Trevino v. Davis , 201 L. Ed. 2d 1014 ( 2018 )

Cite as: 584 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
CARLOS TREVINO v. LORIE DAVIS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 17–6883. Decided June 4, 2018
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from the denial of certiorari.
The first time this Court considered petitioner Carlos
Trevino’s case, it held pursuant to Martinez v. Ryan, 566
U.S. 1 (2012), 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 col-
lateral proceeding, there was no counsel or counsel . . . was
ineffective,’ ” and if, as in Texas, the “state procedural
framework . . . makes it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to
raise a claim of ineffective assistance of trial counsel on
direct appeal.” Trevino v. Thaler, 569 U.S. 413, 429
(2013) (quoting Martinez, 566 U.S., at 17). Having em-
phasized that the right to adequate assistance of trial
counsel is “critically important,” 569 U.S., at 428, the
Court remanded Trevino’s case with the expectation that,
if Trevino could establish that his underlying ineffective-
assistance-of-trial-counsel claim was substantial and that
his initial-review counsel was ineffective, courts would
afford him meaningful review of the underlying claim.
Unfortunately, that is not what happened. When the
Court of Appeals for the Fifth Circuit ultimately consid-
ered whether Trevino was prejudiced by his trial counsel’s
failure to investigate and present evidence of his fetal
2 TREVINO v. DAVIS
SOTOMAYOR, J., dissenting
alcohol spectrum disorder (FASD), the panel majority did
not properly “reweigh the evidence in aggravation against
the totality of available mitigating evidence.” Wiggins v.
Smith, 539 U.S. 510, 534 (2003). Rather, the majority
dismissed the new FASD evidence because it purportedly
created a “significant double-edged problem” in that it had
both mitigating and aggravating aspects, and stopped its
analysis short without reweighing the totality of all the
evidence. 861 F.3d 545, 551 (2017). That truncated
approach is in direct contravention of this Court’s prece-
dent, which has long recognized that a court cannot simply
conclude that new evidence in aggravation cancels out new
evidence in mitigation; the true impact of new evidence,
both aggravating and mitigating, can only be understood
by asking how the jury would have considered that evi-
dence in light of what it already knew.
Although this Court is not usually in the business of
error correction, this case warrants our intervention and
summary disposition. I respectfully dissent from the
Court’s refusal to correct the Fifth Circuit’s flagrant error.
I
A
Under Strickland v. Washington, 466 U.S. 668 (1984),
to establish that trial counsel’s “deficient performance
prejudiced the defense,” a “defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id., at 687, 694. For purposes of a
mitigation-investigation claim like this one, a court must
“consider the totality of the available mitigation evi-
dence—both that adduced at trial, and the evidence ad-
duced in the habeas proceeding—and reweigh it against
the evidence in aggravation.” Sears v. Upton, 561 U.S.
945, 955–956 (2010) (per curiam) (internal quotation
marks and alteration omitted); Wiggins, 539 U.S., at 534.
Cite as: 584 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
Where, as here, new evidence presented during postcon-
viction proceedings includes both mitigating and aggravat-
ing factors, a court still must consider all of the mitigating
evidence alongside all of the aggravating evidence. The
new evidence must not be evaluated in isolation. More-
over, the court must step into the shoes of the jury, and
review the evidence as the jury would have in the first
instance. See Williams v. Taylor, 529 U.S. 362, 398
(2000); Rompilla v. Beard, 545 U.S. 374, 393 (2005).
In Texas, a jury at the penalty phase of a capital trial
first considers whether there is a probability that the
defendant will be a future threat to society, Tex. Code
Crim. Proc. Ann., Art. 37.071, §(2)(b)(1) (Vernon Cum.
Supp. 2017), and whether the defendant caused, intended
to cause, or anticipated a death, §2(b)(2). Only if the state
has proved those two issues beyond a reasonable doubt
will the jury then consider the effect of mitigating evi-
dence on the sentence. §§2(c), (g).1 If even one juror de-
cides that, “taking into consideration all of the evidence,
including the circumstances of the offense, the defendant’s
character and background, and the personal moral culpa-
bility of the defendant, there is a sufficient mitigating
circumstance or circumstances to warrant that a sentence
of life imprisonment without parole rather than a death
sentence be imposed,” the court must impose a life sen-
tence. §§2(e)(1), (f )(2), (g).
B
With that framework in mind, consider the facts of this
case.2 During the penalty-phase proceedings, the State
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1 If at least one juror decides either of those two issues in the nega-
tive, the court must impose a life sentence regardless of the effect of
mitigating circumstances. See Tex. Code Crim. Proc. Ann., Art. 37.071,
§2(g).
2 The procedural history of this case is complex. For present purposes,
it is sufficient to note that after this Court’s remand, Trevino filed a
4 TREVINO v. DAVIS
SOTOMAYOR, J., dissenting
presented evidence of Trevino’s juvenile criminal record
and adult convictions. The jury also heard uncontroverted
testimony that Trevino was a member of a street gang and
a violent prison gang, and, needless to say, the jurors were
aware that they had just convicted Trevino of capital
murder.
With respect to mitigation, Trevino’s counsel presented
just one witness, Trevino’s aunt, who testified that
“ ‘(1) she had known [Trevino] all his life, (2) [his] fa-
ther was largely absent throughout [his] life, (3) [his]
mother “has alcohol problems right now,” (4) [his]
family was on welfare during his childhood, (5) [Tre-
vino] was a loner in school, (6) [Trevino] dropped out
of school and went to work for his mother’s boyfriend
doing roofing work, (7) [Trevino] is the father of one
child and is good with children, often taking care of
her two daughters, and (8) she knows [he] is incapable
of committing capital murder.’ ” 861 F.3d, at 547.
With only that mitigation before them, the jury deliberated
for approximately eight hours before it unanimously con-
cluded that the State satisfied its burden of showing that
Trevino was a continuing threat to society; that he had
caused, intended to cause, or anticipated the death of a
person; and that the mitigating circumstances were insuf-
ficient to warrant a life sentence instead of a death sen-
tence. Ibid.
In addition to this evidence presented at trial, Trevino
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second amended federal habeas petition. The District Court denied
relief. Trevino v. Stephens, 2015 WL 3651534 (WD Tex., June 11,
2015). The Fifth Circuit granted a certificate of appealability and
affirmed the District Court’s denial of relief solely on the basis that, on
the merits, Trevino could not establish that he was prejudiced by his
trial counsel’s failure to introduce additional mitigating evidence. See
861 F.3d 545, 548–551 (2017). Judge Dennis dissented from that
decision. Id., at 551–557.
 Cite as: 584 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
offered new mitigating evidence in support of his habeas
petition, including testimony from expert and lay witnesses,
relating to his fetal alcohol spectrum disorder. Dr. Rebecca
H. Dyer, Ph. D., a clinical and forensic psychologist, re-
ported that Trevino “functions ‘within the low average
range of intellectual functioning,’ and has a ‘history of
employing poor problem-solving strategies, attentional
deficits, poor academic functioning, memory difficulties,
and history of substance abuse.’ ” Id., at 553 (Dennis, J.,
dissenting). She further stated:
“ ‘[Trevino’s] history of [FASD] clearly had an impact
on his cognitive development, academic performance,
social functioning, and overall adaptive functioning.
These factors, along with his significant history of
physical and emotional abuse, physical and emotional
neglect, and social deprivation clearly contributed to
[Trevino’s] ability to make appropriate decisions and
choices about his lifestyle, behaviors and actions, his
ability to withstand and ignore group influences, and
his ability to work through and adapt to frustration
and anger.’ ” Ibid. (alterations in original).
She concluded that Trevino’s FASD “ ‘would . . . have
impacted any of [his] decisions to participate in or refrain
from any activities that resulted in his capital murder
charges,’ ” ibid. (ellipsis and alterations in original), even if
the condition “ ‘would not have significantly interfered
with his ability to know right from wrong, or to appreciate
the nature and quality of his actions at the time of the
capital offense,’ ” id., at 549.
Dr. Paul Conner, Ph. D., a clinical neurologist, further
reported that “Trevino demonstrated deficiencies in eight
cognitive domains, where only three are necessary for a
diagnosis of FASD.”3 Id., at 549–550. Trevino’s “ ‘daily
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3 Trevino showed deficits in “academics, especially math; verbal and
6 TREVINO v. DAVIS
SOTOMAYOR, J., dissenting
functioning skills are essentially at a level that might be
expected from an individual who was diagnosed with an
intellectual disability.’ ” Id., at 550.
Trevino’s lay witnesses placed his FASD in context.
Ibid. Linda Mockeridge, a mitigation expert, collected
testimony that Trevino’s mother drank between 18 and 24
cans of beer every day during her pregnancy; Trevino
weighed only four pounds at birth; he was not potty
trained until he was six years old and wore diapers at
night until he was eight years old; he was developmentally
delayed as compared to his siblings; he repeated several
grades in elementary school and eventually dropped out of
school in the ninth grade, at which point he read at a
third-grade level. Id., at 554 (Dennis, J., dissenting).
Trevino’s former girlfriend stated that Trevino “was a
good father and caring toward her, but was easily influ-
enced by his friends.” Id., at 550. She also recounts in-
stances where he “was violent toward her,” including a
time when Trevino “put a gun to [her] head” and another
when “he attempted to rape her at knifepoint.” Ibid. She
says she “ ‘was always fearful of him,’ ” and Trevino’s
brother says he had “witnessed Trevino be physically
violent toward [the former girlfriend], including choking
her.” Ibid.
Trevino’s former employer commented that Trevino
“was a good worker that lacked initiative.” Ibid. A friend
stated that Trevino is “ ‘peaceful’ ” and “ ‘not violent,’ ” but
acknowledged that Trevino “ ‘had firearms and was part of
a street gang,’ ” and that when Trevino was released on
parole he “went out with friends, ‘getting high and drunk
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visuospatial memory; visuospatial construction; processing speed;
executive functioning, especially on tasks that provide lower levels of
structure and as such require greater independent problem solving or
abstraction skills; communication skills, especially receptive skills;
daily living skills, primarily ‘community skills’; and socialization skills.”
Id., at 553–554 (Dennis, J., dissenting).
Cite as: 584 U. S. ____ (2018) 7
SOTOMAYOR, J., dissenting
and robbing people.’ ” Ibid.
C
Reviewing Trevino’s claim de novo,4 the Fifth Circuit
majority concluded that the evidence is “insufficient to
create a reasonable probability that Trevino would not
have been sentenced to death had it been presented to the
jury.” Ibid. The majority first attempted to distinguish
Wiggins, where the Court concluded that trial counsel
rendered ineffective assistance in failing to discover and
present mitigation information. “Unlike in Wiggins,”
where the only mitigation presented at trial was “ ‘that
Wiggins had no prior convictions,’ ” the majority reasoned
that “Trevino’s trial counsel did present mitigating evi-
dence,” in that his aunt “covered his mother’s alcohol
problems, his absent father, his trouble in school, and the
love he demonstrated toward [the aunt’s] daughters.” 861
F.3d, at 550.
Then, looking at the new evidence in isolation, the
majority noted that “[t]he mitigating evidence that Tre-
vino suffers from FASD would be heard along with [his
former girlfriend’s] graphic testimony of Trevino’s violence
toward her and [his friend’s] testimony that he was in-
volved in gang and criminal activity.” Ibid. It also found
that the additional mitigating evidence was “undermined
by Dyer’s conclusion that Trevino’s FASD ‘would not have
significantly interfered with his ability to know right from
wrong, or to appreciate the nature and quality of his ac-
tions at the time of the capital offense.’ ” Id., at 550–551.
In light of these negative aspects of the new evidence,
the majority concluded that it created “a significant double-
edged problem that was not present in Wiggins.” Id., at
551. Because “[j]urors could easily infer from this new
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4 The Court of Appeals’ review was de novo because the state court
“never reached the issue of prejudice.” Rompilla v. Beard, 545 U.S.
374, 390 (2005).
8 TREVINO v. DAVIS
SOTOMAYOR, J., dissenting
FASD evidence that Trevino may have had developmental
problems . . . and poor decisionmaking, but that he also
engaged in a pattern of violent behavior . . . that he under-
stood was wrong,” the majority concluded that he could
not establish prejudice. Ibid. The analysis stopped there,
and over the dissent of one judge, the majority affirmed
the denial of habeas relief.
II
In focusing on what it considered to be the “double-
edged” nature of the new evidence, the Fifth Circuit ma-
jority failed to view the prejudice inquiry holistically. The
requisite inquiry demands that courts consider the entirety
of the evidence and reweigh it as if the jury had considered
it all together in the first instance. Wiggins, 539 U.S., at
534. The Court’s decisions in Williams v. Taylor, 529 U.S.
362 (2000), Rompilla v. Beard, 545 U.S. 374 (2005), and
Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam),
control the outcome here.
In Williams, new mitigation evidence presented in
postconviction proceedings revealed that the petitioner
was “ ‘borderline mentally retarded,’ ” experienced severe
child abuse and neglect, and as a child spent time in “the
custody of the social services bureau.” 529 U.S., at 395–
396. The Court acknowledged, however, that “not all of
the additional evidence was favorable to [the petitioner].”
Id., at 396. For example, “juvenile records revealed that
he had been thrice committed to the juvenile system” for
various offenses. Ibid.
The Court did not isolate that new evidence, which
included both mitigating and potentially aggravating
aspects, and decide that it canceled itself out. Rather, it
considered all the evidence and evaluated how the new
evidence would have affected the jury’s evaluation of
future dangerousness and moral culpability in light of
what the jury already knew. Specifically, the Court recog-
Cite as: 584 U. S. ____ (2018) 9
SOTOMAYOR, J., dissenting
nized that, although the additional evidence “may not
have overcome a finding of future dangerousness, the
graphic description of Williams’ childhood, filled with
abuse and privation, or the reality that he was ‘borderline
mentally retarded,’ might well have influenced the jury’s
appraisal of his moral culpability.” Id., at 398.
In Rompilla, the Court again discussed mitigating and
aggravating aspects of new evidence presented in support
of a failure-to-investigate claim. Postconviction mitigation
investigation revealed that the petitioner “ ‘suffers from
organic brain damage, an extreme mental disturbance
significantly impairing several of his cognitive functions,’ ”
that he read at a third-grade level, and that his mental
health problems “ ‘were likely caused by fetal alcohol
syndrome.’ ” 545 U.S., at 392. In addition to this mitigat-
ing evidence, the Court acknowledged that new evidence
also showed that the petitioner “ ‘early came to [the] atten-
tion of juvenile authorities, quit school at 16, [and] started
a series of incarcerations . . . often of assaultive nature
and commonly related to over-indulgence in alcoholic
beverages.’ ” Id., at 390–391 (some alterations in original).
Despite what the Fifth Circuit majority here would have
called the “double-edged” nature of that new evidence, the
Court concluded that the petitioner was prejudiced by his
counsel’s failure to investigate and introduce the evidence
because “the undiscovered ‘mitigating evidence, taken as a
whole, “might well have influenced the jury’s appraisal” of
[Rompilla’s] culpability.’ ” Id., at 393 (alteration in origi-
nal; emphasis added).
In Wong, although the Court concluded that the peti-
tioner had not been prejudiced by his counsel’s mitigation
presentation, that conclusion resulted from an assessment
of all the mitigation and aggravation evidence available in
the record, both from trial and from the habeas proceed-
ing. The Court found that much of the new “humanizing
evidence” was cumulative of the mitigating evidence pre-
10 TREVINO v. DAVIS
SOTOMAYOR, J., dissenting
sented at trial, 558 U.S., at 22, whereas the new aggra-
vating evidence was “potentially devastating” information
that the jury had not heard, namely, that Wong had com-
mitted a prior, unrelated murder “execution style,” id., at
17. The Court emphasized the importance of considering
“all the evidence—the good and the bad—when evaluating
prejudice.” Id., at 26. It ultimately concluded that be-
cause “the worst kind of evidence would have come in with
the good,” all of the mitigating evidence would not have
outweighed the aggravating evidence. Ibid.
The Fifth Circuit majority’s misguided focus on the
“double-edged problem” of the new evidence failed to
comport with the clear takeaway from Williams, Rompilla,
and Wong that a court assessing prejudice based on failure
to investigate and present mitigating evidence must con-
sider the value of the newly discovered evidence in the
context of the whole record.
That legal error is particularly evident given Texas’
capital sentencing scheme. In Texas, if a jury reaches a
mitigation inquiry, it necessarily already has concluded
beyond a reasonable doubt that the defendant poses a
continuing threat to society. Tex. Code Crim. Proc. Ann.,
Art. 37.071, §§2(b)(1), (c), (g). Just as in Williams, it may
be that the new evidence that Trevino uncovered in his
habeas proceedings would “not have overcome [the] find-
ing” that he posed a threat to society. 529 U.S., at 398.
In fact, some of the new evidence may bolster that deter-
mination. But whether the defendant poses a risk of
future dangerousness is not the only inquiry a jury consid-
ering death must undertake. Having found future dan-
gerousness, a jury still must consider whether “there is a
sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment without
parole rather than a death sentence be imposed,” in light
of variables such as the “circumstances of the offense, the
defendant’s character and background, and the personal
Cite as: 584 U. S. ____ (2018) 11
SOTOMAYOR, J., dissenting
moral culpability of the defendant.” §2(e)(1). In that
inquiry, as the Court in Williams stated, “[m]itigating
evidence unrelated to dangerousness may alter the jury’s
selection of penalty, even if it does not undermine or rebut
the prosecution’s death-eligibility case.” Id., at 398.
Had the Fifth Circuit majority undertaken a full in-
quiry, it is unlikely that the new aggravating evidence
would have factored substantially into the jury’s mitiga-
tion decision, as much of the new aggravating evidence
“was merely cumulative” of the evidence presented at
trial. Wong, 558 U.S., at 22. The jury already knew, for
example, that Trevino was a member of a street gang and
a violent prison gang. The allegations that Trevino as-
saulted his former girlfriend, although serious, reflected
his violent tendencies and were hardly new character-and-
background information for a jury that had just convicted
Trevino of capital murder. The fact that one expert testi-
fied that Trevino’s FASD “ ‘would not have significantly
interfered with his ability to know right from wrong, or to
appreciate the nature and quality of his actions at the
time of the capital offense,’ ” 861 F.3d, at 549, cannot be
considered new aggravating evidence given that “Trevino
did not assert an insanity defense and the same jury had
already found him guilty of the offense,” id., at 556 (Den-
nis, J., dissenting).
In contrast, the new mitigating evidence relating to
FASD is completely different in kind from any other evi-
dence that the jury heard about Trevino. At sentencing,
the testimony of Trevino’s aunt did not in any sense touch
on Trevino’s FASD or its implications for his cognitive
development.5 Had the jury learned of the FASD and
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5 The Fifth Circuit majority considered the aunt’s testimony to have
been at least more substantial than the mitigation presented in Wig-
gins v. Smith, 539 U.S. 510 (2003), but that point is irrelevant. This
Court has “never limited the prejudice inquiry under Strickland to
cases in which there was only little or no mitigation presented.” Sears
12 TREVINO v. DAVIS
SOTOMAYOR, J., dissenting
related testimony, it would have had a much fuller per-
spective of his character and background. For example,
the jurors learned that Trevino dropped out of school
early, but they had no idea that his disorder affected his
academic functioning, including his problem-solving skills,
memory, and reading ability, or that his achievement of
basic childhood milestones like potty training had been so
severely delayed. As in Williams, where the jury had not
learned that the petitioner was “ ‘borderline mentally
retarded,’ ” 529 U.S., at 398, the jurors here did not know
that Trevino’s “ ‘daily functioning skills are essentially at a
level that might be expected from an individual who was
diagnosed with an intellectual disability.’ ” 861 F.3d,
at 550.
The jurors heard that Trevino was a good father and
often cared for his aunt’s children, but they did not know
of the childhood abuse and neglect that he overcame to
learn to care for other children. The jurors were aware
that Trevino’s mother had alcohol problems, but they were
unaware that she drank 18 to 24 beers per day during
pregnancy, resulting in Trevino’s developmental delays.
Evidence of FASD also would have helped the jury
better understand the circumstances leading to the capital
murder charges, as the disorder “would . . . have impacted
any of . . . Trevino’s decisions to participate in or refrain
from [related] activities.” Id., at 549. The jurors heard
that Trevino had violent tendencies, but they did not know
that his FASD impacted his ability to work through and
adapt to frustration and anger, or that FASD affected his
ability to withstand and ignore group influences.
All in all, the new mitigating evidence had remarkable
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v. Upton, 561 U.S. 945, 954 (2010) (per curiam) (internal quotation
marks omitted). The fact that trial counsel made an “effort to present
some mitigation evidence” does not “foreclose an inquiry into whether a
facially deficient mitigation investigation might have prejudiced the
defendant.” Id., at 955 (emphasis in original).
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SOTOMAYOR, J., dissenting
value, especially given this Court’s recognition that evi-
dence relating to a defendant’s cognitive functioning plays
an important role in a jury’s selection of a penalty. See
Williams, 529 U.S., at 398; Rompilla, 545 U.S., at 391–
393. Yet, despite the lack of any other evidence at trial
that dealt with Trevino’s lifelong cognitive disorder, the
Fifth Circuit majority discounted the new evidence in its
entirety under its double-edged theory, without consider-
ing its potential effect on a jury’s “appraisal of [Trevino’s]
moral culpability.” Williams, 529 U.S., at 398.
The Fifth Circuit majority’s error is glaring, because
considering all of the evidence, including that relating to
Trevino’s FASD, it is obvious that “there is a reasonable
probability that at least one juror would have struck a
different balance.” Wiggins, 539 U.S., at 537.
III
The Fifth Circuit majority plainly misapplied our prece-
dents. Absent intervention from this Court to correct that
error, Trevino remains subject to a death sentence having
received inadequate consideration of his claim of ineffec-
tive assistance of trial counsel, and with no jury having
fairly appraised the substantial new mitigating evidence
that a competent counsel would have discovered. That
result is indefensible, especially where our failure to in-
tervene sanctions the taking of a life by the state.
I therefore respectfully dissent from the denial of certiorari.