IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-70006

RAMIRO F. GONZALES, 

 Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:10-CV-165

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

Ramiro Gonzales seeks a certificate of appealability (“COA”) to appeal 

the district court’s denial of his federal habeas corpus petition, filed pursuant 

to 28 U.S.C. § 2254, challenging his state criminal conviction for capital murder 

and sentence of death. For the reasons that follow, we DENY his request.

* 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

April 10, 2015

Lyle W. Cayce

Clerk

 

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BACKGROUND

The facts surrounding Gonzales’s underlying crime are not in dispute. 

On January 15, 2001, Gonzales went to the home of his drug supplier, hoping 

to steal cocaine. Only his supplier’s girlfriend, Bridget Townsend, was at the 

home, so he tied her up and stole what cash he could find, but did not find any 

drugs. He then carried the bound Townsend to his pickup truck, drove her out 

to the large ranch on which he lived, retrieved a hunting rifle, and marched 

Townsend out into the deserted brush. When he started loading the rifle,

Townsend told Gonzales that she would give him money, drugs, or sex if he 

would spare her life. In response, Gonzales unloaded the rifle and took 

Townsend back to his truck, where he had sex with her. After she dressed, he 

reloaded the rifle, walked her back into the brush, and shot her. He left her 

body where it fell. Gonzales eventually confessed to his crimes.

At trial, a jury found Gonzales guilty of capital murder as charged. 

During the punishment phase, the prosecution called various witnesses in an 

effort to show that Gonzales did not feel remorse for his crime, had a history of 

bad conduct, did not suffer from mental illnesses, and would likely continue to 

be violent in prison. Among other witnesses, the prosecution called a woman 

whom Gonzales had abducted at knifepoint, brutally raped, and locked in a 

closet on the same ranch where he had earlier killed Townsend. It was while 

he was in custody for those crimes that Gonzales confessed to having murdered 

Townsend. The prosecution also called Dr. Edward Gripon, a forensic 

psychiatrist, who testified that there was a serious risk Gonzales would 

continue to commit acts of violence in the prison setting. Dr. Gripon 

acknowledged that predictions of future dangerousness were highly 

controversial and that the American Psychiatric Association had taken the 

position that such predictions are unscientific and unreliable, but maintained 

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that forensic psychiatrists as a whole believed that they were qualified to make 

such predictions.

The defense called a number of witnesses during the punishment phase

as well, focusing primarily on Gonzales’s family history and upbringing. 

Various witnesses testified that Gonzales was effectively abandoned by his 

mother and was left on a large ranch to be raised by his maternal 

grandparents, who often provided inadequate or no supervision throughout his 

childhood. Several of Gonzales’s relatives testified that Gonzales’s mother 

frequently drank alcohol, huffed spray paint, and abused drugs throughout her 

pregnancy and twice attempted to abort Gonzales. Numerous witnesses also 

detailed the physical and sexual abuse that Gonzales suffered throughout his 

childhood, including being kicked by his mother’s boyfriend, being sexually 

abused by an older male cousin, and having a sexual relationship with an 

eighteen-year-old woman when he was twelve or fourteen years old. 

The defense also called Dr. Daneen Milam, a neuropsychologist and sex 

offender treatment provider, to testify as to Gonzales’s mental health. Dr. 

Milam explained that she had conducted a ten-hour neuropsychological 

examination of Gonzales; reviewed “literally stacks of records,” including 

school records, probation records, and incident reports; went to the ranch on 

which Gonzales grew up, where she spoke with his grandparents, his cousin, 

and the ranch manager; and reviewed all of the interviews conducted by the 

defense team’s mitigation investigator. Dr. Milam testified that from her 

evaluation, she found no evidence of brain damage, “none whatsoever.” She 

said that Gonzales’s IQ and brain were within normal limits, in spite of all of 

his and his mother’s drug use. Dr. Milam stated that educational records 

indicated Gonzales was developmentally delayed but that he started off with a 

normal brain. She opined that Gonzales “basically raised himself,” which led 

him to have the emotional maturity of someone who is thirteen or fourteen 

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years old. Dr. Milam also testified that some of the tests she attempted to 

conduct on Gonzales were invalid because he clearly tried to come across as 

mentally ill. She was able to conclude, however, that while Gonzales exhibited

some schizotypal and antisocial personality features, his primary diagnosis 

was “reactive attachment disorder.” Dr. Milam explained that reactive 

attachment disorder is due entirely to environmental factors wherein a young 

child was not able to form a stable, emotional bond with any adult and leads 

to being immature, insecure, solitary, and manipulative later in life. Dr. 

Milam next discussed Gonzales’s mother’s drug use while pregnant with 

Gonzales and the abuse Gonzales suffered as a child. Dr. Milam testified that 

Gonzales was probably in the top 10% of emotionally damaged children and 

now likely could be diagnosed with antisocial personality disorder, but stated 

that Gonzales was not mentally ill, had a normal IQ, and was not mentally 

retarded.

In their closing argument during the punishment phase, defense counsel 

focused on the evidence that Gonzales essentially raised himself; was exposed 

to alcohol, marijuana, and paint fumes in utero; was sexually abused by a 

cousin starting at the age of four or six; started drinking and doing drugs at 

eleven; was sexually abused by an older woman at twelve or thirteen; and was 

sentenced to life in prison at just eighteen1. In its rebuttal argument, the 

prosecution referenced Dr. Gripon’s testimony as to future dangerousness and 

suggested that Gonzales’s mother’s use of drugs while pregnant with Gonzales 

was meaningless because there was no evidence that it affected him.

1 After murdering Townsend but before being charged with the murder, Gonzales 

kidnapped and raped another woman. He was sentenced to life in prison for his crimes 

against the second woman and confessed to having murdered Townsend while he was serving 

that sentence.

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The jury unanimously made the findings required for capital 

punishment in Texas, and the judge entered a sentence of death. On direct 

appeal, Gonzales argued that the prosecution’s expert should not have been 

permitted to give an opinion as to future dangerousness. Gonzales did not 

argue that trial counsel should have called more expert witnesses. The Texas 

Court of Criminal Appeals (“CCA”) affirmed the conviction and sentence, 

Gonzales v. State, No. AP-75540, 2009 WL 1684699, at *1-3 (Tex. Crim. App. 

June 17, 2009), and the United States Supreme Court denied certiorari, 

Gonzales v. Texas, 559 U.S. 942 (2010).

In his first state habeas corpus application, Gonzales filed an eight-page 

petition raising four claims, none of which is now before this Court. The CCA 

denied relief. Ex parte Gonzales, No. WR-70969-01, 2009 WL 3042409, at *1

(Tex. Crim. App. Sept. 23, 2009). Gonzales next filed a federal habeas petition, 

but soon obtained a stay and abeyance so that he might first exhaust additional

claims in state court. In his second state habeas petition, Gonzales raised six 

issues, including that his trial counsel were ineffective for failing to obtain 

experts to present mitigating evidence that Gonzales suffered from Fetal 

Alcohol Spectrum Disorder (“FASD”) and the effects of “sexual, emotional, 

physical, and biological abuse,” as well as that the trial court erred in allowing 

expert testimony as to Gonzales’s future dangerousness. The CCA dismissed 

the petition as an abuse of the writ and dismissed a motion for funding of 

expert assistance. Ex parte Gonzales, No. WR-70969-01, 2012 WL 340407, at 

*1 (Tex. Crim. App. Feb. 1, 2012).

Gonzales then filed an amended federal habeas petition in district court, 

raising nine numbered claims. The district court denied all claims and denied 

a COA. The district court determined that Gonzales’s ineffective assistance of 

counsel claims were procedurally defaulted, but also concluded that they would 

fail on the merits. 

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STANDARD OF REVIEW

In a habeas corpus appeal, this Court “review[s] the district court’s 

findings of fact for clear error and its conclusions of law de novo, applying the 

same standards to the state court’s decision as did the district court.” Lewis v. 

Thaler, 701 F.3d 783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 

708, 713 (5th Cir. 2004)). Gonzales is entitled to a COA if he makes “a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). If the district court 

denies 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” or “that the issues presented were 

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 

529 U.S. 473, 484 (2000) (internal quotation marks omitted). “When the 

district court denies a habeas petition on procedural grounds without reaching 

the prisoner’s underlying constitutional claim, a COA should issue when the 

prisoner shows, at least, that jurists of reason would find it debatable whether 

the petition states a valid claim of the denial of a constitutional right and that 

jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Id. “Each component . . . is part of a threshold 

inquiry, and a court may find that it can dispose of the application in a fair and 

prompt manner if it proceeds first to resolve the issue whose answer is more 

apparent from the record and arguments.” Id. at 485. “[A]ny doubt as to 

whether a COA should issue in a death-penalty case must be resolved in favor 

of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).

DISCUSSION

I. Ineffective Assistance of Counsel

Gonzales argues that his trial counsel were ineffective for failing to 

obtain proper experts to present mitigation evidence of FASD and of sexual, 

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emotional, physical, and biological abuse.2 Gonzales raised his ineffective 

assistance of trial counsel claims for the first time in his second state habeas 

petition and the CCA denied them as an abuse of the writ under Article 11.071

of the Texas Code of Criminal Procedure. We have consistently held that the 

Texas abuse-of-the-writ statute is a valid state-law procedural ground that 

forecloses federal habeas review where, as here, there is no indication that the 

CCA’s order relied on federal law in dismissing the petition. See McGowen v. 

Thaler, 675 F.3d 482, 499 (5th Cir. 2012); Coleman v. Quarterman, 456 F.3d 

537, 542 (5th Cir. 2006). Even so, the Supreme Court has held 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 

collateral proceeding, there was no counsel or counsel in that proceeding was 

ineffective.” Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). The Supreme 

Court later made clear that this rule applies to habeas petitions stemming from 

Texas-court convictions. Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013).

Applying Martinez in the COA context, this Court has said that “to 

succeed in establishing cause, the petitioner must show (1) that his claim of 

ineffective assistance of counsel at trial is substantial—i.e., has some merit—

and (2) that habeas counsel was ineffective in failing to present those claims 

in his first state habeas proceeding.” Garza v. Stephens, 738 F.3d 669, 676 (5th 

Cir. 2013) (citing Martinez, 132 S. Ct. at 1318). As discussed below, Gonzales 

has failed to raise a substantial claim of ineffective assistance of trial counsel 

and therefore cannot show that his procedural default is excused. 

2 In his application for a COA before the district court, Gonzales also stated that he 

was denied effective assistance of trial counsel when his trial counsel provided the 

prosecution with unspecified “privileged work product.” This argument is not included in 

Gonzales’s brief on appeal and is therefore abandoned. See United States v. Olano, 507 U.S. 

725, 731 (1993).

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As set out in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner 

establishes ineffective assistance of counsel if he can show that his counsel’s 

performance was “deficient,” meaning that counsel’s “representation fell below 

an objective standard of reasonableness,” and that counsel’s “deficient 

performance prejudiced the defense.” Id. at 687-88. “[S]trategic choices made 

after thorough investigation of law and facts relevant to plausible options are 

virtually unchallengeable; and strategic choices made after less than complete 

investigation are reasonable precisely to the extent that reasonable 

professional judgments support the limitations on investigation.” Id. at 690-

91. There is no strategic decision with respect to sentencing strategy, however,

where counsel choose to abandon their investigation at an unreasonable 

juncture. See Wiggins v. Smith, 539 U.S. 510, 527-28 (2003). “In investigating 

potential mitigating evidence, counsel must either (1) undertake a reasonable 

investigation or (2) make an informed strategic decision that investigation is 

unnecessary.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013) (per 

curiam). “[U]nder a Strickland analysis, trial counsel must not ignore 

pertinent avenues of investigation, or even a single, particularly promising 

investigation lead.” Id. at 390 (internal quotation marks and citations 

omitted).

There is no evidence suggesting that Gonzales’s trial counsel conducted 

less than a reasonable investigation. The record makes clear that Gonzales’s

trial counsel obtained the services of a mitigation specialist, an investigator, a 

neuropsychologist, and a prison expert. These experts and specialists 

conducted numerous interviews with Gonzales, his family members and 

acquaintances, performed psychological evaluations, and reviewed substantial 

records, such as school, probation, police, and jail records. The defense team 

conferred with each other and coordinated their findings. The evidence that 

Gonzales suffered emotional, physical, and sexual abuse, as well as that his 

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mother drank alcohol and used drugs while pregnant with him, was 

extensively presented to the jury by both lay and expert witnesses. 

1. FASD

As regards FASD specifically, defense counsel presented substantial 

evidence at trial that Gonzales’s mother abused alcohol, marijuana, and 

inhalants while pregnant with Gonzales, which was known to trial counsel and 

Dr. Milam, the neuropsychologist that defense counsel secured. Nevertheless, 

based on her evaluation of Gonzales and her extensive record review, Dr. 

Milam concluded that “[t]here was no brain damage; none whatsoever,” that 

Gonzales started out with a normal brain despite school records showing that 

he was developmentally delayed, and that “[h]is IQ is within normal limits; his 

brain is within normal limits, in spite of all the drugs.” Now, Gonzales argues 

that his trial counsel were ineffective because the tests that Dr. Milam 

conducted were “suboptimal” and the scope of her inquiry was “less than 

adequate,” and therefore counsel should have secured an FASD expert. 

Gonzales’s habeas counsel obtained an FASD expert who preliminarily 

concluded that “FASD should be HIGHLY SUSPECTED and that a thorough 

diagnostic evaluation to address this should be undertaken.” Importantly, 

Gonzales does not present evidence that he actually suffers from FASD. 

Instead, he presents an expert declaration concluding that “there is basis for 

further evaluation to determine definitively whether FASD is present or not” 

and argues that several additional tests should be conducted. The district and 

state courts denied Gonzales’s various requests for funding to have those 

additional tests run, and so Gonzales is left only with an affidavit indicating 

that he may have FASD.

“To prevail on an ineffective assistance claim based upon uncalled 

witnesses, an applicant must name the witness, demonstrate that the witness 

would have testified, set out the content of the witness’s proposed testimony, 

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and show that the testimony would have been favorable.” Gregory v. Thaler, 

601 F.3d 347, 352 (5th Cir. 2010). A petitioner “who alleges a failure to 

investigate on the part of his counsel must allege with specificity what the 

investigation would have revealed and how it would have altered the outcome 

of the trial.” Id. (quotation marks and citation omitted). Since there is

insufficient persuasive evidence that Gonzales actually suffers from FASD, his 

argument is that he has made a substantial showing of ineffective assistance 

of trial counsel because his trial attorneys did not seek out an expert who would 

have testified that Gonzales may have FASD. Inconclusive new evidence that 

a petitioner may or may not suffer from some sort of cognitive dysfunction does 

not generally establish an ineffective assistance of counsel claim. See Smith v. 

Quarterman, 515 F.3d 392, 405 (5th Cir. 2008). 

Trial counsel chose to offer the testimony of a qualified neuropsychologist 

who, after extensive testing, concluded that Gonzales had no brain damage but 

exhibited some schizotypal and antisocial personality features and suffered

from reactive attachment disorder. There is no evidence that trial counsel’s 

reliance on Dr. Milam was unreasonable. See Harrington v. Richter, 562 U.S. 

86, 107 (2011) (“Counsel was entitled to formulate a strategy that was 

reasonable at the time and to balance limited resources in accord with effective 

trial tactics and strategies.”); Couch v. Booker, 632 F.3d 241, 246 (6th Cir. 2011) 

(“Trial counsel may rely on an expert’s opinion on a matter within his expertise 

when counsel is formulating a trial strategy.”). Gonzales has not made a 

substantial showing that his counsel were ineffective for failing to secure an 

FASD expert. 

2. Abuse

Gonzales next claims that his trial counsel were ineffective for failing to 

secure an abuse expert. He states that “[n]o expert addressed the synergy of 

the effects of [his] sexual victimization, emotional and physical abuse, neglect 

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and rejection by his mother and caregivers, exposure to alcohol and other drugs 

in utero, and his own substance abuse problem with the fact that he was only 

72 days past his 18th birthday at the time of the offense in this case.” Gonzales 

does not identify an expert that trial counsel should have called or specify 

precisely how such an expert’s testimony would have differed substantially 

from that provided by Dr. Milam at trial. Gonzales’s claim of ineffective 

assistance of trial counsel for failure to call a particular witness requires a 

showing of what that witness would have testified to if called. See Gregory,

601 F.3d at 352-53. Gonzales has made no such showing. 

Additionally, Gonzales does not argue that the jury did not hear about 

his “sexual, emotional, physical, biological abuse,” instead claiming that trial 

counsel should have called an expert to inform the jury “how the presence of 

all of these issues impacted” Gonzales. Counsel did call an expert—Dr. 

Milam—to explain the cumulative effect of the abuse and neglect that Gonzales 

suffered throughout his life. Trial counsel explained to the jury that “[a]t the 

very end of [the testimony of the defense’s] witnesses it will all be wrapped up 

together and tied together by an expert in the field of psychology.” As 

promised, after eliciting first-hand testimony about Gonzales’s deeply troubled 

upbringing, trial counsel called Dr. Milam to give her expert opinion as to the 

psychological consequences of the neglect, abuse, and drug use on Gonzales. 

Dr. Milam testified that Gonzales (a) basically raised himself; (b) was 

developmentally delayed; (c) is immature; (d) is paranoid; (e) suffers from 

reactive attachment disorder; (f) has antisocial personality features; (g) has 

schizotypal personality features; (h) abused drugs from a young age; and (i) 

was probably in the top 10% of emotionally damaged children. Dr. Milam 

testified that many, if not all, of these issues were connected with his mother’s 

use of drugs while pregnant, his severely neglected childhood, and the 

pervasive emotional, physical, and sexual abuse he suffered throughout his 

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childhood. Beyond Dr. Milam’s extensive testimony, additional testimony by 

an abuse expert would most likely have been cumulative, and Gonzales does 

not show otherwise. See Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir. 

2007) (“Counsel’s decision not to present cumulative testimony does not 

constitute ineffective assistance.”). Accordingly, Gonzales has not presented a 

substantial claim that his trial counsel were constitutionally ineffective. As a 

result, Gonzales’s state habeas attorney was not ineffective for failing to argue 

ineffective assistance of trial counsel, and Gonzales therefore cannot overcome 

the procedural default of his ineffective assistance of trial counsel claim. See 

Garza, 738 F.3d at 676.

II. Testimony as to Future Dangerousness

Gonzales maintains that he is also entitled to a COA because the district 

court improperly permitted the prosecution to present expert witness 

testimony from Dr. Gripon as to future dangerousness during the mitigation 

phase of his trial. Gonzales argues that the State failed to establish that Dr. 

Gripon’s testimony was sufficiently reliable to be admissible as required by

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).3 Gonzales 

properly raised his Daubert claim before the CCA on direct appeal and the CCA 

rejected the claim on the merits. Due to binding precedent, Gonzales cannot 

show that jurists of reason would debate whether the state court’s denial of his 

claim was unreasonable. 

In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court held that 

psychiatric testimony predicting a capital defendant’s future dangerousness is 

not per se improper. Id. at 898-99. Gonzales’s arguments to the contrary 

notwithstanding, our court has consistently held that Daubert did not overrule

3 Although the State discerned five separate points of error raised by Gonzales as to 

expert testimony regarding future dangerousness, all of Gonzales’s arguments focus 

exclusively on the reliability of Dr. Gripon’s future dangerousness testimony under Daubert.

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Barefoot for the proposition that expert testimony regarding future 

dangerousness is permissible. See, e.g., Williams v. Stephens, 761 F.3d 561, 

571 (5th Cir. 2014) (maintaining that expert future dangerousness testimony 

is permissible under Barefoot and stating that petitioner’s “contention that the 

Supreme Court may overrule Barefoot in light of Daubert is completely 

speculative”); Roberts v. Thaler, 681 F.3d 597, 608-09 (5th Cir. 2012) (“Barefoot

stands for the proposition that expert testimony predicting a defendant’s 

future dangerousness is not per se inadmissible.”); Flores v. Johnson, 210 F.3d 

456, 456 n.1 (5th Cir. 2000) (per curiam). Because expert evidence predicting 

a capital defendant’s future dangerousness is permissible under Barefoot, 

jurists of reason would not debate whether the CCA reasonably determined 

that Dr. Gripon’s testimony was properly allowed. 

CONCLUSION

For the foregoing reasons, Gonzales has not made the showing required 

to obtain a COA and his motion for a COA is therefore DENIED.

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