IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-70011

RAUL CORTEZ

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:13-CV-83

Before DAVIS, JONES, and HAYNES, Circuit Judges.

PER CURIAM:*

Raul Cortez, a state prisoner sentenced to death in 2009 for the murder 

of Austin York, in connection with the murders of Rosa and Mark Barbosa,

York, and Matt Self during a robbery, seeks a certificate of appealability

(“COA”) with respect to the following claims: (1) ineffective assistance of 

counsel in the guilt-innocence phase for (a) failing to interview witnesses 

Gustavo Rodriguez and John Brown; and (b) failing to object to the State’s 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 14, 2016

Lyle W. Cayce

Clerk

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reference to and use of otherwise inadmissible polygraph evidence; and (2) a 

Brady1 violation premised on allegedly misrepresenting whether a plea 

agreement had been reached with witness Eddie Williams before Cortez’s trial. 

Concluding that reasonable jurists would debate the district court’s resolution 

of only one of these claims, we DENY a COA as to issues 1(a) and 2. Given the 

low threshold for a COA and the instruction to resolve close questions in death 

penalty cases in favor of granting a COA, we GRANT a COA on issue 1(b).

The facts of the offense are described in detail in the opinion of the Texas 

Court of Criminal Appeals, so we address them only briefly here. See Cortez v. 

State, No. AP-76101, 2011 WL 4088105, at *1–4 (Tex. Crim. App. Sept. 14, 

2011) (not designated for publication) (“Cortez I”). The State alleged that 

Cortez, his brother, Javier, and Eddie Williams conspired to steal from Rosa 

Barbosa who was believed to have access to money from her work as a cashier 

at a local check-cashing establishment and to keep some of that money in her 

home. During the attempted robbery at her home, the other three victims 

arrived unexpectedly. Ultimately, all four were shot and died. Cortez is 

alleged to have participated in all of the killings and to have personally shot 

one of the men. During the course of the investigation of the shootings, several 

people confessed, but their confessions were later deemed to be false. One of 

the key witnesses at Cortez’s trial was alleged co-conspirator, Eddie Williams.

In addition to denying relief on Cortez’s direct appeal, Cortez I, 2011 WL 

4088105, at *26, the Texas Court of Criminal Appeals denied habeas relief, Ex 

parte Cortez, No. WR-78666-01, 2013 WL 458197, at *1 (Tex. Crim. App. Feb. 

6, 2013) (not designated for publication) (“Cortez II”). Thereafter, he filed an 

application for federal habeas relief pursuant to 28 U.S.C. § 2254 in federal 

district court. In a lengthy and thorough opinion, the district court denied 

 

1 Brady v. Maryland, 373 U.S. 83 (1962).

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relief and also denied a COA. Cortez v. Director, No. 4:13-cv-00083, 2016 WL 

1228780 (E.D. Tex. Mar. 29, 2016) (“Cortez III”). Cortez then filed a timely 

notice of appeal the same day.

The standards for a COA in such a case are well settled. Cortez must 

demonstrate that his claims of constitutional violations are such that jurists of 

reason would debate the district court’s disposition of the same. Slack v. 

McDaniel, 529 U.S. 473, 483–84 (2000). We are charged with reviewing the 

case only through this prism and not deciding the ultimate merits. Miller-El

v. Cockrell, 537 U.S. 322, 337 (2003). In a case under § 2254, where the state 

determined the issues on the merits, we are required to give deference to the 

state court’s resolution. In determining whether to grant a COA, then, we 

must approach the debatability of the district court’s decision through the lens 

of AEDPA deference. See Cullen v. Pinholster, 563 U.S. 170, 190 (2011)

(AEDPA prescribes a highly deferential standard for federal courts reviewing 

habeas petitions challenging state court determinations on the merits). As 

well, we must assess the COA question in a case asserting ineffective 

assistance of counsel in light of the well-established standards of Strickland v. 

Washington, 466 U.S. 668 (1984), which are deferential to strategic decisions 

of counsel. However, in a death penalty case, doubts about granting a COA 

should be resolved in favor of a grant. Escamilla v. Stephens, 749 F.3d 380, 

387 (5th Cir. 2014). 

With these principles in mind, we turn to the allegations Cortez raises.

Witnesses. Cortez faults counsel for failing to interview Gustavo 

Rodriguez who allegedly saw “three black guys,” who, Cortez contends, could 

not have included him as he is a “light-skinned” Hispanic man. Additionally, 

some of the prior confessors were African American. Cortez contends that his 

attorneys did not interview Rodriguez. One of the attorneys, John Tatum, 

testified at the state habeas evidentiary hearing that one of his investigators 

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interviewed Rodriguez and decided that much of his testimony would 

corroborate that of Eddie Williams, whom Tatum sought to discredit as the

main witness against Cortez. Another of Cortez’s lawyers, Richard Franklin, 

echoed the concern that Williams’s testimony was otherwise uncorroborated 

but would have been corroborated by Rodriguez. Williams had told the police 

that all three men were dressed in black and wearing ski masks, with slits only 

for their eyes and mouth. Given counsel’s strategy of attacking the police 

investigation and proffering numerous other potential perpetrators, the 

attorneys did not want to do anything that would verify any of Williams’s story. 

The state court opinion concluded that the attorneys had investigated 

Rodriguez and made a strategic decision not to call him. The district court 

noted that claims of uncalled witnesses are not favored and that strategic 

decisions of counsel made after a thorough investigation are “virtually 

unchallengeable.” Cortez III, 2016 WL 1228780, at *10 (quoting Strickland, 

466 U.S. at 690–91).

We conclude that jurists of reason would not debate the district court’s 

conclusion that the state court’s decision was not contrary to, or an 

unreasonable application of, clearly established federal law as determined by 

the Supreme Court of the United States and did not result in a decision that 

was based upon an unreasonable determination of the facts in light of the 

evidence presented. See id. We DENY a COA on this claim.

Turning to the other witness at issue, John Brown, Cortez alleges that 

his counsel was ineffective in failing to call Brown and in relying solely on the 

State’s investigation of Brown in making that determination. Cortez contends 

that Brown would have provided an alibi for the time of the murders and that 

his attorneys should have interviewed him. Brown gave an affidavit that was 

inconsistent with previous statements to police that were very muddled as to 

the timing of Brown’s interactions with Cortez in the relevant time period. 

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Tatum testified that he watched the tape of Brown’s police interview,

concluded that Brown would make a “terrible witness,” and specifically 

discussed calling Brown with Cortez, who agreed with the decision not to call 

Brown. Franklin testified that Brown was the “only living human being who 

could put Cortez in [the city where the murders occurred] on the day of the 

murders.” The state court, after considering all of the evidence, concluded that 

Brown would have hurt Cortez’s case and also would have shown Cortez to be 

a remorseless person. Similar to Rodriguez, the district court assessed the 

cases regarding uncalled witnesses and strategic calls and concluded that the 

state court’s decision was not contrary to, or an unreasonable application of,

clearly established federal law as determined by the Supreme Court of the 

United States and did not result in a decision that was based upon an 

unreasonable determination of the facts in light of the evidence presented. Id.

at *20. Because we conclude that reasonable jurists would not debate the 

district court’s conclusion, we DENY a COA on this claim.

Polygraph. Cortez argues that his attorneys were ineffective for failing 

to object to the introduction of evidence that other potential suspects and star 

witness Williams were subjected to polygraph examinations. As to the former, 

the testimony further showed that after those examinations, the police no 

longer considered those people to be suspects. Cortez argues that this evidence 

is clearly inadmissible under state law and his counsel should have sought a 

motion in limine to keep this evidence out and/or objected when it was offered. 

For their part, his attorneys testified that they did not file a motion in limine, 

offering no reason for failing to do so but that once the matter was brought up 

at trial, they chose to forego objecting for strategic reasons.

A COA should be granted if jurists of reason could debate an issue; “a 

claim can be debatable even though every jurist of reason might agree, after 

the COA has been granted and the case has received full consideration, that 

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petitioner will not prevail.” Miller-El, 537 U.S. at 338. If we are in doubt about 

whether to issue the COA in a death penalty case such as this one, we should 

grant it. Escamilla, 749 F.3d at 387. Although we have considerable doubt 

about Cortez’s ultimate success on this claim, we conclude that it is debatable 

enough that it deserves encouragement to proceed further. We thus GRANT a 

COA on the question of whether Cortez’s counsel was constitutionally 

ineffective for failing to prevent or object to the admission of evidence about 

polygraph examinations of other suspects and witness Williams.

Brady. Cortez’s Brady claim is based upon his contention that Williams 

denied having any kind of “deal” with the district attorney, yet he was later 

sentenced only to twenty years after pleading guilty to three of the murders 

and reaching a plea deal with the state under which he will be eligible for 

parole in July of 2017. Undoubtedly, if the state had an agreement with 

Williams prior to his testimony and failed to disclose it to the defense, Cortez

would have a claim that would be debatable by jurists of reason. See United 

States v. Davis, 609 F.3d 663, 696 (5th Cir. 2010) (noting that a Brady violation 

occurs “when a cooperating witness denies having a plea agreement and the 

prosecutor fails to correct the misstatement” (citation omitted)). However, the 

state contends and offered evidence to the effect that the plea agreement with 

Williams was not reached until February of 2010, one year after Cortez’s trial. 

The lead prosecutor in the Cortez trial testified that he never met with 

Williams prior to his appearance as a witness at Cortez’s trial and did not 

instruct or authorize anybody in his office to do so. He testified that in 

discussions with Williams’s counsel prior to Cortez’s trial, the prosecutor 

specifically stated that he was not making any promise of leniency or plea 

recommendation in exchange for the testimony and that any such discussions 

would occur only after the Cortez trial. Williams’s attorney testified to the 

same basic facts. Cortez, in turn, argued that there “must have been a deal” 

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because no one would testify as Williams did without one. The state court 

concluded that there was no pre-existing agreement based upon the testimony 

of counsel and Williams himself. Accordingly, there was no violation because 

there was nothing to disclose. 

The district court noted that Cortez “uses the term ‘charade’ in disputing 

the state court findings, but he has not rebutted the presumption of correctness 

that must be accorded to the findings with clear and convincing evidence, as 

required by § 2254(e)(1).” Cortez III, 2016 WL 1228780, at *32. As in the 

district court, Cortez offers us only his belief and supposition that the 

prosecutor, Williams, and Williams’s attorney must be lying. We conclude that 

reasonable jurists would not debate the district court’s resolution of this claim 

and DENY a COA on this claim.

Accordingly, we GRANT a COA on the following issue: whether Cortez’s 

counsel was constitutionally ineffective for failing to prevent or object to the 

admission of evidence about polygraph examinations of other suspects and 

witness Williams. As to this issue, we note that it appears to have been fully 

briefed by the parties. Nevertheless, in order to insure complete briefing, we 

will allow for additional briefing now that a COA has been granted; however, 

repetition is to be avoided, and if the parties wish to rest upon the briefs 

already filed, they may do so. See Butler v. Stephens, 600 F. App’x 246, 248 n.4

(5th Cir. 2015). Any additional briefing on this issue should be filed by the 

petitioner within thirty days of this order, and the state may respond within 

thirty days thereof. Extensions will be granted only by order of this panel for 

exceptional circumstances shown.

All other relief is DENIED.

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