commitment to a state mental

institution, from 1967 through 1968, raised a presumption of

insanity assertable at his 1989 trial, under Texas law, “an

adjudication of incompetency is based on one’s capacity at the time

of trial.” Hall v. State, 766 S.W.2d 903, 906 (Tex. Crim. App.

1989) (holding that a “a five-year gap between [the defendant’s]

breakdown and the trial with no further hospitalization . . . [does

not] constitute evidence tending to show incompetency”). Here,

19
there was a twenty-one year gap between Martinez’s 1968 release

from the state mental institution and his 1989 trial. In addition,

Martinez’s voluntary 1969 guilty plea to robbery wherein a court

found him legally sane, eviscerated any presumption that may have

arisen from his 1967 commitment. Even if an assertable presumption

did exist in 1989, as the state court found, it would not have been

difficult for the state to rebut the presumption given that the

1967 verdict was vitiated in 1968 by a subsequent jury

determination of sane. Moreover, the trial transcript indicates

that counsel did raise the presumption in the 1989 trial, and that

it was adequately rebutted. Finally, defense attorney Montgomery

argued the 1967 acquittal by reason of insanity at the 1984 trial

and received an adverse jury verdict within fifteen minutes. Hard

experience deterred repetition of this course of action in the 1989

trial. HR at 43, 106-107.

Second, counsel had no obligation to assert an insanity

defense that they deemed so meritless as to constitute a fraud on

the court and otherwise adverse to Martinez’s case. See Williams,

125 F.3d at 278 (rejecting claim of ineffective assistance where

counsel declined to introduce mitigating evidence that “would have

opened the door to more damaging evidence under

cross-examination”). Moreover, counsel was not required to assert

an insanity defense where, after proper investigation, counsel

determined that a more viable, and less fraudulent, defense was

available. Cf. Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th

20
Cir. 1987). Contrary to Martinez’s contentions, circuit precedent

requiring counsel to raise an insanity defense where it is the only

viable defense is acutely distinguishable on the facts, and, as

such, inapposite here.10

In Martinez’s case, potential defense theories included

failure of “the system” to intervene during Martinez’s troubled

youth and insanity. Counsel determined the former most viable and

the latter potentially fraudulent. Counsel’s assessment is

supported by the record. Psychological evaluations conducted in

1979, 1986, and 1988 concluded that Martinez did not suffer from

any psychological disorders.11 Although Martinez proffered expert

testimony in 2003 that his exposure to pesticides in utero and

through adolescence could have caused a brain disorder that

rendered him unable to control his impulses, his own expert

witness, Dr. Love, admitted that such a diagnoses would be no more

than post-hoc conjecture otherwise contradicted by Martinez’s

mental health history as it stood in 1989. See Love Dep. at 148-

258 (admitting that psychiatric diagnoses are not constant, that

10
Martinez’s reliance on Profitt is misplaced because that case is
distinguishable from the instant matter. In contrast to the facts in Profitt,
counsel in this case, explored the possibility of an insanity defense and ruled
it out after taking both obvious and non-obvious investigatory measures; provided
reasonable tactical bases for not investigating the issue further and declining
to assert an insanity defense; and raised other defenses that were not only
plausible, but also supported by Martinez’s mental health and criminal record.
See Profitt, 831 F.2d at 1248-49.
11
These evaluation were not admitted at trial but were included in the
trial “statement of facts” and considered as part of the trial record by the
state habeas court.

21
she would only diagnose Martinez as suffering from “periodic” and

“episodic” schizophrenia, and that she could not determine, without

allowing for a significant margin of error, Martinez’s mental

condition during his 1989 trial). Additionally, as previously

discussed, counsel had no basis in personal experience that

suggested the viability of an insanity defense based on Martinez’s

exposure to neurotoxins in the course of migrant farm work.

Moreover, as admitted by another of Martinez’s expert witnesses,

Dr. Freedman, nothing in the mainstream media put counsel on notice

of such a connection. See Freedman Dep. at 76-77 (conceding that

literature existing in 1989 supporting the theory of pesticide-

induced psychosis may have been known to the medical community, but

not to the public at large).

One of Martinez’s counsel, Ray Montgomery, submitted an

affidavit averring that: he had represented or prosecuted hundreds

of defendants who were, or claimed to be, mentally ill; in his

interactions with Martinez, over the course of several years,

Martinez never acted in a manner demonstrative of insanity or

incompetence; Martinez’s prison record and conduct were consistent

with his conclusion and that of other attorneys representing

Martinez, and Martinez’s own family members shared this view. See

SHTr. at 257 (Respondent’s Original Answer, Exhibit A, Aff. of Ray

Montgomery).

Based on the facts of Martinez’s case, his counsel

determined that assertion of an insanity defense would constitute

22
a fraud on the court. Therefore, counsel decided to forgo an

insanity defense in the guilt/innocence phase, and instead advanced

as the primary defense theory the “failure of the system” to

intervene during Martinez’s troubled youth. This mode of defense

was supported by Martinez’s criminal history and the abuse that he

purportedly suffered at the hands of detention facility personnel.

Under the facts as they existed at the time, counsel’s decision was

reasonable.

Third, counsel’s decision not to introduce evidence of

neurological impairment (i.e., organic brain damage) as mitigating

evidence at the punishment phase constituted reasonable and

protected professional judgment. As we have held, evidence of

organic brain injury presents a “double-edged” sword, and deference

is accorded to counsel’s informed decision to avert harm that may

befall the defendant by not submitting evidence of this nature.

Kitchen v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999). “If such an

omission is based on well informed, strategic decisions, it is

‘well within the range of practical choices not to be second-

guessed.’” Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997)

(quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.

1992)).

Under Texas law, a jury in a capital case must determine

“whether there is a probability that the Defendant would commit

criminal acts of violence that would constitute a continuing threat

to society.” TEX. CODE OF CRIM. PROC. ART. 37.071 § 2(b)(1) (Vernon

23
2004). During the punishment phase, the state introduced expert

testimony that a hypothetical person who committed the crimes with

which Martinez was charged would warrant a future dangerous

finding. The introduction of evidence that Martinez suffered from

organic (i.e., permanent) brain damage, which is associated with

poor impulse control and a violent propensity, would have

substantiated the state’s evidence and increased the likelihood of

a future dangerousness finding. In lieu of introducing this

potentially damaging evidence, counsel presented other mitigating

evidence during the punishment phase. On cross and direct

examination, counsel elicited testimonial evidence of Martinez’s

difficult childhood, his mother’s hospitalization for mental

illness, his own commission to a mental health institution, and his

benighted childhood during which he suffered medical neglect,

malnourishment, and abuse at the hands of family members and state

prison guards. Thus, counsel’s decision not to introduce evidence

of organic brain damage, given the availability of other, less

damaging, mitigating evidence, fell well within the bounds of sound

trial strategy.

Even if counsel’s strategies fell below professional

norms, they cannot form the basis of a constitutional ineffective

assistance of counsel claim because there is no evidence that they

prejudiced Martinez or “permeated [his] entire trial with obvious

unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir.),

cert. denied, Jones v. United States, 537 U.S. 1018, 123 S. Ct. 549

24
(2002). In assessing prejudice, we “must consider the totality of

the evidence before the judge or jury.” Strickland, 466 U.S. at

695, 104 S. Ct. at 2069. Here, the nature of the evidence against

Martinez advises against a prejudice finding.

In addition to mitigating evidence presented by the

defense, the jury also had before it evidence of Martinez’s

methodical planning and execution of the crime of conviction. The

state propounded evidence that Martinez and his accomplices “cased”

Chavis’s bar in preparation for the robbery. On July 11 and

July 12, 1983, Martinez and one accomplice entered the bar, ordered

a beer, drank very little, and left. Martinez and two accomplices

returned on July 13, 1983, and shot and killed Chavis in the

process of robbing the bar. The jury also had before it evidence

of Martinez’s subsequent violent and murderous 1983 crime spree,

and his numerous prior convictions for burglary, robbery, jail-

breaking, and theft. The evidence depicted a man capable of

planning and executing criminal acts and victimizing anyone who

would get in his way, which was more than sufficient to belie any

“tragic impulse” defense that Martinez could have asserted.

In sum, even if counsel had asserted the presumption and

defense of insanity and presented evidence of neurological

impairment in mitigation during Martinez’s trial, it is highly

improbable that the outcome would have been different. Id. at

694-95, 104 S. Ct. at 2068-69.

25
 CONCLUSION

As to his first COA claim, failure to investigate,

Martinez failed to demonstrate that jurists of reason would debate

the district court’s resolution of the issue. Therefore, we deny

a COA on this issue. As to the remaining COA claims, failure to

present an insanity defense and evidence of neurological impairment

during the guilt/innocence and punishment phases of Martinez’s

trial, we find that jurists of reason could debate the district

court’s resolution of these claims, and, thus, issue a COA as to

each claim. However, we conclude that Martinez has failed to show

that the state habeas court’s resolution of these claims resulted

in decisions that were contrary to, or involved an unreasonable

application of, clearly established federal law. Therefore, we

deny Martinez’s request for habeas relief.

COA GRANTED IN PART, DENIED IN PART. Habeas Relief

DENIED. Judgment of the district court is AFFIRMED.

26