Amador v. Quarterman ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 29, 2006
IN THE UNITED STATES COURT OF APPEALS August 1, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-70026
JOHN JOE AMADOR
Petitioner - Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas, San Antonio
No. 5:02-CV-230
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
KING, Circuit Judge:
In this capital murder case, petitioner John Joe Amador
appeals the district court’s dismissal of his petition for writ
of habeas corpus under 28 U.S.C. § 2254 on two of his claims that
he was denied effective assistance of counsel in violation of his
Sixth Amendment rights during the direct appeal of his conviction
before the Texas Court of Criminal Appeals. For the following
reasons, we AFFIRM the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Criminal Proceedings
1. The Crime and Aftermath
a. The Crime
During the early morning of January 4, 1994, taxicab driver
Reza “Ray” Ayari stopped to pick up his friend Esther Garza, who
occasionally accompanied Ayari during his shifts. Garza had been
drinking heavily that night and had sought Ayari’s company
because she was upset over a fight she had recently had with her
boyfriend. According to Garza’s testimony, between 3:00 a.m. and
3:30 a.m., Ayari stopped on the west side of San Antonio, Texas,
to pick up two passengers, later identified as eighteen-year-old
John Joe Amador and his sixteen-year-old cousin Sara Rivas.
Amador asked Ayari to take them to Poteet, Texas, a town
approximately thirty minutes southwest of San Antonio. Ayari
replied that he would need twenty dollars in advance. Amador
indicated that he did not have twenty dollars, but directed Ayari
to a house where he could obtain the money. The house was later
identified as that of Amador’s girlfriend, Yvonne Martinez. The
cab stopped at Martinez’s house, Amador returned with the money,
and the four occupants--Ayari in the driver’s seat, Garza in the
front passenger seat, Amador in the seat behind Ayari, and Rivas
in the seat behind Garza--proceeded to Poteet.
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Garza testified that when they reached rural Bexar County,
the passengers directed Ayari to stop in front of a house with a
long driveway. As Ayari drove toward the house, he was shot in
the back of the head without warning. Garza was shot immediately
thereafter. Garza, who was still alive despite sustaining a
gunshot wound to the left side of her face, later testified that
she feigned death as Amador and Rivas pulled Ayari and Garza out
of the car, searched Garza’s pockets, and drove off down the
driveway, damaging the cab in the process. When police arrived
at the scene of the shootings, they found Ayari dead. Garza was
bleeding from the head and face, hysterical, and unable to speak
coherently. She was eventually able to tell the officers at the
scene that one of the suspects was male, that she had never seen
him before, and that he was 6’1”, possibly of Arabic ethnicity,
and had short black hair.1 Officers found .380 and .25 caliber
shell casings at the scene, and a .25 caliber bullet was removed
from Garza’s nasal cavity that night at the hospital. The cab
was eventually found abandoned in a median in the outskirts of
San Antonio, and a woman named Esther Menchaca later testified
that she had observed two people who resembled Amador and Rivas
walking away from the cab in the median as she drove to work in
the early morning of January 4.
1
It is undisputed that John Joe Amador is 5’6” and
Hispanic.
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b. The Investigation
On January 10, 1994, after Garza had been released from the
hospital, she gave the Bexar County Sheriff’s Office a
description of the suspect to aid in creating a composite sketch.
Garza also spoke with lead investigator Detective Robert Morales
and gave a written statement, which reaffirmed the description
she had given at the scene, although she described the suspect as
Hispanic rather than Arabic as she had originally stated.
On January 24, 1994, acting on an anonymous “Crime Stoppers”
tip, a Bexar County Sheriff’s Deputy picked up Amador and his
girlfriend Yvonne Martinez from a San Antonio school and took
them to the sheriff’s department for questioning. Both denied
any knowledge of or involvement in the shootings. Officers also
took their pictures and prepared photo arrays to present to
Garza, the only eyewitness to the crime. While Amador and
Martinez were still being questioned, Detective Morales drove
Garza to the sheriff’s department. Garza testified at a pretrial
hearing that Detective Morales showed her the photo array
containing Martinez’s picture while they were in the car en route
to the sheriff’s department.2 While Garza did not identify any
2
The trial transcript reveals a number of discrepancies in
the testimony of various witnesses regarding the dates that Garza
was shown photo arrays, how many photo arrays she was shown, and
whether the suspects’ photos were included in each photo array
that she viewed. However, it is undisputed that Garza was unable
to identify Amador from a photo array or otherwise prior to March
30, 1994.
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of the women in the photo array as a suspect, she did identify
Martinez as someone she knew from work and stated that Martinez
was definitely not the woman in Ayari’s cab the night of the
shootings. When Garza arrived at the sheriff’s department, the
officers showed her a second photo array, this time containing
pictures of Hispanic males.3 Garza was unable to identify any of
the men as a suspect. The officers then took her on a “show up”
to view Amador and Martinez, instructing her to look through
holes that had been cut in a piece of cardboard that was taped
against the window of the homicide office where Amador, Martinez,
and a sheriff’s deputy were sitting. Garza once again identified
Martinez as a former co-worker and confirmed that she had not
been in the cab on the night of the shootings. However, she was
unable to identify Amador as the male passenger in the car on the
night of the shootings, telling the officers that she did not
know whether he was the shooter and that “I’m just not up to that
right now.”
The following day, the officers asked Garza if she would
consent to be hypnotized in an effort to enhance her memory and
3
It is also unclear from the record whether this photo
array contained a picture of Amador. The district court noted
that Sergeant Sal Marin testified that, to his personal
knowledge, no photo arrays prior to March 30, 1994, contained a
photo of Amador. See Dist. Ct. Order n.27. However, the record
reflects that Detective Morales handled most of the photo arrays,
and it is unclear from his testimony and from the rest of the
record which photo arrays contained photos of Amador and which
did not.
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make her more confident in her identification. Garza agreed, and
on February 3, 1994, she underwent hypnosis performed by Brian
Price, a Bexar County Adult Probation Officer who had training as
an investigative hypnotist. During the session, she confirmed
her description of the suspect as a 6’1” Hispanic male. Based on
her description, a sketch artist rendered another composite
drawing of the suspect.
On March 16, 1994, Garza called Detective Morales and
informed him that a friend had told her that the two people who
had done the shootings were named John Joe Amador and Sara Rivas.
She subsequently revealed that the source of this information
knew Martinez, whom the source had overheard talking about the
crime and whom Garza had previously recognized as a former co-
worker when Martinez was sitting with Amador during the show up
in the Bexar County Sheriff’s Office. On March 30, 1994, the
officers again showed Garza a photo array, and this time Garza
was able to identify Amador as the male suspect in the cab on the
night of the shootings. The picture of Amador contained in the
photo array was taken the same day that Garza had observed him
with Martinez during the show up, and in the picture he was
wearing the same black shirt. She was unable to identify Rivas
from another photo array.
An arrest warrant was issued for Amador, who had since gone
to California. An officer arrested Amador and brought him back
to Texas; Rivas was also arrested. On April 13, 1994, Rivas gave
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a written statement to Detective Morales. Rivas alleged in her
statement that Amador had shot and killed Ayari and that, at
Amador’s instruction, she had shot Garza with a gun that Amador
had given her.4 Later that day, Sergeant Sal Marin told Amador
that Rivas had confessed to shooting someone at Amador’s
direction. Amador then gave a written statement to Sergeant
Marin which, while inculpatory, spoke in hypothetical terms.5
4
Rivas’s statement was not admitted into evidence at
Amador’s criminal trial, but it was admitted during the pretrial
evidentiary hearing concerning Amador’s motion to suppress.
5
A partially redacted version of Amador’s statement was
admitted into evidence at trial and read in open court. Trial
Tr., Vol. XIX, pp. 167-69.
The portion of Amador’s statement read into the record at
trial is as follows:
My name is John Joe Amador. I am 18 years old and I live
at 3907 Eldridge Street in San Antonio, Texas. I have
told Sergeant Marin that I am going to tell him about the
murder of the taxicab driver and the shooting of a young
girl.
I am going to tell my side of the story the way I want it
to come out. I don’t need no attorney or anything for
this. Sergeant Marin has read me my rights and I
understand my rights.
During the early part of January 1994, I don’t remember
the date other than it was sometime shortly after New
Year’s Day, this is when this mess all started. It was
during the night. I don’t remember what time it was, but
I do know it was late.
They say I shot and killed a taxicab driver and my cousin
Sara Rivas shot a young woman in the face. If this is
true, Sara would have shot the young woman because I
would have ordered her to do it. Sara is my cousin and
she is not that type of a person. She is from Houston
and was visiting here in San Antonio when all of this
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The next day, April 14, 1994, Amador contacted Sergeant
Marin to inquire whether his cousin was all right. After
assuring Amador that Rivas was fine, Sergeant Marin asked Amador
to accompany him to the scene of the crime and help him locate
the guns used in the shooting. Amador agreed to do so, but the
weapons were never found. While at the scene, Amador mentioned
that if he had committed the crime, he would have used .25 and
.380 caliber handguns.
c. Pretrial Hearing on Amador’s Motion to Suppress
Prior to trial, Amador filed numerous written motions to
suppress much of the prosecution’s evidence, including, inter
alia, objections to the admissibility of the statement that he
made regarding the caliber of the guns used in the shooting and
to the in-court identification of him by any witness. From May
22-24, 1995, the court held a pretrial hearing, which included
the presentation of evidence and arguments concerning Amador’s
motions.
shit happened. She wanted to visit her grandma who lives
near Poteet, Texas, but she never made it over there.
In this situation I would have handed her a gun and I
would have ordered her to shoot the woman with that gun.
If all of this stuff about the murder is true and they
can prove it in court, then I will take my death
sentence.
This is all I want to say. I don’t want to say any more.
I will just wait for my day in court.
Id.
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i. Amador’s Oral Statement Identifying the
Caliber of the Guns Used in the Crime
At the time of Amador’s trial, Article 38.22, section 3 of
the Texas Code of Criminal Procedure barred the use of statements
by an accused resulting from a custodial interrogation at trial
unless an exception applied. At the pretrial hearing, Sergeant
Marin and Amador testified about their visit to the crime scene
to search for the weapons. The trial court ultimately ruled that
Amador’s statement was admissible under Article 38.22, section 3
of the Texas Code of Criminal Procedure, which provided, in
pertinent part:
(a) No oral . . . statement of an accused made as a
result of custodial interrogation shall be admissible
against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include
motion picture, video tape, or other visual
recording, is made of the statement; . . .
(c) Subsection (a) of this section shall not apply to any
statement which contains assertions of facts or
circumstances that are found to be true and which conduce
to establish the guilt of the accused, such as the
finding of secreted or stolen property or the instrument
with which he states the offense was committed.
TEX. CRIM. PROC. CODE ANN. art. 38.22(3)(c) (Vernon Supp. 1994).
Over Amador’s objections, the trial court determined that
Amador’s statement was admissible under this statute because,
although the statement was not recorded, “Sergeant Marin
indicated that subsequently they did determine that statement to
be true and it conduces to show his guilt of the offense.” Trial
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Tr., Vol. V, pp. 153-54.
ii. Garza’s In-Court Identification of Amador
Amador also argued that any in-court identification made by
Garza was inadmissible because the out-of-court identification
procedures had been unnecessary and suggestive in violation of
Amador’s due process rights. At the evidentiary hearing on May
22, 1995, Garza testified to the events leading up to the
shooting, the out-of-court identification procedures that the
Bexar County Sheriff’s Department employed, the phone call from
her friend who told her the names of the shooters, and her
eventual identification of Amador.6 See Trial Tr., Vol. III, pp.
6-75.
The two investigating officers, Detective Morales and
Sergeant Marin, also testified at the hearing, describing their
investigation, their interactions with Garza, Garza’s initial
hesitance to identify Amador, the hypnosis session, and the
identification procedures that they employed, including the show
up and the various photo arrays.7 See id., Vol. IV, pp. 7-109,
166-254.
After the presentation of the evidence and the arguments,
6
Garza’s eventual testimony at trial largely mirrored the
contents of her pretrial testimony, although a hearsay objection
at trial prevented the jury from hearing that Garza had initially
learned Amador’s name from a friend.
7
Likewise, the officers’ testimony at trial was
substantially similar to their pretrial testimony.
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Amador again moved to suppress any in-court identification
testimony from Garza, and, after considering the evidence
presented at the hearing and watching a videotape recording of
Garza’s hypnosis session, the court denied this motion.
2. Trial, Conviction, and Sentencing
On June 30, 1995, a Bexar County grand jury returned an
indictment against Amador on a charge of capital murder. Amador
entered a plea of not guilty. The guilt-innocence phase of his
jury trial began on July 5, 1995.
a. Evidence Adduced at Trial
i. Amador’s Oral Statement Identifying the
Caliber of the Guns Used in the Crime
At the guilt-innocence phase of the trial, Sergeant Marin
testified to Amador’s statement during the prosecution’s case-in-
chief, and Amador’s counsel objected once more, this time on
hearsay grounds. The court overruled this objection and allowed
Sergeant Marin to testify that Amador had identified the guns
used in the shootings as .25 and .380 caliber weapons. Sergeant
Marin also testified that the sheriff’s department had publicly
identified one of the weapons as a .380 caliber handgun in a
press release dated January 4, 1994. Trial Tr., Vol. XIX, p.
189. The jury also heard testimony from Bexar County Sheriff’s
Department Detective Adrian Ramirez that on the morning of the
shootings, officers had found a spent .25 caliber shell casing
inside the abandoned taxicab. Id. Vol. XIX, p. 4. An officer
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who was present at the crime scene, Daniel Sanchez, testified
that he found a .380 caliber shell casing at the scene on the
morning of the shootings. Id. Vol. XVIII, p. 257.
ii. Garza’s In-Court Identification of Amador
The prosecution also presented eyewitness testimony from
Garza, who identified Amador in court. In addition to describing
the events leading up to the January 4, 1994, shooting, Garza
testified that: (1) she had been “drinking all day” before Ayari
picked her up the night of the shootings, and she had consumed
approximately fourteen to fifteen beers and one wine cooler; (2)
when Ayari stopped to pick up Amador and Rivas, she was still
“intoxicated,” “drunk,” and “wasted,” had been crying about a
fight she had had with her boyfriend, and “wasn’t really paying
attention to anything”; (3) she was able to view Amador briefly
that night when he walked in front of the cab’s headlights to get
money from Martinez’s house and when he was in the back seat
talking to her and Ayari; (4) on January 10, 1994, she gave a
statement describing the suspect to aid the sheriff’s department
in creating a composite sketch and initially believed that the
suspect was 6’1”;8 (5) she had never seen Amador before the night
of the shootings; (6) on January 24, 1994, she was taken to the
8
Garza explained that, when she saw him at the sheriff’s
department, Amador looked different from the individual she had
observed on the night of the shootings because he had shorter
hair and was not as tall as she had remembered from her “slouched
down” vantage point in the cab.
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sheriff’s department and instructed to view two people later
identified as Amador and Martinez through holes cut into a piece
of cardboard; (7) during this show up, she recognized Martinez as
a former co-worker but “couldn’t say” that she recognized Amador;
(8) on that same day, before the show up, Detective Morales
showed her a photo array of Hispanic males and a photo array of
Hispanic females, but she could not identify any of them as
suspects;9 (9) on February 3, 1994, she submitted to a hypnosis
session, no one during the session suggested to her the identity
of her assailant, and afterwards she assisted in creating another
composite sketch; (10) on March 30, 1994, Sergeant Marin showed
her a photo array and she identified Amador from that array; and
(11) she was never able to identify Rivas from a photo array or
otherwise. Id. Vol. XVIII, pp. 93-252. A hearsay objection
prevented Garza from testifying to the March 16, 1994, phone call
from her friend who told her that he had heard that Amador and
Rivas were involved in the shootings. Id. Vol. XVIII, p. 148.
Sergeant Marin and Detective Morales both testified
regarding the procedures that they used that led to Garza’s
positive identification of Amador. Sergeant Marin told the jury
that: (1) he picked up Amador and Martinez on January 24, 1994,
after receiving a “Crime Stoppers” tip implicating them in the
shooting of Ayari; (2) on that day, the officers conducted a show
9
She testified that on that day she did, however, identify
Martinez as someone she knew from work.
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up at the homicide office where they had Garza look at Amador and
Martinez through eye holes that were cut into a piece of
cardboard; (3) using a cardboard apparatus of this sort was not a
“normal” procedure; (4) the officers could have used a lineup or
photo array identification procedure on that date but did not;
(5) Garza had been unable to identify Amador at the show up or
from any photo array until March 30, 1994; (6) to his personal
knowledge, Amador’s picture had not been included in a photo
array before March 30, 1994, but (7) numerous officers were
working on the case and it would not have been normal procedure
to include information in his reports regarding the activities of
other officers; (8) in April 1994, Rivas gave a statement to the
sheriff’s department;10 and (9) on April 13, 1994, he took a
statement from Amador.11 Id. Vol. XIX, pp. 131-233.
The defense called Detective Morales, who testified that:
(1) he was the lead investigator in the case; (2) he had
“numerous contacts” with Garza before she was able to identify
Amador; and (3) there was nothing urgent that prompted the
officers to do the show up with Garza on January 24, 1994, but
rather it was just convenient. Id. Vol. XX, pp. 173-202.
Neither officer testified about Garza’s hypnosis session or about
10
The contents of this statement were held to be
inadmissible.
11
Portions of this statement were read into evidence. See
supra note 5.
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the phone call that they received from Garza indicating that she
had learned the names of the suspects from a friend.
Two other witnesses provided testimony that tended to
implicate Amador in the shootings, Martinez and a witness named
Esther Menchaca, who had driven by and seen Amador and Rivas
walking on the median after they had abandoned the cab on the
morning of January 4, 1994. Martinez testified that: (1) Amador
was her boyfriend; (2) Amador awoke her in the early morning
hours of January 4, 1994, by knocking on her window and asked her
for money for a taxi ride; (3) approximately two weeks before
January 4, 1994, Amador had told her that he “wanted to do
something crazy involving a taxicab”; (4) sometime during the
afternoon of January 4, 1994, Amador told her that he and his
cousin had taken a taxi to Poteet and had shot someone; (5)
Amador described the murder to her in great detail; and (6)
Amador had written her a letter from prison pressuring her not to
testify. Id. Vol. XIX, pp. 251-93; id. Vol. XX, pp. 12-46.
Menchaca testified that, early in the morning of January 4,
1994, she was on her way to work heading toward Poteet. At
approximately 4:15 a.m. she observed an abandoned taxicab in the
median of Highway 16 and saw a male and a female walking along
side of the road. On May 3, 1994, she positively identified
Amador from a photo array as the male she had seen walking down
the road. Id. Vol. XIX, pp. 61-129.
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b. Conviction and Sentencing
On July 10, 1995, the jury returned its verdict, finding
Amador guilty of capital murder. The punishment phase of the
trial began that same day. On July 11, 1995, the jury sentenced
Amador to death.
3. Direct Appeal to the Texas Court of Criminal Appeals
On July 9, 1996, Amador appealed his conviction and sentence
to the Texas Court of Criminal Appeals (“TCCA”), alleging six
points of error.12
a. Amador’s Oral Statement Identifying the Caliber of
the Guns Used in the Crime
Amador’s appellate counsel did not assign as error the trial
court’s ruling admitting into evidence Amador’s statement
identifying the caliber of the weapons used in the shooting.
b. Garza’s In-Court Identification of Amador
The points of error did include an allegation that the trial
court erred by admitting into evidence Garza’s in-court
12
Amador’s brief assigned the following as error: (1) the
trial court’s admission of Garza’s in-court identification of
Amador; (2) the trial court’s instructions to the jury during the
punishment phase of the trial regarding the capital sentencing
“special issues” questions; (3) the trial court’s failure to
quash the indictment against Amador because it failed to allege
the issues to be decided by the jury at the punishment phase; (4)
the death penalty’s violation of the Eighth Amendment; (5) the
death penalty’s violation of the United Nations Charter; and (6)
the insufficiency of the evidence to support the jury’s guilty
verdict.
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identification of Amador because the out-of-court show up and
hypnosis identification procedures were unnecessary and
suggestive in violation of Amador’s due process rights. The TCCA
did not reach the substance of this claim; instead, it held that
Amador’s counsel had failed to preserve the alleged error at
trial. The court stated that after Amador’s counsel filed his
motion to suppress Garza’s in-court identification testimony,
[t]he trial judge agreed to view the videotape [of
Garza’s hypnosis session] and rule on the admissibility
of Garza’s in-court identification testimony afterwards.
The judge told defense counsel he would contact his
office and notify him of the ruling. However, [Amador’s
counsel] does not contend that such a ruling was ever
made or direct us to any portion of the record where such
a ruling can be found. Further, [Amador’s counsel] made
no objection to the admission of the evidence when it was
introduced at the trial on the merits.
. . . .
[Amador’s counsel] presents no justification, cause, or
excuse for his failure to object to the admission of the
evidence at the time of its introduction. . . .
Therefore, presenting nothing for review, Amador’s first
point of error is overruled.
Amador v. Texas, No. 72,162, 5-6 (Tex. Crim. App. Apr. 23, 1997)
(en banc) (unpublished). The trial court had in fact ruled on
and denied the motion to suppress on May 23, 1995, as reflected
in the trial court’s docket entry from that date, located on page
three of the first volume of the trial record. The TCCA also
rejected the remaining five points of error and affirmed Amador’s
conviction and sentence. Id. Amador’s counsel filed a petition
for rehearing with the TCCA, but once again failed to provide the
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court with the citation to the record evidencing the trial
court’s denial of Amador’s motion to suppress. The TCCA denied
the petition for rehearing on June 23, 1997, and the mandate
issued that same day. Amador did not file a petition for writ of
certiorari with the Supreme Court of the United States.
B. Post-Conviction Proceedings
1. State Habeas Proceedings
Amador filed his petition for state habeas corpus relief in
state district court for the 226th Judicial District of Bexar
County on December 12, 1997. Amador alleged thirty-four total
grounds for relief, including, inter alia, eight claims of
ineffective assistance of counsel by his appellate counsel during
his direct appeal, eleven claims of ineffective assistance of
counsel at trial, and six claims of prosecutorial misconduct.
The court held an evidentiary hearing on these claims from
October 1-2 and 7-8, 1998. On February 14, 2001, the court
adopted the state’s proposed findings of fact and conclusions of
law, recommending that habeas relief be denied on each of
Amador’s claims. Ex parte Amador, No. 94-CR-3643-W1 (Feb. 14,
2001) [hereinafter “State Habeas Order”]. The TCCA adopted all
of the findings of fact and conclusions of law set forth in the
state trial court’s order and denied relief. Ex parte Amador,
No. 48,848-10 (Tex. Ct. Crim. App. Sept. 12, 2001) (unpublished).
The TCCA’s denial of two of these claims is relevant to the
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instant appeal.
a. Amador’s Oral Statement Identifying the Caliber of
the Guns Used in the Crime
First, Amador argued that he was denied effective assistance
of counsel on appeal because his attorney failed to assign as
error the trial court’s evidentiary ruling that Amador’s
statements concerning the caliber of guns used in the shootings
were admissible. Trial Tr., Vol. XVIII, p. 174. Amador argued
that the admission of this testimony under Article 38.22, section
3 of the Texas Code of Criminal Procedure was error because that
provision applied only to statements containing facts that were
unknown to law enforcement at the time the statement was made and
later found to be accurate. See Dansby v. Texas, 931 S.W.2d 297,
298-99 (Tex. Crim. App. 1996) (holding that oral statements
resulting from custodial interrogation were inadmissible because
they merely confirmed information that law enforcement officers
already knew). In the instant case, at the time Amador made the
statement in question, the Bexar County Sheriff’s Department was
already aware of the caliber of the guns used in the shooting and
therefore this statutory exception was inapplicable.
The TCCA rejected this argument for two reasons. First, it
indicated that Amador’s pretrial motion to suppress on Article
38.22 grounds was insufficient to preserve the error for direct
appellate review. The court stated that, because Amador’s
counsel also objected to the admission of the statement at trial
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on hearsay grounds, “any complaint raised on appeal would have
been required to have raised that argument. Put in other words,
an argument based upon Art. 38.22 . . . was precluded by the
hearsay objection lodged at trial.” State Habeas Order at 19.
In a footnote, the court added that it “is aware of the legal
proposition that if a motion to suppress is heard and denied, no
further objection is necessary to preserve the error. However,
in the instant [case] a further objection was made hence making
that proposition inapplicable.” Id. at 19 n.5. The court cited
no relevant authority for this statement. Second, the court
stood by its initial ruling at trial that “the statements in
question were admissible as an exception to the prohibition
outlined by” Article 38.22. According to the court, because the
statement was admissible, Amador’s counsel could not have been
ineffective for failing to raise this issue on appeal because
Amador suffered no prejudice as a result. See Strickland v.
Washington, 466 U.S. 668 (1984) (requiring a habeas petitioner to
show both deficient performance and prejudice to prove
ineffective assistance of counsel).
b. Garza’s In-Court Identification of Amador
Second, Amador argued that he received ineffective
assistance of counsel on direct appeal because his attorney
failed properly to allege that the state trial court erred in
admitting Garza’s in-court identification testimony that was the
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result of unnecessary and suggestive identification procedures in
violation of his due process rights. Specifically, Amador
faulted his appellate counsel for failing to direct the TCCA to
the docket notation indicating that this issue had indeed been
preserved for review.13 See State Habeas R., Vol. I, pp. 11-12.
The state habeas court, apparently believing that Amador was
arguing that his counsel had not raised the issue of Garza’s
identification testimony at all on appeal, rejected Amador’s
claim for two reasons: (1) Amador’s counsel had in fact raised
the issue of the admissibility of the identification testimony on
appeal and the TCCA held that the issue was not properly
preserved for review; and (2) the claim “erroneously presupposes
that the testimony of Garza was inadmissible as a violation [of
Amador’s] right to due process of law,” and the admission of the
evidence did not prejudice Amador because, even if pretrial
identification techniques had been unnecessary and suggestive,
the in-court identification testimony was still admissible
because “the totality of the circumstances reveal no substantial
13
At the state habeas corpus evidentiary hearing, Amador’s
appellate counsel testified that, at the time of the direct
appeal, he believed the state’s argument that this error had not
been preserved for review to be incorrect. He also testified
that, despite this belief, he made no effort to direct the TCCA
to the location in the docket where the trial court formally
overruled Amador’s motion to suppress the in-court identification
testimony; he did not search the record for this information; and
he did not file a motion for rehearing identifying the docket
entry in question. State Habeas Evidentiary Hearing Tr., Vol.
II, 10-35.
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likelihood of misidentification.”
2. Federal Habeas Proceedings
Amador filed his 28 U.S.C. § 2254 petition for federal
habeas corpus relief in the United States District Court for the
Western District of Texas on May 24, 2002, and filed an amended
and supplemental habeas petition on May 2, 2003. He alleged
sixty total claims for relief. On September 3, 2003, the state
filed a motion for summary judgment. The district court
ultimately granted the state’s motion for summary judgment,
denying all of Amador’s claims for relief. Amador v. Dretke, No.
SA-02-CA-230-XR (Apr. 11, 2005) [hereinafter “Dist. Ct. Order”].
However, the district court granted a certificate of
appealability (“COA”) on two of those claims: (1) that Amador
received ineffective assistance of counsel on appeal because his
counsel failed to assign as error the trial court’s admission of
his statement identifying the caliber of guns used in the
shooting; and (2) that Amador received ineffective assistance of
counsel on appeal because his counsel failed properly to present
a challenge to the state trial court’s denial of Amador’s
pretrial motion to suppress the in-court identification testimony
of Garza.
a. Amador’s Oral Statement Identifying the Caliber of
the Guns Used in the Crime
Citing reasons different from those cited in the TCCA’s
opinion, the district court denied Amador’s claim regarding his
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statement identifying the caliber of guns. As a preliminary
matter, the district court noted that when the TCCA denied this
point of error, it essentially held that Amador’s counsel had
procedurally defaulted on this claim by failing to re-urge his
Article 38.22 objection at trial and asserting only a hearsay
objection instead. Further, the court noted that the state
habeas court’s reasoning on this point was likely erroneous
because the district court’s “independent research has disclosed
no other instances other than [Amador’s] case in which a Texas
appellate court has applied such a rule of procedural default to
foreclose merits review of an Article 38.22 claim following a
trial court’s formal denial of a pretrial motion to suppress.”
Dist. Ct. Order at 127. Therefore, the district court proceeded
to review the merits of Amador’s claim pursuant to Ford v.
Georgia, 498 U.S. 411, 423-24 (1991) (holding that application of
state procedural default rules bars federal habeas merits review
of a claim only when the state procedural default rule is firmly
in place and regularly followed).
Reviewing the merits of the claim, the district court noted
that, under its review of the relevant Texas case law, Amador’s
statement was likely inadmissible under Article 38.22 of the
Texas Code of Criminal Procedure. However, applying the Texas
harmless-error principles that governed at the time of Amador’s
direct appeal, the court held that, even if Amador’s statement
had been inadmissible, any error in admitting the statement would
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have been harmless and therefore Amador could not prove the
prejudice necessary to establish ineffective assistance of
counsel under Strickland, 466 U.S. 668.
b. Garza’s In-Court Identification of Amador
The district court also denied Amador’s claim regarding
Garza’s in-court identification testimony, holding that Amador
failed to show that Garza’s identification testimony was
inadmissible and therefore his counsel’s failure to properly
preserve this point of error did not constitute prejudice under
Strickland. First, with regard to the hypnosis procedure, the
district court stated that Amador “never alleged any specific
facts, nor presented any evidence, before the state habeas court
establishing that any of the procedures employed . . . were
unduly suggestive or otherwise tainted Esther Garza’s subsequent
in-court identification of [Amador] as one of her and Ayari’s
assailants.” Dist. Ct. Order at 83.
Second, the court determined that, even if the show up by
its very nature had been suggestive, Garza’s identification of
Amador had nonetheless been reliable under Manson v. Brathwaite,
432 U.S. 98, 114 (1977). The district court accordingly rejected
Amador’s claim, finding that the TCCA reasonably applied the law
to find that Garza’s identification was admissible and there was
no prejudice under Strickland.
On May 10, 2005, Amador filed a timely notice of appeal with
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this court.
II. STANDARD OF REVIEW
This habeas proceeding is governed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) because Amador filed his
§ 2254 habeas petition on December 12, 1997, after AEDPA’s
effective date of April 24, 1996. See Fisher v. Johnson, 174
F.3d 710, 711 (5th Cir. 1999). This court has jurisdiction to
resolve the merits of Amador’s habeas petition because, as stated
above, the district court granted him a COA. See Dist. Ct. Order
at 123-28; see also 28 U.S.C. § 2253(c)(1); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (explaining that a COA is a
“jurisdictional prerequisite” without which “federal courts of
appeals lack jurisdiction to rule on the merits of appeals from
habeas petitioners”).
We review de novo the district court’s grant of summary
judgment denying a state petitioner’s request for habeas relief.
Ogan v. Cockrell, 297 F.3d 349, 355-56 (5th Cir. 2002); Fisher v.
Texas, 169 F.3d 295, 299 (5th Cir. 1999). We review the district
court’s conclusions of law de novo and its findings of fact, if
any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582
(5th Cir. 2002). Moreover, “‘a federal habeas court is
authorized by Section 2254(d) to review only a state court’s
‘decision,’ and not the written opinion explaining that
decision.’” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.
-25-
2003) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)
(en banc)).
Under AEDPA, a federal court may not grant a writ of habeas
corpus “with respect to any claim that was adjudicated on the
merits in State court proceedings” unless the petitioner shows
that the state court’s adjudication “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,” or that the state court’s
adjudication of a claim “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13 (2000). A
state court’s decision is “contrary to” clearly established
federal law if (1) the state court “applies a rule that
contradicts the governing law” announced in Supreme Court cases,
or (2) the state court decides a case differently than the
Supreme Court did on a set of materially indistinguishable facts.
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court’s
application of clearly established federal law is “unreasonable”
within the meaning of AEDPA when the state court identifies the
correct governing legal principle from Supreme Court precedent,
but applies that principle to the case in an objectively
unreasonable manner. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
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A writ of habeas corpus may also issue if the state court’s
adjudication of a claim “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). Under AEDPA, state-court factual findings are
“presumed to be correct” unless the habeas petitioner rebuts the
presumption through “clear and convincing evidence.” Id.
§ 2254(e)(1); see Miller v. Johnson, 200 F.3d 274, 281 (2000).
III. DISCUSSION
Both of Amador’s ineffective assistance of appellate counsel
claims are governed by the test set forth in Strickland, 466 U.S.
at 687-88. To prevail on a claim of ineffective assistance of
counsel, a habeas petitioner first must show that counsel’s
performance was deficient. Id. Counsel’s performance is
deficient if it falls below an objective standard of
reasonableness. Id. A court’s review of counsel’s conduct is
deferential, presuming that “counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689.
While counsel need not raise every nonfrivolous ground available
on appeal, “a reasonable attorney has an obligation to research
relevant facts and law, or make an informed decision that certain
avenues will not prove fruitful. . . . Solid, meritorious
arguments based on directly controlling precedent should be
discovered and brought to the court’s attention.” United States
-27-
v. Williamson, 183 F.3d 458, 462-63 (5th Cir. 1999).
Once the petitioner establishes deficient performance, he
then must show that counsel’s objectively unreasonable
performance prejudiced the petitioner. Strickland, 466 U.S. at
688. A petitioner suffers prejudice if, but for the deficient
performance, the outcome of the trial--or, in this case, the
appeal--would have been different. Id. Although Strickland
itself involved ineffective assistance of trial counsel, the
Strickland analysis applies equally to claims of ineffective
assistance of appellate counsel. See Mayabb v. Johnson, 168 F.3d
863, 869 (5th Cir. 1999) (applying Strickland to an ineffective
assistance of appellate counsel claim and noting that “[w]hen we
do not find prejudice from the trial error, by extension, we
cannot find prejudice from an appellate error predicated on the
same issue”); see also Smith v. Robbins, 528 U.S. 259, 285 (2000)
(noting that Strickland is the appropriate standard to apply to
claims of ineffective counsel on appeal).
A. Amador’s Oral Statement Identifying the Caliber of Guns Used
in the Shootings
Applying Strickland, we first must determine whether the
failure of Amador’s appellate counsel to assign as error the
court’s admission of Amador’s statement identifying the caliber
of the guns constituted deficient performance.14 On its face,
14
Like the district court, we decline to treat this claim
as procedurally defaulted in light of the TCCA’s holding that “an
argument based upon Art. 38.22 . . . was precluded by the hearsay
-28-
the applicable statute mandates that an unrecorded, inculpatory
statement made by the accused that is the product of a custodial
interrogation is admissible if the statement “contains assertions
of facts or circumstances that are found to be true and which
conduce to establish the guilt of the accused, such as the
finding of secreted or stolen property or the instrument with
which he states the offense was committed.” TEX. CRIM. PROC. CODE
ANN. art. 38.22(3)(c). Citing a number of TCCA cases
interpreting Article 38.22, section 3, Amador contends that the
TCCA erred when it held that the statement was admissible because
this provision applies only to statements that provide facts that
were unknown to the police at the time the statement was made and
were later found to be true. See Romero v. Texas, 800 S.W.2d
539, 545 (Tex. Crim. App. 1990) (“The reliability demanded by
Sec. 3 is founded upon [the] premise [] that the oral confession
contain facts that lead to the discovery of items or information
previously unknown to the police.”); see also Dansby, 931 S.W.2d
at 298-99; Port v. Texas, 791 S.W.2d 103, 108 (Tex. Crim. App.
objection lodged at trial” despite Amador’s pretrial objection to
the admission of the statement on Article 38.22 grounds. State
Habeas Order at 19. We similarly conclude that even if this
ruling were properly characterized as one of procedural default
and review would otherwise be barred on independent and adequate
state grounds, it does not meet the criteria for procedural
default because such a rule is neither firmly in place nor
regularly followed in Texas state courts. See Ford, 498 U.S. at
423-24. The state points to no cases supporting the existence of
such a rule, and we have found none. We therefore address the
TCCA’s alternative holding on the merits.
-29-
1990). Amador argues that, contrary to the finding made by the
TCCA in this case, his statement was inadmissible and did not
fall under the Article 38.22, section 3 exception because, at the
time he made the statement on April 14, 1994, the police already
knew the caliber of the guns used in the shootings.
Specifically, Amador correctly notes that the record reflects
that, on January 4, 1994, a .25 caliber bullet was removed from
Garza’s nasal cavity the day of the shootings, the police found a
.25 caliber shell casing in the taxicab and a .380 caliber shell
casing at the crime scene, and the Bexar County Sheriff’s
Department issued a press release stating that a .380 caliber gun
was used in the crime.
Because we hold that the TCCA’s determination that Amador
failed to establish the prejudice prong of the Strickland test
was not an unreasonable application of clearly established law,
we pretermit a decision on the deficient performance prong of
Strickland and assume without deciding that Amador has shown
deficient performance. See Strickland, 466 U.S. at 697 (“[A]
court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so,
that course should be followed.”). Amador’s Strickland claim
fails because he cannot establish that, but for this deficient
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performance, the outcome of his appeal would have been different.
The prejudice inquiry in this case turns on a question of Texas
state law: whether the statement was in fact admissible at trial
under Article 38.22, section 3 of the Texas Code of Criminal
Procedure. To be sure, some Texas courts have applied a gloss on
Article 38.22, section 3, holding that provision applicable only
to statements containing facts that were unknown to the police at
the time and later found to be true; however, every Texas state
court to have addressed the issue in the instant case--from the
trial court to the state habeas court to the TCCA--has held that
the statement was in fact admissible under the broad language of
this provision. See, e.g., State Habeas Order at 19 (holding
that “the statements in question were admissible as an exception
to the prohibition outlined by” Article 38.22). Although other
Texas courts have interpreted Article 38.22, section 3
differently than the state habeas court did in this case, “in our
role as a federal habeas court, we cannot review the correctness
of the state habeas court’s interpretation of state law.” Young
v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004) (declining to review
the state habeas court’s determination of the validity of a Texas
statute under the Texas constitution in the context of a
Strickland claim); see also Bradshaw v. Richey, --- U.S. ----,
126 S. Ct. 602, 604 (2005) (“We have repeatedly held that a state
court’s interpretation of state law . . . binds a federal court
sitting in habeas corpus.”); Estelle v. McGuire, 502 U.S. 62, 67-
-31-
68 (1991) (“[I]t is not the province of a federal habeas corpus
court to reexamine state-court determinations on state-law
questions.”); Gibbs v. Johnson, 154 F.3d 253, 259 (5th Cir. 1998)
(“As a federal court in a habeas review of a state court
conviction, we cannot review state rulings on state law.”).
Therefore, because the state habeas court held that Amador’s
statement identifying the caliber of the guns was admissible
under Texas law, the result of Amador’s appeal would not have
been different had his appellate counsel raised this claim.
Accordingly, the TCCA’s determination that Amador did not receive
ineffective assistance of appellate counsel under Strickland was
not an unreasonable application of federal law.
B. Garza’s In-Court Identification of Amador
Amador also argues that he received ineffective assistance
of counsel when his appellate counsel failed to identify the
docket entry reflecting that the trial court had entered an
adverse ruling on his objection to the admission of Garza’s in-
court identification testimony, thereby preserving the objection
for appeal.
Under the first prong of the Strickland test, the conduct of
Amador’s appellate counsel was deficient because it fell below an
objective standard of reasonableness. During the state habeas
evidentiary hearing, Amador’s appellate counsel testified to his
own conduct during the direct appeal. By his own admission,
-32-
appellate counsel knew that the TCCA’s holding that the alleged
error had not been preserved was incorrect; despite this
knowledge, counsel did not respond to the assertion in the
state’s appellate brief that the trial court had not ruled on the
objection, did not attempt to locate the docket entry reflecting
the trial court’s adverse ruling, and did not attempt to correct
the misconception in the subsequent petition for rehearing.
State Habeas Evidentiary Hearing Tr., Vol. II, 10-35. Moreover,
Amador’s counsel admitted that his failure to do these things
served “no strategic purpose.” Id. at 21; see Busby v. Dretke,
359 F.3d 708, 715 (2004) (“Strategic decisions . . . can rarely
constitute ineffective assistance of counsel, so long as they are
based on reasonable investigations of the applicable law and
facts.”) (citing Strickland, 466 U.S. at 691) (emphasis added);
Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999) (“The Court
is . . . not required to condone unreasonable decisions parading
under the umbrella of strategy, or to fabricate tactical
decisions on behalf of counsel when it appears on the face of the
record that counsel made no strategic decision at all.”). Given
that counsel knew in advance that the state would argue that the
court had not entered an adverse ruling on the objection, that
counsel’s failure to investigate was a result of negligence
rather than trial strategy, and that the information to rebut the
state’s argument was easily accessible through a copy of the
trial docket, counsel’s conduct fell below an objective standard
-33-
of reasonableness. See Rompilla v. Beard, 545 U.S. 374 (2005)
(holding that counsel’s performance fell below an objective
standard of reasonableness when counsel failed to examine readily
available files containing mitigating evidence despite notice
that the state intended to use information from those files in
prosecuting counsel’s client).
However, Amador’s ineffective assistance of counsel claim
fails because he cannot show that he suffered prejudice from his
counsel’s deficient conduct. Relevant to whether Amador suffered
prejudice is whether Garza’s in-court identification testimony
was inadmissible because it was tainted by out-of-court
identification procedures that violated Amador’s due process
rights under the Fifth and Fourteenth Amendments. Out-of-court
identification procedures violate a defendant’s due process
rights if those procedures are (1) unnecessary and suggestive,
and (2) unreliable. See Brathwaite, 432 U.S. at 114 (enunciating
the two-prong test to determine the admissibility of in-court
identification testimony based on out-of-court identification
procedures); United States v. Atkins, 698 F.2d 711, 713 (5th Cir.
1983) (applying the two-prong Brathwaite test to possibly
suggestive identification procedures).
In this case, the show up was unnecessary and suggestive
under the first prong of the Brathwaite test. Requiring Garza to
view Amador through the cardboard apparatus while Amador was
standing in the homicide office of the Bexar County Sheriff’s
-34-
Department was suggestive because the procedure encouraged Garza
to identify the person she was viewing as the suspect. Indeed,
the Supreme Court has acknowledged that show ups such as this one
are inherently suggestive procedures, noting, “[t]he practice of
showing suspects singly to persons for the purpose of
identification, and not as part of a lineup, has been widely
condemned.” Stovall v. Denno, 388 U.S. 293, 302 (1967); see also
United States v. Wade, 388 U.S. 218, 228-30 (1967) (noting that
show ups are inherently suggestive); cf. United States v. Guidry,
406 F.3d 314, 319 (5th Cir. 2005) (holding that the show up
procedure was not suggestive where the show up was not one-on-
one, but rather was the equivalent of a lineup procedure).
Moreover, although show ups often will not violate a
defendant’s due process rights when they are performed out of
necessity or urgency, Detective Morales testified that there was
no exigency or urgent need for performing the January 24, 1994,
show up at the sheriff’s department and that they could have used
a lineup procedure but chose not to. Trial Tr. Vol. XX, p. 194;
cf. Stovall, 388 U.S. at 302 (holding that a show up did not
violate the defendant’s due process rights when the only witness
who could identify or exonerate him was in the hospital near
death); Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997)
(holding that a show up did not violate defendant’s due process
rights when the “exigency of the circumstances” made the
-35-
procedure necessary).15
However, the TCCA did not unreasonably apply clearly
established federal law when it held that the identification
testimony at issue in this case was nonetheless admissible
because it was reliable under the second prong of the Brathwaite
test. See Brathwaite, 432 U.S. at 114 (“[R]eliability is the
linchpin in determining the admissibility of identification
testimony”). Under the reliability prong, even if an
identification procedure is unnecessary and suggestive in
15
Amador contends that the hypnosis session that Garza
underwent in addition to the show up was unnecessary and
inherently suggestive. The Supreme Court has acknowledged the
suggestive nature of hypnosis, observing that
[t]he most common response to hypnosis, however, appears
to be an increase in both correct and incorrect
recollections. . . . Three general characteristics of
hypnosis may lead to the introduction of inaccurate
memories: the subject becomes “suggestible” and may try
to please the hypnotist with answers the subject thinks
will be met with approval; the subject is likely to
“confabulate,” that is, to fill in details from the
imagination in order to make an answer more coherent and
complete; and, the subject experiences “memory
hardening,” which gives him great confidence in both true
and false memories, making effective cross-examination
more difficult.
Rock v. Arkansas, 483 U.S. 44, 59-60 (1987). While there is no
evidence in this case that the hypnosis procedure alone was
explicitly suggestive, the very fact that it happened shortly
after another inherently suggestive procedure (i.e., the show up)
is relevant to the overall suggestiveness of the identification
procedures under the totality of the circumstances. See Stovall,
388 U.S. at 302 (analyzing the totality of the circumstances to
determine if an identification procedure violated due process).
Nevertheless, there is no evidence in this case that the hypnosis
procedure alone was explicitly suggestive or that it became so
when it occurred shortly after the show up.
-36-
violation of a defendant’s due process rights, the resulting
testimony is admissible if the identification is nonetheless
reliable in light of the totality of the circumstances; i.e., if
it poses “no substantial likelihood of irreparable
misidentification.” Id. at 116; Stovall, 388 U.S. at 302 (“[A]
claimed violation of due process of law depends on the totality
of the circumstances surrounding it.”); see also Neil v. Biggers,
409 U.S. 188, 198 (1972). The Brathwaite Court articulated five
factors that courts should apply in evaluating the reliability of
an identification procedure: (1) the witness’s opportunity to
view the suspect; (2) the witness’s degree of attention; (3) the
accuracy of the witness’s initial description of the suspect; (4)
the witness’s level of certainty; and (5) the time between the
crime and the trial confrontation. Brathwaite, 432 U.S. at 114-
16; see also Neil, 409 U.S. at 198; United States v. Hefferon,
314 F.3d 211, 217-18 (5th Cir. 2002) (applying the Brathwaite
factors to determine that the show up had sufficient indicia of
reliability for the witness’s identification testimony to be
admissible at trial).
Garza testified at both the pretrial hearing and at trial
before the jury that she had a sufficient view of Amador’s face
when Amador crossed in front of the taxicab’s headlights on his
way to retrieve money from Martinez’s house and when Amador was
inside the cab talking to her and Ayari. Trial Tr., Vol. III,
pp. 11-15, 60-61; id. at Vol. XVIII, pp. 109-115, 193, 214, 218.
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Garza emphasized that she got a “good look” at Amador’s face
during Amador’s walk back to the taxicab from Martinez’s house.
Id. at Vol. III, p. 46; id. at Vol. XVIII, p. 214. Although her
initial estimation of Amador’s height was incorrect, Garza
explained that she was slouched down during the car ride and thus
had overestimated Amador’s height from that angle. Other than
this height discrepancy, Garza’s description of the suspect
remained certain and unchanged from January 10, 1994, through the
end of the trial; indeed, Garza testified at trial that Amador
had changed his appearance dramatically by shaving his head
between the time of the shootings and the trial. Moreover,
despite the suggestiveness of the January 24, 1994, show up,
Garza refused to identify Amador on that day based on the height
discrepancy and Amador’s shaved head, which was different from
the full head of dark hair that Amador had on the night of the
shootings. Id. at Vol. III, pp. 24-26, 60-61; id. at Vol. XVIII,
pp. 145, 154, 229, 232. In fact, Garza explained that she was
reluctant to identify anyone until she was confident in her
identification; she explained that when she finally identified
Amador as the male passenger in the cab that night--two months
after the hypnosis session and three months after the shootings--
she “had all that time to think about it and [she] just pictured
him and [she] just [knew] . . . it’s him.” Id. at Vol. XVIII, p.
248.
As in Brathwaite,
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we cannot say that under all the circumstances of this
case there is a very substantial likelihood of
misidentification. . . . Short of that point, such
evidence is for the jury to weigh. We are content to
rely upon the good sense and good judgment of American
juries, for evidence with some element of
untrustworthiness is customary grist for the jury mill.
Juries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that
has some questionable feature.
Brathwaite, 432 U.S. at 116. In this case, the jury heard
extensive testimony and cross examination regarding the
identification procedures and Garza’s initial reluctance to
identify Amador, not only from Garza but also from Sergeant Marin
and Detective Morales. Given that Garza’s identification of
Amador was ultimately reliable under the Brathwaite factors, and
because the jury was able to make an informed decision regarding
the reliability of that identification based on the copious
evidence presented at trial, the TCCA’s application of Strickland
was not unreasonable because no prejudice ensued despite the
suggestiveness of the identification procedures.
Moreover, even if the identification testimony should have
been excluded under Brathwaite because the identification was
ultimately unreliable, there still would not have been prejudice
under Strickland given the weight of the other inculpatory
evidence offered at trial. Even without Garza’s identification
of Amador as the male passenger in the cab on the night of the
shootings, the jury heard Amador’s voluntary statement describing
what he “would have” done had he been involved in the shootings
-39-
and concluding that “[i]f all this stuff about the murder is true
and they can prove it in court, then I will take my death
sentence.” The jury also heard testimony from Martinez, who
described Amador’s confession to her detailing what happened on
the night of the shootings, mentioned Amador’s prior statement
that he wanted to do something “crazy involving a taxicab,” and
testified that Amador had written her a letter from prison
warning her not to testify. The jury also heard about the Crime
Stoppers tip that led to Amador’s arrest and Amador’s accurate
identification of the caliber of the guns used in the shooting
once in custody. Moreover, witness Esther Menchaca testified,
placing Amador and Rivas at the scene of the abandoned taxicab
shortly after the shootings occurred in the early morning of
January 4, 1994, and explaining that she had previously
identified Amador from a photo array.
Given the great weight of additional evidence against
Amador, we cannot say that there is a reasonable probability
that, but for the admission of the identification evidence, the
outcome of the trial would have been different. See Strickland,
466 U.S. at 695. Accordingly, the TCCA did not unreasonably
apply clearly established federal law when it held that counsel’s
failure to argue this point adequately on appeal does not rise to
the level of constitutional error. See Mayabb, 168 F.3d at 869
(“When we do not find prejudice from the trial error, by
extension, we cannot find prejudice from an appellate error
-40-
predicated on the same issue.”).
IV. CONCLUSION
For the foregoing reasons, we hold that the TCCA did not
unreasonably apply clearly established federal law as announced
by the Supreme Court. We therefore AFFIRM the district court’s
denial of habeas relief.
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