### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 70015

FABIAN HERNANDEZ,

Petitioner

- Appellant

v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent

- Appellee

Appeal from the United States District Court f

or the Western District of Texas USDC No. 3:15

- CV

- 51

Before CLEMENT, GRAVES, and HIGGINSON, Circuit Judges

. PER CURIAM: *
Fabian Hernandez was convicted in Texas state court and sentenced to death for murdering his wife and a n other ma n with her

. He sought post

conviction relief in state court , alleging numerous points of error. The Texas Court of Criminal Appeals (“TCCA”) reje cted his claims on their merits. Hernandez then turned to the federal courts

. The dis trict court also rejected

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 29, 2018

Lyle W. Cayce Clerk Case: 17-70015 Document: 00514700725 Page: 1 Date Filed: 10/29/2018No. 17

- 70015

2 Hernandez’s claims and declined to iss ue a certificate of appealability (“COA”). He now seeks a COA fro m this court on two issues: (1) whether his appellate counsel provided in e f f

ective assistance by failing to raise certain arguments on

a ppeal; and (2) whether the district court violated his Fifth and Eighth Amendment rights by ordering him to s ubmit to a comprehensive mental

health exam pe rformed by t he State’s expert. Finding no debate over the district court’s resolution of these is sues , we deny Hernandez’s COA request s

. I

. Hernandez’s COA request s are governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). We will grant a COA under AEDPA only if Hernandez can make a “ substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is met if “reasonable jurists would find the district court’ s assessment of th e constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In a death

penalty case, we resolve any doubt s over whether a COA is proper in the petitioner’s favor

. Pippin v. Dretke , 434 F.3d 782, 787 (5th Cir. 2005).
In deciding Hernandez’s COA ques tion s , we must keep in mind the extraordinary deference that AED PA places around the TCCA’s conclusion s of law and findings of fact. For it is through this deferential lens that the district court evaluated Hernandez’s constitutional cla ims. Under AEDPA , a federal
court cannot grant habeas relief to a state prisoner on any claim adjudicated on its merits by the state habea s court unless the state court’s deci sion “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . or . . . was based on an unreasonable determination of the facts in light of the evidence pres ent ed in the State court proceeding

. ” 28 U.S.C. § 2254(d)(1)

– (2)

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3 A decision is contrary to federal law when it either re aches a conclusion opposite to that of the Supreme Court on a question of law, or arrives at an opposite result on facts that are mater ially indistinguishable from those confront ed by a relevant Supreme Court c ase. Sprouse v. Stephens , 748 F.3d 609, 616 (5th Cir. 2014 ). And a decision involves an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Perez v. Cain , 529 F. 3d 588, 594 (5th Cir. 2008) (quoting Williams v. Taylor , 529 U.S. 362, 407

– 08 (2000) )

. T he state court ’s decision must not just be wrong; it m ust be
unreasonable

— meaning no “f airminded jurist” could possibly agree with it. Harrington v. Richter , 562 U.S. 86, 101 (2011). As for the state court’s factual finding s , they are presumed correct unless rebutted by clear and c onvincing evidence establishing tha t the finding s are objectively unreasonable. Brown v. Dretke , 419 F.3d 365, 371 (5th Cir. 2005) (citing 28 U.S.C. § 2254(e)(1)). To meet this high standard, Hernandez must show that a ‘“reasonable fact finder must conclude ’ that the state court’s
determinat ion of the facts was unreasonable.” Blue v. Thaler , 665 F.3d 647, 655 (5th Cir. 2011) (quoting Rice v. Collins , 546 U.S. 333, 341 (2006)). It is not enough that the federal habeas court would have reach ed a different co nclusion in the first instance. Id.
I I. Hernandez contends that his appellate counsel was ineffective by failing
to argue that the trial court erred by : (1) ruling in a pretrial hearing that Dr. Coon s

— the State’s mental

- health expert

— wo uld be allowed to opine on Hernandez’s future dangerous ness during the punishment phase ; and (2) not allowing Dr. AuBuchon

— Hernandez’s inmate

- class ific ation expert

— to express a general opinion on He rnandez’s future dangerousness to the community

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4 To establish an ineffective

- assistance

- of

- counsel claim, Hernand ez must clear the high Strickland bar

— that is, he must prove both that his counsel’s performance was deficient and that he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 687 (1984). In the appeals context, this means Hern andez must fir st show that his counsel failed to raise “a particular nonfrivolous issue” that “was clearly stronger than issues counsel did present.” Dorsey v. Stephens , 720 F.3d 309, 320 (5th Cir. 2013) (quoting Smith v. Robbins 528 U.S. 259, 288 (2000)). Counsel is required to raise only “[s]olid, meritorious arguments based on directly controlling precedent

. ” Id. (alteration in original) (quoting United Sates v. Conley , 349 F.3d 837, 841 (5th Cir. 2003) ). Hernandez must then show “a reasonable probability that, but for his counsel’s unreasonable failure to [raise an issue], he would have prevailed on his appeal.” I d. at 321 (alteration in original) (quoting Smith , 528 U.S. at 285 ).
A

. Turning to Hernandez’s first claim, we first note that Dr. Coon s is a

p sychiatrist and a lawyer. He has testified numerous times on the subject of future dangerousness in other capital murder trials. In a pretrial hearing, Hernandez argued that Dr. Coon s ’s methodology was unreliable. But t he tria l court disagreed , holding that Dr. Coon s could testify as to Hernandez’s future
d angerousne ss during the punishment phase. T he State , however, never called
him to the stand

— largely because Hernandez refused to submit to Dr. Coons’s psychiatric examination

. On direct appeal, Hernand ez’ s appellate counsel did
not challenge the trial court’s pretrial ruling. 1 In his state

- habeas case, Hernandez argued that his app ellate counsel should have asserted the issue of Dr. Coon s ’s methodology on direct appeal.

1 Before Hernandez’s appellate counsel filed his brief, the TCCA held that Dr. Coons’s methodology was in fact unreliable. See Coble v. Texas , 330 S.W. 3d 253, 270

– 80 (Tex. Crim. App. 2 010). But for reasons explained , this does not affect our analysis. Case: 17-70015 Document: 00514700725 Page: 4 Date Filed: 10/29/2018No. 17

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5 But the TCCA held that because Dr. Coons did not testify, his hypothetical opinion did not contribute to the jury’s verdict on Hernandez’s future dangerousness. Thus, it denied Hernandez’s ineffective

- assistance claim since he could not show how this issue would have resulted in reversal on appeal

. The district court found that the TCCA properly applied Strickland

. We agree. Under Texas law, any error in a pretrial evidentiary ruling is rendered

moo t if the evidence is nev er a dmitted at trial. See Herron v. Texas , 86 S.W.3d 621, 62 8 (Tex. Cri m . App. 2002) (declining to reverse the district court even tho ugh its ruling on the admissibility of a confession was wrong because the confession was never admitted). 2 This is so even in capital cases. For example,
in Saldano v. Texas , the defendant wished to call his mental

- health expert to testify that he had suffered psychological det erioration while on death row. 232 S.W.3d 77 , 82

– 83 (Tex. Crim. App. 2007). In a pretrial ruling, the trial court held that the defendant could do so only if he first submitted to an examination by the prosecutor’s mental

- health expert . H e refused

. Id. at 83

. On appeal, the defendant attempted to challenge that pretrial ruling, but the TCCA ruled that
to b e entitled to appellate review, the defendant “was required to submit to the [psychiatric] examination and suffer any actual use by the State of the results of t[he] examination. ” Id. at 90

. Without doing so, any appellate review would be “practically i mpo ssible” and “wholly speculative .” Id.
Herron and Saldano are fatal to Hernandez’s claim. Because Dr. Coon s never testified , evaluating any harm caused by the trial court’s ru ling is speculative and not subject to appellate review. If Hernandez wanted to

preserve his challenge to Dr. Coons’s methodology , the n , as in Saldan o , he was

2 Th is is also a common principle of federal evidentiary law. See Luce v. United States , 469 U.S. 38, 41

– 43 (1984) (holding that an in limine ruling permitting a defendant’s impeachment by prior conviction was not reviewable because the defendant never took th e stand). Case: 17-70015 Document: 00514700725 Page: 5 Date Filed: 10/29/2018No. 17

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6 required to submit to the examination and suffer actual prejudice from Dr. Coons’s testimony. Because he did not do so , appellate counsel acted

rea sonabl y by choosing not to raise the argument on appeal

— an argument that would have been frivolous under controlling law

. Thus, we conclude that no reasonable juris t could debate the distric t court’s determination that the TCCA did not unreasonably apply Stric kland to this claim. A COA is denied.
B. Hernandez’s second ineffective

- assistance claim ov er the exclusion of Dr. AuBuchon’s future

- dangerousness opinion fares no better. During the sentencing phase, Dr. AuBuchon testified for Hernandez

. According to the doctor , Hernandez would not be a danger to the prison population because he would be placed in a maximum

- security prison unit in segregation d etention due to his membership in the Barrio Aztec a prison gang. In the segregation unit, he would be isolated from other inmates 24 hours a day. Put simply , prison officials would be able to control him. At the end of re direct examination, Hernandez’s trial attorney asked Dr. AuBuchon if Her nandez would “ commit criminal acts of violence that
constitute a continu ing threat to society.” The prosecutor objected, arguing that Dr. AuBuchon was not qualified to give a general opinion on Hernandez’ s fu ture dangerous ness

. After voir dire, the trial co urt sustained the prosecutor’s objection. Moving on , Hernandez’s trial counsel called Dr. Cunningham, a forensic psychologist who state d that Hernandez had a low probability of committing future acts of violence while in prison

. On direct appeal, Hernandez’s appellate counsel did not argue that the trial court should have al l owed Dr. AuBuchon to answer the final redirect question. In the state

- habeas proceeding, t he TCCA held that appellate counsel Case: 17-70015 Document: 00514700725 Page: 6 Date Filed: 10/29/2018No. 17

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7 did not render ineffective assistance by not raising this claim. The district court agreed; as do we

. Two weeks before Hernandez ’s appellate brief was due , the TCCA , in a separate case, rejected an identical argument to the one Hernandez now argues his appellate counsel should have raised

. In Renteria v. Texas , the trial court refused to let Dr. AuBuchon testify whether “there was a probability that [the defendant] will commit criminal acts of violence so that he constitutes [a] continuing threat to society in the future.” 2011 WL 1734067, at *40 (Tex. Crim. App. 2011) (unpublished) ( second alteration in original). Assuming error,

t he TCCA still found that the trial court’s ruling was harm less given the other testimony allowed : Dr. AuBuchon had already stated that he believe d the defendant would not be a future danger in prison , and Dr. Cunningham said
tha t “there was ‘not a probability ’ that [the defendant ] would commit acts of
violence in prison

. ” Id. Hernandez ’s appellate counsel was also on the appellate team in
Renteria

. G iven that fact, it was reasonable for him not to raise the same argument again in Hernandez’s case. In both cases, Dr. AuBuchon was allowed to testify that he did not think the defendants would commit acts of violence in prison . In both cases, the trial court refused to let Dr. AuBuchon opine generally on the defendant s ’ futu re dangerous ness outside of prison

. And in both cases, D r. Cunningham testified that the defendants had a low probability of committing future acts of violence in prison

. We rarely see such identical facts

. 3

3 Hernandez argues that Renteria should be ignored because it is not precedential. While true, it does not change the fact that his appella te counsel would have reasonably looked to Renteria for guidance in deciding which arguments to press on ap peal. A ppellate counsel could have reasonably concluded that the TCCA would again reject the argument

— especially given the close temporal proximity and recurring actors

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8 As with the first ineffective

- assistance cl aim, we hold that no reasonable jurist could debate the district court’s conclusion that the TCCA did not unreasonably apply Strickland to this claim. A COA is properly denied

. III

. Hernandez next argues that the trial court violated his Fifth and Eighth
A mendment rights by refusing to allow his mental

- health expert , Dr. Natalicio, to testify on Hernandez’s diminished mental capacity unless he first submitted
to a n examination performed by the State ’s mental

- health expert , Dr. Coons

. Specifically , he takes issue with the trial court’s refusal to limit the scope of Dr. Coons ’s potential examination. It is well established that when a criminal defendant “neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence ,” his right against self

- incrimination under the Fifth Amendment protects him fro m a compulsory examinat ion by a hostile psychiatrist. Estelle v. Smith , 451 U.S. 454, 468 (1981). But when “a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him.” Kansas v. Cheever , 571 U.S. 87, 94 (2013). In other words, by relying on the testimony of a mental

health expert who has examined him , the defendant waives his Fifth Amendment privilege. Nonet heless, the scope of that waiver is “limited to t he issue raised by the defense ,” and any testimony about the court

- ordered psychiatric evaluation cannot go beyond this limited rebuttal purpose. Saldano
v. Davis , 701 F. App’x 302, 309

– 10 (5th Cir. 2017) (per curiam); see also Cheever , 571 U.S. at 97 ( noting that ‘“[n]othing’ in our precedents ‘ suggests that a defendant opens the door to the admission of psy chiatric evidence on future dangerousness by raising an insanity defense at the guilt stage of the Case: 17-70015 Document: 00514700725 Page: 8 Date Filed: 10/29/2018No. 17

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9 trial ’ ” (alteration in original) (quoting Powell v. Texas , 492 U.S. 680, 685

– 86 n.3 (1989) (per curiam) )).
Her nandez ’s claim depends o n two factual premises. Premise one: Dr. Natalicio ’s p roposed testimony on Hernandez’s diminished mental capacity was only relevant to mitigation

. Premise two: t o form his opinion , Dr. Natalicio did not interview Hernandez; he relied only on the standardize d test s he administere d and background i nformation gained from other s

. Based on these factual premises, Hernandez argues that the trial court erred by not similarly limiting the scope and methodology of Dr. Coon s ’s potential examination and allowing a comprehensive exam that could venture into the future

dangerousness issue. Hernandez’s legal conclusion depends on the corr ectness of the factual premises. But the TCCA rejected both

. Because of this, he must show that the TCCA ’s rejection was not merely wrong , but objectively un reasonable by clear and convincing evidence

. This, he fails to do.
B y Dr. Natalic i o’s own testimony , h e did far more than administer
standardized tests ; h e interviewed Hernandez over a wide var iety of subjects for over seven

- and

- a
- h alf hours. By his own admissio n, he was not hired merely to perform an “ intellectual assessment.” Given these statements , the TCCA’s
conclusion

— that Dr. Natalicio ’s evaluation was more comprehensive than Hernandez would have us believe

— was not unreasonable. Neith er was its
conclusion that Dr. Natalicio’s testimony about Hernandez’s diminished mental capacity was relevant not only to mitigation

— as Hernandez sugges ts

— b ut also to the future

- dang erousness issue. See Davis v. Texas , 313 S.W.3d 317, 352 (2010) (rejecting the “ hairsplitting distinction” between the issues of diminished capac ity and future dangerousness). For example, a low Case: 17-70015 Document: 00514700725 Page: 9 Date Filed: 10/29/2018No. 17

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10 intelligence level could make Hernandez less likely to carry out a violent plan , or conversely , it could reduce his control over his emotion s

. 4
Because these factual findings are reasonable , Hernandez ’s legal argument fails

. If Dr. Natalicio conduct ed extensive interviews , and if mental capacity is relevant to future dangerousness, then it was reasonable for the
T C C A to conclude that the trial court properly refused to limit the scope of Dr. Coon s ’ s examination in the manner Hernandez wanted. Thus, n o reasonable juris t could debate that the TCCA’s resolution of
this claim was reasonable

. A COA is denied.
IV. For the for e going reasons , all of Hernandez’s COA request s are DENIED

.

4 Concluding that a defendant’s diminished mental capacity is relevant to future dangerousness could be classified as a legal conclusion , not a factual one. We do not think so. B ut even if we did, Hernandez has pointed to no Supreme Court case (and we could not find one) holding that diminished ca pacity is not re lated to future dangerousness. Thus, treating diminished capacity as relevant to fu ture dangerousness is not contrary to, nor an unreasonable application of , federal law. Case: 17-70015 Document: 00514700725 Page: 10 Date Filed: 10/29/2018