Reynoso v. Lumpkin ( 2021 )

Case: 20-70023 Document: 00515958147 Page: 1 Date Filed: 07/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 29, 2021
No. 20-70023 Lyle W. Cayce
Clerk
Juan Jose Reynoso,
Petitioner,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
Application for a Certificate of Appealability
from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-2103
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
A Texas jury convicted Juan Reynoso in 2004 of murdering Tonya
Riedel and sentenced him to death. Reynoso claims his counsel rendered
ineffective assistance during the punishment phase by doing too little to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-70023 Document: 00515958147 Page: 2 Date Filed: 07/29/2021
No. 20-70023
prepare mitigation witnesses. The district court, finding the claim both
procedurally barred and meritless, denied Reynoso a certificate of
appealability (COA). We also agree that Reynoso’s constitutional claim is
meritless and so deny him a COA.
To obtain a COA, a petitioner must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a
district court has rejected the 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). 1
An ineffective assistance of counsel claim requires a petitioner to show
(1) “counsel’s performance was deficient,” and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). The second prong requires showing “that but for his
counsel’s deficiency, there is a reasonable probability [petitioner] would have
received a different sentence.” Porter v. McCollum, 558 U.S. 30, 41 (2009).
Reynoso fails to make a substantial showing on at least the second
Strickland prong, i.e., that trial counsel’s performance prejudiced his case for
a life sentence. He claims that in preparing his mitigation case, his attorneys
began too late, relied on an investigator to interview witnesses, and took the
1
Reynoso procedurally defaulted his ineffective assistance claim by failing to raise
it in his original state habeas proceeding. Rather than untangling whether he can overcome
this default because of the alleged ineffectiveness of his state habeas counsel—see Martinez
v. Ryan, 566 U.S. 1, 9 (2012); Trevino v. Thaler, 569 U.S. 413, 421–23 (2013)—we “cut to
the core of the case” and deny COA based on his failure to show a substantial
constitutional claim. King v. Davis, 883 F.3d 577, 585 (5th Cir. 2018); see also Murphy v.
Davis, 901 F.3d 578, 589 n.4 (5th Cir. 2018) (“[I]nstead of deciding if [petitioner] can
overcome his procedural default . . . we will cut straight to the merits to deny his claim”);
Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (“When relief is due to be denied
even if claims are not procedurally barred, we can skip over the procedural bar issues.”).
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No. 20-70023
witnesses’ testimony in court based only on the investigator’s notes. With
more thorough preparation, Reynoso argues the witnesses’ testimony could
have been more powerful and persuaded the jury to spare him the death
penalty. But we have a rejected a similar claim before, in a case where counsel
delegated pre-testimony witness interviews to an investigator, and the
petitioner argued that “these witnesses would have been ‘more effective’ if
they had been better prepared.” Coble v. Quarterman, 496 F.3d 430, 436 (5th
Cir. 2007). We held this did “not come close to suggesting that but for
counsel’s errors, the result of the proceeding would have been different.”
Ibid. (internal quotation marks omitted). Likewise, by arguing better
preparation might have elicited “qualitatively greater” mitigation testimony,
Reynoso also fails to make a substantial showing of prejudice.
Furthermore, the “new evidence” Reynoso claims counsel ought to
have elicited from mitigation witnesses is cumulative and double-edged.
Almost all this evidence—such as his mother’s abandonment of the family
and his subsequent substance abuse, depression, and self-harm—concerns
aspects of Reynoso’s history to which thirteen mitigation witnesses,
including Reynoso himself, testified at trial. Failure to present more of the
same evidence cannot support a finding of prejudice. See Bobby v. Van Hook,
558 U.S. 4, 12 (2009) (finding no prejudice where “[o]nly two witnesses even
arguably would have added new, relevant information”); Wong v. Belmontes,
558 U.S. 15, 22–23 (2009) (after nine witnesses offered a range of evidence
to “humanize” the defendant, “[a]dditional evidence on these points would
have offered an insignificant benefit, if any at all”). Likewise, the proffered
new evidence that trauma caused Reynoso to suffer “extreme reactivity to
perceived threat” is too double-edged to show prejudice. Although this
evidence “might permit an inference that he is not as morally culpable for his
behavior, it also might suggest [Reynoso], as a product of his environment, is
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No. 20-70023
likely to continue to be dangerous in the future.” Ladd v. Cockrell, 311 F.3d
349, 360 (5th Cir. 2002).
Finally, the new evidence does not change the fact that Reynoso’s
mitigation evidence is dwarfed by the State’s aggravation case. A prejudice
analysis must “consider the totality of the available mitigation evidence—
both that adduced at trial, and the evidence adduced in the habeas
proceeding—and reweigh it against the evidence in aggravation.” Porter, 558
U.S. at 41 (cleaned up). During the punishment phase, the State presented
extensive aggravating evidence: Reynoso’s string of armed robberies
(including one in which he shot his victim in both legs) in the weeks before
the murder; prior convictions for burglary of a vehicle, drug possession, and
contempt of court; numerous juvenile offenses; his attempted shooting of a
fellow marijuana dealer over a drug debt, days after the murder; and his
remorseless “bragging” about the murder in its aftermath. The brutality of
the murder—shooting a homeless woman point-blank after she resisted
Reynoso’s demands for money—was offered as an additional aggravator.
Reynoso has made no substantial argument that his new mitigation evidence
could have altered the balance against this aggravation case.
Motion for COA DENIED.
4