Ramiro Gonzales v. William Stephens, Director , 606 F. App'x 767 ( 2015 )


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  •      Case: 14-70006      Document: 00513000966         Page: 1    Date Filed: 04/10/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-70006                       United States Court of Appeals
    Fifth Circuit
    FILED
    RAMIRO F. GONZALES,                                                         April 10, 2015
    Lyle W. Cayce
    Petitioner - Appellant                                            Clerk
    v.
    WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent - Appellee
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:10-CV-165
    Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Ramiro Gonzales seeks a certificate of appealability (“COA”) to appeal
    the district court’s denial of his federal habeas corpus petition, filed pursuant
    to 
    28 U.S.C. § 2254
    , challenging his state criminal conviction for capital murder
    and sentence of death. For the reasons that follow, we DENY his request.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-70006    Document: 00513000966     Page: 2   Date Filed: 04/10/2015
    No. 14-70006
    BACKGROUND
    The facts surrounding Gonzales’s underlying crime are not in dispute.
    On January 15, 2001, Gonzales went to the home of his drug supplier, hoping
    to steal cocaine. Only his supplier’s girlfriend, Bridget Townsend, was at the
    home, so he tied her up and stole what cash he could find, but did not find any
    drugs. He then carried the bound Townsend to his pickup truck, drove her out
    to the large ranch on which he lived, retrieved a hunting rifle, and marched
    Townsend out into the deserted brush. When he started loading the rifle,
    Townsend told Gonzales that she would give him money, drugs, or sex if he
    would spare her life.    In response, Gonzales unloaded the rifle and took
    Townsend back to his truck, where he had sex with her. After she dressed, he
    reloaded the rifle, walked her back into the brush, and shot her. He left her
    body where it fell. Gonzales eventually confessed to his crimes.
    At trial, a jury found Gonzales guilty of capital murder as charged.
    During the punishment phase, the prosecution called various witnesses in an
    effort to show that Gonzales did not feel remorse for his crime, had a history of
    bad conduct, did not suffer from mental illnesses, and would likely continue to
    be violent in prison. Among other witnesses, the prosecution called a woman
    whom Gonzales had abducted at knifepoint, brutally raped, and locked in a
    closet on the same ranch where he had earlier killed Townsend. It was while
    he was in custody for those crimes that Gonzales confessed to having murdered
    Townsend.     The prosecution also called Dr. Edward Gripon, a forensic
    psychiatrist, who testified that there was a serious risk Gonzales would
    continue to commit acts of violence in the prison setting.          Dr. Gripon
    acknowledged that predictions of future dangerousness were highly
    controversial and that the American Psychiatric Association had taken the
    position that such predictions are unscientific and unreliable, but maintained
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    that forensic psychiatrists as a whole believed that they were qualified to make
    such predictions.
    The defense called a number of witnesses during the punishment phase
    as well, focusing primarily on Gonzales’s family history and upbringing.
    Various witnesses testified that Gonzales was effectively abandoned by his
    mother and was left on a large ranch to be raised by his maternal
    grandparents, who often provided inadequate or no supervision throughout his
    childhood. Several of Gonzales’s relatives testified that Gonzales’s mother
    frequently drank alcohol, huffed spray paint, and abused drugs throughout her
    pregnancy and twice attempted to abort Gonzales. Numerous witnesses also
    detailed the physical and sexual abuse that Gonzales suffered throughout his
    childhood, including being kicked by his mother’s boyfriend, being sexually
    abused by an older male cousin, and having a sexual relationship with an
    eighteen-year-old woman when he was twelve or fourteen years old.
    The defense also called Dr. Daneen Milam, a neuropsychologist and sex
    offender treatment provider, to testify as to Gonzales’s mental health. Dr.
    Milam explained that she had conducted a ten-hour neuropsychological
    examination of Gonzales; reviewed “literally stacks of records,” including
    school records, probation records, and incident reports; went to the ranch on
    which Gonzales grew up, where she spoke with his grandparents, his cousin,
    and the ranch manager; and reviewed all of the interviews conducted by the
    defense team’s mitigation investigator. Dr. Milam testified that from her
    evaluation, she found no evidence of brain damage, “none whatsoever.” She
    said that Gonzales’s IQ and brain were within normal limits, in spite of all of
    his and his mother’s drug use. Dr. Milam stated that educational records
    indicated Gonzales was developmentally delayed but that he started off with a
    normal brain. She opined that Gonzales “basically raised himself,” which led
    him to have the emotional maturity of someone who is thirteen or fourteen
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    years old. Dr. Milam also testified that some of the tests she attempted to
    conduct on Gonzales were invalid because he clearly tried to come across as
    mentally ill. She was able to conclude, however, that while Gonzales exhibited
    some schizotypal and antisocial personality features, his primary diagnosis
    was “reactive attachment disorder.”           Dr. Milam explained that reactive
    attachment disorder is due entirely to environmental factors wherein a young
    child was not able to form a stable, emotional bond with any adult and leads
    to being immature, insecure, solitary, and manipulative later in life.             Dr.
    Milam next discussed Gonzales’s mother’s drug use while pregnant with
    Gonzales and the abuse Gonzales suffered as a child. Dr. Milam testified that
    Gonzales was probably in the top 10% of emotionally damaged children and
    now likely could be diagnosed with antisocial personality disorder, but stated
    that Gonzales was not mentally ill, had a normal IQ, and was not mentally
    retarded.
    In their closing argument during the punishment phase, defense counsel
    focused on the evidence that Gonzales essentially raised himself; was exposed
    to alcohol, marijuana, and paint fumes in utero; was sexually abused by a
    cousin starting at the age of four or six; started drinking and doing drugs at
    eleven; was sexually abused by an older woman at twelve or thirteen; and was
    sentenced to life in prison at just eighteen 1. In its rebuttal argument, the
    prosecution referenced Dr. Gripon’s testimony as to future dangerousness and
    suggested that Gonzales’s mother’s use of drugs while pregnant with Gonzales
    was meaningless because there was no evidence that it affected him.
    1  After murdering Townsend but before being charged with the murder, Gonzales
    kidnapped and raped another woman. He was sentenced to life in prison for his crimes
    against the second woman and confessed to having murdered Townsend while he was serving
    that sentence.
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    The jury unanimously made the findings required for capital
    punishment in Texas, and the judge entered a sentence of death. On direct
    appeal, Gonzales argued that the prosecution’s expert should not have been
    permitted to give an opinion as to future dangerousness. Gonzales did not
    argue that trial counsel should have called more expert witnesses. The Texas
    Court of Criminal Appeals (“CCA”) affirmed the conviction and sentence,
    Gonzales v. State, No. AP-75540, 
    2009 WL 1684699
    , at *1-3 (Tex. Crim. App.
    June 17, 2009), and the United States Supreme Court denied certiorari,
    Gonzales v. Texas, 
    559 U.S. 942
     (2010).
    In his first state habeas corpus application, Gonzales filed an eight-page
    petition raising four claims, none of which is now before this Court. The CCA
    denied relief. Ex parte Gonzales, No. WR-70969-01, 
    2009 WL 3042409
    , at *1
    (Tex. Crim. App. Sept. 23, 2009). Gonzales next filed a federal habeas petition,
    but soon obtained a stay and abeyance so that he might first exhaust additional
    claims in state court. In his second state habeas petition, Gonzales raised six
    issues, including that his trial counsel were ineffective for failing to obtain
    experts to present mitigating evidence that Gonzales suffered from Fetal
    Alcohol Spectrum Disorder (“FASD”) and the effects of “sexual, emotional,
    physical, and biological abuse,” as well as that the trial court erred in allowing
    expert testimony as to Gonzales’s future dangerousness. The CCA dismissed
    the petition as an abuse of the writ and dismissed a motion for funding of
    expert assistance. Ex parte Gonzales, No. WR-70969-01, 
    2012 WL 340407
    , at
    *1 (Tex. Crim. App. Feb. 1, 2012).
    Gonzales then filed an amended federal habeas petition in district court,
    raising nine numbered claims. The district court denied all claims and denied
    a COA. The district court determined that Gonzales’s ineffective assistance of
    counsel claims were procedurally defaulted, but also concluded that they would
    fail on the merits.
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    STANDARD OF REVIEW
    In a habeas corpus appeal, this Court “review[s] the district court’s
    findings of fact for clear error and its conclusions of law de novo, applying the
    same standards to the state court’s decision as did the district court.” Lewis v.
    Thaler, 
    701 F.3d 783
    , 787 (5th Cir. 2012) (quoting Busby v. Dretke, 
    359 F.3d 708
    , 713 (5th Cir. 2004)).     Gonzales is entitled to a COA if he makes “a
    substantial showing of the denial of a constitutional right.”           
    28 U.S.C. § 2253
    (c)(2); Miller-El v. Cockrell, 
    537 U.S. 322
    , 327 (2003). If the district court
    denies constitutional claims on the merits, “[t]he petitioner must demonstrate
    that reasonable jurists would find the district court’s assessment of the
    constitutional claims debatable or wrong” or “that the issues presented were
    adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
    
    529 U.S. 473
    , 484 (2000) (internal quotation marks omitted).            “When the
    district court denies a habeas petition on procedural grounds without reaching
    the prisoner’s underlying constitutional claim, a COA should issue when the
    prisoner shows, at least, that jurists of reason would find it debatable whether
    the petition states a valid claim of the denial of a constitutional right and that
    jurists of reason would find it debatable whether the district court was correct
    in its procedural ruling.” 
    Id.
     “Each component . . . is part of a threshold
    inquiry, and a court may find that it can dispose of the application in a fair and
    prompt manner if it proceeds first to resolve the issue whose answer is more
    apparent from the record and arguments.” 
    Id. at 485
    . “[A]ny doubt as to
    whether a COA should issue in a death-penalty case must be resolved in favor
    of the petitioner.” Pippin v. Dretke, 
    434 F.3d 782
    , 787 (5th Cir. 2005).
    DISCUSSION
    I.     Ineffective Assistance of Counsel
    Gonzales argues that his trial counsel were ineffective for failing to
    obtain proper experts to present mitigation evidence of FASD and of sexual,
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    emotional, physical, and biological abuse. 2 Gonzales raised his ineffective
    assistance of trial counsel claims for the first time in his second state habeas
    petition and the CCA denied them as an abuse of the writ under Article 11.071
    of the Texas Code of Criminal Procedure. We have consistently held that the
    Texas abuse-of-the-writ statute is a valid state-law procedural ground that
    forecloses federal habeas review where, as here, there is no indication that the
    CCA’s order relied on federal law in dismissing the petition. See McGowen v.
    Thaler, 
    675 F.3d 482
    , 499 (5th Cir. 2012); Coleman v. Quarterman, 
    456 F.3d 537
    , 542 (5th Cir. 2006).        Even so, the Supreme Court has held that “a
    procedural default will not bar a federal habeas court from hearing a
    substantial claim of ineffective assistance at trial if, in the initial-review
    collateral proceeding, there was no counsel or counsel in that proceeding was
    ineffective.” Martinez v. Ryan, 
    132 S. Ct. 1309
    , 1320 (2012). The Supreme
    Court later made clear that this rule applies to habeas petitions stemming from
    Texas-court convictions. Trevino v. Thaler, 
    133 S. Ct. 1911
    , 1921 (2013).
    Applying Martinez in the COA context, this Court has said that “to
    succeed in establishing cause, the petitioner must show (1) that his claim of
    ineffective assistance of counsel at trial is substantial—i.e., has some merit—
    and (2) that habeas counsel was ineffective in failing to present those claims
    in his first state habeas proceeding.” Garza v. Stephens, 
    738 F.3d 669
    , 676 (5th
    Cir. 2013) (citing Martinez, 
    132 S. Ct. at 1318
    ). As discussed below, Gonzales
    has failed to raise a substantial claim of ineffective assistance of trial counsel
    and therefore cannot show that his procedural default is excused.
    2In his application for a COA before the district court, Gonzales also stated that he
    was denied effective assistance of trial counsel when his trial counsel provided the
    prosecution with unspecified “privileged work product.” This argument is not included in
    Gonzales’s brief on appeal and is therefore abandoned. See United States v. Olano, 
    507 U.S. 725
    , 731 (1993).
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    As set out in Strickland v. Washington, 
    466 U.S. 668
     (1984), a petitioner
    establishes ineffective assistance of counsel if he can show that his counsel’s
    performance was “deficient,” meaning that counsel’s “representation fell below
    an objective standard of reasonableness,” and that counsel’s “deficient
    performance prejudiced the defense.” 
    Id. at 687-88
    . “[S]trategic choices made
    after thorough investigation of law and facts relevant to plausible options are
    virtually unchallengeable; and strategic choices made after less than complete
    investigation are reasonable precisely to the extent that reasonable
    professional judgments support the limitations on investigation.” 
    Id.
     at 690-
    91. There is no strategic decision with respect to sentencing strategy, however,
    where counsel choose to abandon their investigation at an unreasonable
    juncture. See Wiggins v. Smith, 
    539 U.S. 510
    , 527-28 (2003). “In investigating
    potential mitigating evidence, counsel must either (1) undertake a reasonable
    investigation or (2) make an informed strategic decision that investigation is
    unnecessary.” Charles v. Stephens, 
    736 F.3d 380
    , 389 (5th Cir. 2013) (per
    curiam).    “[U]nder a Strickland analysis, trial counsel must not ignore
    pertinent avenues of investigation, or even a single, particularly promising
    investigation lead.”   
    Id. at 390
     (internal quotation marks and citations
    omitted).
    There is no evidence suggesting that Gonzales’s trial counsel conducted
    less than a reasonable investigation. The record makes clear that Gonzales’s
    trial counsel obtained the services of a mitigation specialist, an investigator, a
    neuropsychologist, and a prison expert.          These experts and specialists
    conducted numerous interviews with Gonzales, his family members and
    acquaintances, performed psychological evaluations, and reviewed substantial
    records, such as school, probation, police, and jail records. The defense team
    conferred with each other and coordinated their findings. The evidence that
    Gonzales suffered emotional, physical, and sexual abuse, as well as that his
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    mother drank alcohol and used drugs while pregnant with him, was
    extensively presented to the jury by both lay and expert witnesses.
    1.    FASD
    As regards FASD specifically, defense counsel presented substantial
    evidence at trial that Gonzales’s mother abused alcohol, marijuana, and
    inhalants while pregnant with Gonzales, which was known to trial counsel and
    Dr. Milam, the neuropsychologist that defense counsel secured. Nevertheless,
    based on her evaluation of Gonzales and her extensive record review, Dr.
    Milam concluded that “[t]here was no brain damage; none whatsoever,” that
    Gonzales started out with a normal brain despite school records showing that
    he was developmentally delayed, and that “[h]is IQ is within normal limits; his
    brain is within normal limits, in spite of all the drugs.” Now, Gonzales argues
    that his trial counsel were ineffective because the tests that Dr. Milam
    conducted were “suboptimal” and the scope of her inquiry was “less than
    adequate,” and therefore counsel should have secured an FASD expert.
    Gonzales’s habeas counsel obtained an FASD expert who preliminarily
    concluded that “FASD should be HIGHLY SUSPECTED and that a thorough
    diagnostic evaluation to address this should be undertaken.” Importantly,
    Gonzales does not present evidence that he actually suffers from FASD.
    Instead, he presents an expert declaration concluding that “there is basis for
    further evaluation to determine definitively whether FASD is present or not”
    and argues that several additional tests should be conducted. The district and
    state courts denied Gonzales’s various requests for funding to have those
    additional tests run, and so Gonzales is left only with an affidavit indicating
    that he may have FASD.
    “To prevail on an ineffective assistance claim based upon uncalled
    witnesses, an applicant must name the witness, demonstrate that the witness
    would have testified, set out the content of the witness’s proposed testimony,
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    and show that the testimony would have been favorable.” Gregory v. Thaler,
    
    601 F.3d 347
    , 352 (5th Cir. 2010).       A petitioner “who alleges a failure to
    investigate on the part of his counsel must allege with specificity what the
    investigation would have revealed and how it would have altered the outcome
    of the trial.”   
    Id.
     (quotation marks and citation omitted).       Since there is
    insufficient persuasive evidence that Gonzales actually suffers from FASD, his
    argument is that he has made a substantial showing of ineffective assistance
    of trial counsel because his trial attorneys did not seek out an expert who would
    have testified that Gonzales may have FASD. Inconclusive new evidence that
    a petitioner may or may not suffer from some sort of cognitive dysfunction does
    not generally establish an ineffective assistance of counsel claim. See Smith v.
    Quarterman, 
    515 F.3d 392
    , 405 (5th Cir. 2008).
    Trial counsel chose to offer the testimony of a qualified neuropsychologist
    who, after extensive testing, concluded that Gonzales had no brain damage but
    exhibited some schizotypal and antisocial personality features and suffered
    from reactive attachment disorder. There is no evidence that trial counsel’s
    reliance on Dr. Milam was unreasonable. See Harrington v. Richter, 
    562 U.S. 86
    , 107 (2011) (“Counsel was entitled to formulate a strategy that was
    reasonable at the time and to balance limited resources in accord with effective
    trial tactics and strategies.”); Couch v. Booker, 
    632 F.3d 241
    , 246 (6th Cir. 2011)
    (“Trial counsel may rely on an expert’s opinion on a matter within his expertise
    when counsel is formulating a trial strategy.”). Gonzales has not made a
    substantial showing that his counsel were ineffective for failing to secure an
    FASD expert.
    2.     Abuse
    Gonzales next claims that his trial counsel were ineffective for failing to
    secure an abuse expert. He states that “[n]o expert addressed the synergy of
    the effects of [his] sexual victimization, emotional and physical abuse, neglect
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    and rejection by his mother and caregivers, exposure to alcohol and other drugs
    in utero, and his own substance abuse problem with the fact that he was only
    72 days past his 18th birthday at the time of the offense in this case.” Gonzales
    does not identify an expert that trial counsel should have called or specify
    precisely how such an expert’s testimony would have differed substantially
    from that provided by Dr. Milam at trial.       Gonzales’s claim of ineffective
    assistance of trial counsel for failure to call a particular witness requires a
    showing of what that witness would have testified to if called. See Gregory,
    
    601 F.3d at 352-53
    . Gonzales has made no such showing.
    Additionally, Gonzales does not argue that the jury did not hear about
    his “sexual, emotional, physical, biological abuse,” instead claiming that trial
    counsel should have called an expert to inform the jury “how the presence of
    all of these issues impacted” Gonzales.       Counsel did call an expert—Dr.
    Milam—to explain the cumulative effect of the abuse and neglect that Gonzales
    suffered throughout his life. Trial counsel explained to the jury that “[a]t the
    very end of [the testimony of the defense’s] witnesses it will all be wrapped up
    together and tied together by an expert in the field of psychology.”          As
    promised, after eliciting first-hand testimony about Gonzales’s deeply troubled
    upbringing, trial counsel called Dr. Milam to give her expert opinion as to the
    psychological consequences of the neglect, abuse, and drug use on Gonzales.
    Dr. Milam testified that Gonzales (a) basically raised himself; (b) was
    developmentally delayed; (c) is immature; (d) is paranoid; (e) suffers from
    reactive attachment disorder; (f) has antisocial personality features; (g) has
    schizotypal personality features; (h) abused drugs from a young age; and (i)
    was probably in the top 10% of emotionally damaged children. Dr. Milam
    testified that many, if not all, of these issues were connected with his mother’s
    use of drugs while pregnant, his severely neglected childhood, and the
    pervasive emotional, physical, and sexual abuse he suffered throughout his
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    childhood. Beyond Dr. Milam’s extensive testimony, additional testimony by
    an abuse expert would most likely have been cumulative, and Gonzales does
    not show otherwise. See Coble v. Quarterman, 
    496 F.3d 430
    , 436 (5th Cir.
    2007) (“Counsel’s decision not to present cumulative testimony does not
    constitute ineffective assistance.”). Accordingly, Gonzales has not presented a
    substantial claim that his trial counsel were constitutionally ineffective. As a
    result, Gonzales’s state habeas attorney was not ineffective for failing to argue
    ineffective assistance of trial counsel, and Gonzales therefore cannot overcome
    the procedural default of his ineffective assistance of trial counsel claim. See
    Garza, 738 F.3d at 676.
    II.    Testimony as to Future Dangerousness
    Gonzales maintains that he is also entitled to a COA because the district
    court improperly permitted the prosecution to present expert witness
    testimony from Dr. Gripon as to future dangerousness during the mitigation
    phase of his trial. Gonzales argues that the State failed to establish that Dr.
    Gripon’s testimony was sufficiently reliable to be admissible as required by
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993). 3 Gonzales
    properly raised his Daubert claim before the CCA on direct appeal and the CCA
    rejected the claim on the merits. Due to binding precedent, Gonzales cannot
    show that jurists of reason would debate whether the state court’s denial of his
    claim was unreasonable.
    In Barefoot v. Estelle, 
    463 U.S. 880
     (1983), the Supreme Court held that
    psychiatric testimony predicting a capital defendant’s future dangerousness is
    not per se improper. 
    Id. at 898-99
    . Gonzales’s arguments to the contrary
    notwithstanding, our court has consistently held that Daubert did not overrule
    3Although the State discerned five separate points of error raised by Gonzales as to
    expert testimony regarding future dangerousness, all of Gonzales’s arguments focus
    exclusively on the reliability of Dr. Gripon’s future dangerousness testimony under Daubert.
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    Barefoot for the proposition that expert testimony regarding future
    dangerousness is permissible. See, e.g., Williams v. Stephens, 
    761 F.3d 561
    ,
    571 (5th Cir. 2014) (maintaining that expert future dangerousness testimony
    is permissible under Barefoot and stating that petitioner’s “contention that the
    Supreme Court may overrule Barefoot in light of Daubert is completely
    speculative”); Roberts v. Thaler, 
    681 F.3d 597
    , 608-09 (5th Cir. 2012) (“Barefoot
    stands for the proposition that expert testimony predicting a defendant’s
    future dangerousness is not per se inadmissible.”); Flores v. Johnson, 
    210 F.3d 456
    , 456 n.1 (5th Cir. 2000) (per curiam). Because expert evidence predicting
    a capital defendant’s future dangerousness is permissible under Barefoot,
    jurists of reason would not debate whether the CCA reasonably determined
    that Dr. Gripon’s testimony was properly allowed.
    CONCLUSION
    For the foregoing reasons, Gonzales has not made the showing required
    to obtain a COA and his motion for a COA is therefore DENIED.
    13