United States Court of Appeals

for the Fifth Circuit ____________

No. 12-70035

____________

Moises Sandoval Mendoza, 

Petitioner—Appellant, 

versus

Bobby Lumpkin, 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. 5:09-CV-86

______________________________

Before Richman, Chief Judge, and Higginbotham and

Southwick, Circuit Judges.

Per Curiam: 

Moises Sandoval Mendozawas convicted of capital murder by a Texas

jury and sentenced to death. He later filed an application in district court for 

habeas relief. In an earlier appeal, because his initial counsel had a conflict of 

interest, we remanded for appointment of additional counsel and further development of potential claims of ineffective trial counsel. An amended application was filed, but the district court rejected all the new claims. 

We AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

August 31, 2023

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

Moises Mendoza was convicted and sentenced to death in 2005. 

Since his conviction, he has sought relief from the judgment entered against 

him on direct appeal and in numerous filings for writs of habeas corpus.

Mendoza’s victim was Rachelle Tolleson. She lived in Farmersville, 

a small town in northeast Texas. See Mendoza v. State, No. AP-75,213, 2008 

WL 4803471, at *1 (Tex. Crim. App. Nov. 5, 2008). On March 17, 2004, 

after visiting her mother’s home, Ms. Tolleson and her five-month-old

daughter, Avery, arrived at their house around 10:00 p.m. The next morning, 

Ms. Tolleson’s mother went to the house, as was common practice. The 

back door was wide open. The bedroom was in chaotic disarray, with the 

mattress and box springs askew, the headboard broken, other furniture out of 

place, and papers and other objects scattered around the room. Baby Avery 

was on the bed alone. See id.

Police were summoned, and their investigation identified Mendoza as 

a prime suspect. Less than a week before the murder, Mendoza had been at 

the Tolleson home for a party of about fifteen people. Ms. Tolleson and 

Mendoza spoke a few times, but she told a friend she had no interest in him. 

Certain other evidence made police suspicious of Mendoza. See id. at *1–2.

Mendoza was arrested and confessed to killing Ms. Tolleson. He alleged that she had willingly gone with him in his truck, even though that 

would mean leaving her six-year-old daughter home alone. He then contended that while in his truck, he choked her, causing her to pass out. He 

later drove to a field behind his own home, had sexual intercourse with her, 

and choked her again. Mendoza then dragged her into the field, where he 

choked her more until she appeared dead. He stabbed her in the throat with 

a knife to assure her death. After his first interview with police, he moved 

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her body to a more remote location and burned it. Someone found the body 

six days later. See id. at *2.

It was undisputed at trial that Mendoza had murdered Tolleson. To 

support capital murder, the indictment charged Mendoza with having committed the murder in the course of a kidnapping and aggravated sexual assault. The jury found he had committed those offenses as well. Id. at *3.

For a defendant to be eligible for the death penalty in Texas, the prosecution must prove beyond a reasonable doubt that the murder was “intentionally or knowingly” committed and was aggravated by at least one enumerated circumstance. TEX. PENAL CODE §§ 19.02(b)(1), 19.03. Once a defendant has been found guilty of capital murder, the jury must make findings 

on two special issues before a sentence of death can be imposed. First, the 

jury must find beyond a reasonable doubt that “there is a probability that the 

defendant would commit criminal acts of violence that would constitute a 

continuing threat to society.” TEX.CODE CRIM. PROC. art. 37.071, § 2(b)(1). 

This “future dangerousness” issue requires the jury to find the “defendant 

would constitute a continuing threat whether in or out of prison without regard to how long the defendant would actually spend in prison if sentenced 

to life.” Estrada v. State, 313 S.W.3d 274, 281 (Tex. Crim. App. 2010) (quotation marks and citation omitted). Second, the jury must find that there are 

no “mitigating circumstances . . . to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” TEX. CODE 

CRIM.PROC. art. 37.071, § 2(e)(1). The jury must decide both of these special 

issues unanimously. TEX.CODE CRIM. PROC. art. 37.071, § 2(d)(2), (f)(2).

The jury returned a verdict of death. On direct appeal, the Texas 

Court of Criminal Appeals affirmed Mendoza’s conviction and sentence. 

Mendoza, 2008 WL 4803471, at *1. In the state habeas proceeding, the state 

trial court appointed Lydia Brandt as state habeas counsel. She raised seven 

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claims. The state trial court denied relief on all grounds, as did the Court of 

Criminal Appeals. Ex parte Mendoza, No. WR-70,211-01, 2009 WL 1617814, 

at *1 (Tex. Crim. App. June 10, 2009).

Brandt was appointed to continue her representation as federal habeas

counsel. Mendoza’s federal habeas application asserted the same seven 

claims as in state court. In 2012, the district court entered final judgment 

denying relief but granted a Certificate of Appealability (“COA”) on four 

ineffective assistance of trial counsel (“IATC”) claims. Those claims were 

for ineffectiveness due to trial counsel’s “failing to obtain a comprehensive 

psycho-social history, by failing to consider, investigate, and present condition-of-the-mind evidence to negate the mens rea element in the guilt-determination phase of his trial, and by failing to adequately investigate and develop crucial mitigating evidence.” 

Mendoza appealed. Brandt continued as counsel. While the appeal 

was pending, the Supreme Court decided Trevino v. Thaler, 569 U.S. 413 

(2013). That case extended the Court’s previous holding in Martinez v. Ryan, 

566 U.S. 1 (2012), to Texas courts. Trevino, 569 U.S. at 416–17. Under these 

two decisions, a federal court may review an IATC claim that was “defaulted 

in a Texas postconviction proceeding . . . if state habeas counsel was constitutionally ineffective in failing to raise [the claim], and the claim has ‘some 

merit.’” Buck v. Davis, 580 U.S. 100, 126 (2017) (quoting Martinez, 566 U.S. 

at 14); see also Trevino, 569 U.S. at 429. 

Because Brandt had represented Mendoza as both state and federal 

habeas counsel, Mendoza moved for the appointment of conflict-free federal 

habeas counsel. We remanded to the district court “to appoint supplemental 

counsel” and “to consider in the first instance whether [Mendoza] can establish cause for the procedural default of any ineffective-assistance-of-trialcounsel claims pursuant to Martinez and Trevino that he may raise, and if so, 

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whether those claims merit relief.” Mendoza v. Stephens, 783 F.3d 203, 203

(5th Cir. 2015). 

The district court appointed new habeas counsel. That counsel raised 

two new IATC claims in November 2016 in a “First Amended Petition for a 

Writ of Habeas Corpus.” Both claims alleged defense counsel’s ineffectiveness at the punishment phase. Mendoza’s amended application conceded 

both claims were procedurally defaulted but argued he could overcome the 

procedural default under Martinez and Trevino because state habeas counsel’s failure to raise the claims in state court amounted to ineffective assistance of counsel. 

Mendoza alleged his trial counsel was ineffective for (1) calling Dr. 

Mark Vigen as a defense expert witness and (2) for failing to investigate and 

rebut Officer Hinton’s testimony by not interviewing Melvin Johnson, an inmate Mendoza had allegedly attacked in prison. Mendoza’s new federal habeas counsel interviewed Johnson. Subsequently, Johnson swore in an affidavit that Officer Hinton’s testimony was “patently false,” that the affiant 

Johnson was actually the “aggressor,” that Mendoza did not fight back, and 

that Johnson “received an extra tray of food” after the attack that he “figured 

was a bonus for [his] actions in fighting Mr. Mendoza.”

The district court denied relief on both claims. While Mendoza’s application for a COA from this court was pending, the Supreme Court decided 

Shinn v. Ramirez, 142 S. Ct. 1718 (2022). There, the Court held that a “federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance 

of state postconviction counsel.” Id. at 1734. As a result, Mendoza is barred 

from using the Johnson affidavit to support his failure-to-investigate claim 

with regards to Officer Hinton’s testimony. See id. Mendoza asked this court 

to remand to the district court to consider whether to enter a stay to allow

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Mendoza to return to state court to present his IATC claim in investigating 

Officer Hinton’s testimony and develop an evidentiary record in support of 

that claim. See Rhines v. Weber, 544 U.S. 269, 278 (2005) (allowing a stay in 

federal court so additional state proceedings can be conducted). 

We summarize. The IATC issues include several that predate our 

earlier remand to district court. Those are that trial counsel failed to (1) formulate an integrated defense theory throughout all phases of trial, (2) investigate condition-of-the-mind evidence to negate mens rea, (3) investigate and 

develop mitigation evidence, and (4) present crucial mitigating evidence. After the December 2022 district court judgment, we granted Mendoza a COA 

on two additional claims: trial counsel was ineffective for (5) presenting Dr. 

Mark Vigen’s testimony during the punishment phase of the trial and (6) failing to investigate a jail-yard fight between Mendoza and Johnson.

1

 Finally, 

we also discuss whether (7) Mendoza may return to state court to develop a 

record regarding the prison fight. 

DISCUSSION

This court reviews the district court’s conclusions of law de novo and 

its findings of fact for clear error. See Sanchez v. Davis, 936 F.3d 300, 304 

(5th Cir. 2019). 

I

We first consider whether we even have jurisdiction over this appeal. 

The State argues we do not have jurisdiction over the IATC claims raised by 

Mendoza’s supplemental, conflict-free federal habeas counsel after our 2015 

limited remand. See Mendoza, 783 F.3d at 203–04. Those are claims (5) and 

_____________________

1 We deferred a decision on the propriety of granting a COA on the claim that 

Mendoza’s state habeas counsel was ineffective for not preserving these issues on appeal.

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(6) in our enumeration above. The State contends that those claims are 

barred by the Antiterrorism and Effective Death Penalty Act’s 

(“AEDPA’s”) restrictions on second-or-successive habeas applications under 28 U.S.C. § 2244(b). According to the State, our remand did not vacate 

the district court’s final judgment denying habeas relief. Therefore, the State

argues, Mendoza is procedurally barred by Section 2244(b) from “amending” his initial application. 

Under Section 2244(b), a district court cannot consider a second-orsuccessive application unless authorization is obtained from the court of appeals.2 28 U.S.C. § 2244(b)(3). Mendoza did not obtain such authorization. 

If the State is right that this is a second-or-successive application, “the District Court never had jurisdiction to consider [these new claims] in the first 

place.” See Burton v. Stewart, 549 U.S. 147, 152 (2007).

Mendoza counters that the State’s argument conflicts with this 

court’s mandate, to which we are bound by the rule of orderliness. See Newman v. Plains All Am. Pipeline, L.P., 23 F.4th 393, 400 n.28 (5th Cir. 2022). 

Further, Mendoza argues, our mandate ensured there was no longer any “final” judgment under 28 U.S.C. § 1291 because we ordered the appointment 

of supplemental federal habeas counsel and reopened litigation on the merits

for any defaulted IATC claims. He contends that this lack of final judgment 

_____________________

2 A court of appeals may only authorize a second-or-successive habeas application 

in accordance with statutory restrictions. Specifically, a court of appeals must conclude

that the application relies on either: (1) “a new rule of constitutional law, made retroactive 

to cases on collateral review by the Supreme Court, that was previously unavailable,” or 

(2) newly discovered facts that, if proven, would “establish by clear and convincing 

evidence that . . . no reasonable factfinder would have found the applicant guilty.” 28 

U.S.C. § 2244(b)(2)(A)-(B). If these requirements are not satisfied, we must dismiss the 

second-or-successive application. § 2244(b)(3)(C).

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permitted an amended filing under Section 2242 via Federal Rule of Appellate Procedure 15.

These are unusual circumstances, ones that will not recur. Mendoza’s federal habeas litigation began after the Supreme Court’s Martinez

opinion, which seemingly did not apply to federal habeas proceedings by state 

prisoners in Texas. It was pending on appeal here when Trevino was decided. 

Under those two decisions, a federal court may review an IATC claim that 

was “defaulted in a Texas postconviction proceeding . . . if state habeas counsel was constitutionally ineffective in failing to raise [the claim], and the claim 

has ‘some merit.’” Buck, 137 S. Ct. at 779–80 (quoting Martinez, 566 U.S. at 

14). Mendoza, however, was represented by the same counsel in both his 

state habeas proceedings and initial federal habeas proceedings.

An opinion concurring in the limited remand in 2015 acknowledged 

that Mendoza’s counsel’s “loyalty to her client reasonably appears to be adversely limited because of her own interests.” Mendoza, 783 F.3d at 207 

(Owen, J. [now Richman, C.J.], concurring). The concurrence identified several other circuit courts that recognized “when state habeas counsel was also 

trial counsel, an inherent conflict of interest is present.” Id. (citing Bloomer 

v. United States, 162 F.3d 187, 192 (2d Cir. 1998); Stephens v. Kemp, 846 F.2d 

642, 651 (11th Cir. 1988); Riner v. Owens, 764 F.2d 1253, 1257 (7th Cir. 1985); 

Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983). In a similar vein, having 

the same state and federal habeas counsel would place Mendoza “in the untenable position of being forced to rely on appointed counsel to identify that 

counsel’s own failings, if any, and to contend in federal court that her failings 

constituted ineffective assistance of habeas counsel.” Id. at 208. 

We remanded Mendoza’s case to the district court to appoint supplemental counsel and for the court to make the initial decision of whether there 

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counsel claims pursuant to Martinez and Trevino that he may raise, and if so, 

whether those claims merit relief.” Id. at 203.

The State argues that Mendoza’s case is analogous to several cases 

outside our circuit, chiefly, Balbuena v. Sullivan, 980 F.3d 619 (9th Cir. 

2020), which renders his application second-or-successive despite our remand instructions. In Balbuena, the Ninth Circuit remanded for an indicative 

ruling under Federal Rule of Civil Procedure 12.1(b) on the petitioner’s Federal Rule of Civil Procedure 60(b) motion regarding a new claim that his confession was improperly obtained. Id. at 627, 638. The district court denied 

the motion but stayed proceedings and allowed him to return to state court 

to exhaust the new claim. Id. at 627–28. The petitioner lost in state court, 

then returned to district court to file a renewed Rule 60(b) motion. Id. at 628. 

The district court held that adding the new claim was a successive habeas 

application. Id. at 635. The Ninth Circuit agreed, rejecting Balbuena’s argument that his habeas application was “pending” for the purposes of Section 

2244 because its denial was still on appeal when he filed his Rule 60(b) motion in the district court. Id. at 636–37. The court held that once the district 

court made a final ruling and the appeal had commenced, the Section 2254 

application was no longer pending. Id.

The Balbuena decision is obviously procedurally distinct from the circumstances here. The type of limited remand under Rule 12.1(b) ordered by 

the Balbuena court, one that seeks an indicative ruling, does not disturb finality in the district court. See id. at 638; FED. R.APP. P. 12.1. Nor does it allow 

the district court to consider the merits or a motion under Rule 15. See Balbuena, 980 F.3d at 638. Instead, under Rule 12, the district court indicates 

how it would rule on the Rule 60(b) motion (or an equivalent) if its jurisdiction 

were later restored. FED. R. APP. P. 12.1. advisory committee notes to 2009 

amendment. The appellate court “retains jurisdiction” over the entire

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matter. FED. R. APP. P. 12.1(b); 2 STEVEN S. GENSLER ET AL., FEDERAL 

RULE OF CIVIL PROCEDURE, RULE 62.1 (2023). 

Here, we did not remand for an indicative ruling. See Mendoza, 783 

F.3d at 203. Further, we retained only partial jurisdiction (i.e., “jurisdiction 

in the remainder of the case”), and so, we restored jurisdiction to the district 

court to hear any new IATC claims if Mendoza could overcome the procedural default of ineffective state habeas counsel. See id. We therefore agree 

with Mendoza that this case is procedurally distinct from Balbuena and the 

other out-of-circuit cases the Government cites.3

We also agree with Mendoza that the effect of our mandate was to 

reopen litigation in the district court. Our remand in this case was not unlimited, though. It was defined in scope to those IATC claims potentially defaulted by a conflicted state habeas counsel now available under Martinez and 

Trevino.

4 Even so, once litigation was effectively reopened on the merits for 

those limited claims, Section 2242 allowed an amended filing: an application

“may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. §2242. The relevant civil rule on 

amended and supplemental pleadings is Federal Rule of Civil Procedure 15. 

Learned authority interprets Rule 15 to mean that “[o]nce [a] case has been 

_____________________

3 The Government cites five courts of appeals cases as support for the argument 

that “after the district court’s judgment is final (in the sense that it is appealable), a filing 

containing habeas claims is a second-or-successive application, even if the petitioner’s 

appeal is still pending.” See Phillips v. United States, 668 F.3d 433, 435 (7th Cir. 2012); 

Beaty v. Schriro, 554 F.3d 780, 783 n.1 (9th Cir. 2009); Ochoa v. Sirmons, 485 F.3d 538, 540

(10th Cir. 2007); Williams v. Norris, 461 F.3d 999, 1003 (8th Cir. 2006); United States v. 

Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); United States v. Terrell, 141 F. App’x 849, 852 

(11th Cir. 2005).

4 We decline to consider the Government’s argument raised for the first time on 

appeal that Mendoza’s new claims are barred by AEDPA’s statute of limitations. Wood v. 

Milyard, 566 U.S. 463, 474 (2012). 

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remanded, [a] lower court [may] permit new issues to be presented by an 

amended pleading that is consistent with the judgment of the appellate 

court.” 6 WRIGHT & MILLER ET AL., FEDERAL PRACTICE & PROCEDURE § 

1489 (3d ed. 2022). Indeed, in its response before the district court, the Government answered on the merits and did not challenge jurisdiction. Further, 

the district court entered a new final judgment when it completed its remand 

duties. 

Both parties urge us to resolve the broader question of whether a habeas filing is second-or-successive when proceedings on the initial application are ongoing. The Government urges us to follow several circuits’ lead 

in holding that, after a district court’s judgment is final, a filing containing a 

habeas claim is a successive application, even if the petitioner’s appeal is still 

pending. See Phillips, 668 F.3d at 435; Beaty, 554 F.3d at 783 n.1; Ochoa, 485 

F.3d at 540; Williams, 461 F.3d at 1003; Nelson, 465 F.3d at 1149; Terrell, 141 

F. App’x at 852. Mendoza urges us to adopt the opposite approach, and argues that holding otherwise conflicts with Supreme Court precedent in Slack 

v. McDaniel, 529 U.S. 473, 487–88 (2000), Banister v. Davis, 140 S. Ct. 1698 

(2020), and Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). Mendoza would 

have us follow the approaches in United States v. Santarelli, 929 F.3d 95, 105–

06 (3d Cir. 2019) and Whab v. United States, 408 F.3d 116, 118–19 (2d Cir.

2005), which hold that a subsequent habeas application is not successive if an 

appeal is ongoing. 

We decline to resolve that broader question here because of the unusual timing of Mendoza’s case does not require such a decision. Instead, we 

confine our holding to the narrow facts of this case. 

II

We now turn to the merits of Mendoza’s appeal. “In a habeas corpus 

appeal, we review the district court’s findings of fact for clear error and its 

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conclusions of law de novo, applying the same standards to the state court’s 

decision as did the district court.” Escamilla v. Stephens, 749 F.3d 380, 387 

(5th Cir. 2014).

Mendoza first argues that the district court erred in denying his 

motion for an evidentiary hearing. If a petitioner failed to develop the factual 

basis of a claim in state court, he may obtain an evidentiary hearing on the 

claim in federal court if he shows that: (1) either “the claim relies on . . . a 

new rule of constitutional law, made retroactive to cases on collateral review 

by the Supreme Court, that was previously unavailable,” or “a factual 

predicate that could not have been previously discovered through the 

exercise of due diligence;” and (2) “the facts underlying the claim would be 

sufficient to establish by clear and convincing evidence that but for the 

constitutional error, no reasonable factfinder would have found the applicant 

guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). In cases where

Section 2254(e)(2) does not bar the district court from holding an evidentiary 

hearing, this court reviews the denial of the evidentiary hearing for abuse of 

discretion. Blue v. Thaler, 665 F.3d 647, 655 (5th Cir. 2011).

Mendoza argues that the district court abused its discretion because 

the new evidence in the defense team members’ responses to the 

interrogatories created a genuine issue of material fact as to whether 

Mendoza’s defense team conducted an adequate mitigation investigation. 

He asserts that, because he made the “required prima facie showing of a 

material issue of fact, the [district] court was required to conduct an 

evidentiary hearing.” 

“[A] district court’s refusal to hold an evidentiary hearing in a § 2254 

proceeding is an abuse of discretion only if the petitioner can show that 

(1) the state did not provide him with a full and fair hearing, and (2) the 

allegations of his petition, if proven true, . . . would entitle him to relief.” Id.

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(alteration in original) (quotation marks omitted). In addition, a third 

condition is that federal courts are prohibited “from using evidence that is 

introduced for the first time at a federal-court evidentiary hearing as the basis 

for concluding that a state court’s adjudication is not entitled to deference 

under § 2254(d).” Id. at 656 (citing Cullen v. Pinholster, 563 U.S. 170 (2011)). 

Because a federal habeas court cannot “consid[er] new evidence when 

reviewing claims that have been adjudicated on the merits in state court,” if 

Mendoza’s claim was adjudicated on the merits in state court, it could not 

have been error for the court to deny an evidentiary hearing. See Broadnax v. 

Lumpkin, 987 F.3d 400, 407 (5th Cir. 2021), cert. denied, 142 S. Ct. 859 

(2022).

Mendoza asserts that, because he sought discovery in state court, but 

it was denied, the Texas Court of Criminal Appeals failed to provide him with 

due process and his claims were not adjudicated on the merits. Mendoza 

relies substantially on Fourth Circuit decisions holding that “when a state 

court forecloses further development of the factual record, it passes up the 

opportunity that exhaustion ensures,” and, therefore, “[i]f the record 

ultimately proves to be incomplete, deference to the state court’s judgment 

would be inappropriate because judgment on a materially incomplete record 

is not an adjudication on the merits for purposes of § 2254(d).” Winston v. 

Kelly (Winston I), 592 F.3d 535, 555–56 (4th Cir. 2010); Winston v. Pearson 

(Winston II), 683 F.3d 489, 501–02 (4th Cir. 2012).

With respect for that circuit, we have consistently held that “a full and 

fair hearing is not a precondition to according § 2254(e)(1)’s presumption of 

correctness to state habeas court findings of fact nor to applying § 2254(d)’s 

standards of review.” Boyer v. Vannoy, 863 F.3d 428, 446 (5th Cir. 2017) 

(quoting Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001)). Such a 

requirement is supported neither by the plain text of Section 2254(d), which 

makes no reference to a full and fair hearing, nor by the legislative landscape 

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against which AEDPA was passed, which involved excising from the preAEPDA version of Section 2254 references to a full and fair hearing. Valdez, 

274 F.3d at 949–51. Further, “[w]here we have conducted an examination 

of whether an ‘adjudication on the merits’ occurred, we have looked at 

whether the state court reached the merits of the petitioner’s claim rather 

than deciding it on procedural grounds.” Id. at 952. 

As in Valdez, evidence relevant to Mendoza’s claims was not included 

in the record — due to the Court of Criminal Appeals’ denial of Mendoza’s 

motion for discovery — and was not reviewed by the court in making its 

decision. Likewise, the Court of Criminal Appeals’ denial of Mendoza’s 

claims was based not upon procedural grounds but upon the merits of the 

claims, albeit without the benefit of additional material evidence. Ex parte 

Mendoza, 2009 WL 1617814, at *1. We conclude that, as we held in Boyer and 

Valdez, Mendoza’s claims were adjudicated on the merits. In one precedent, 

we held that “where a petitioner’s habeas counsel had raised an issue in the 

state habeas court, albeit ineffectively from a constitutional standpoint, the 

petitioner was barred by Pinholster from offering new evidence in federal 

court precisely because the original claim had been ‘fully adjudicated on the 

merits’ in state court.” Broadnax, 987 F.3d at 409 (quoting Escamilla, 749 

F.3d at 394–95). 

Because Mendoza’s claims were adjudicated on the merits in state 

court, an evidentiary hearing could not have aided the district court in its 

review. Therefore, the district court did not abuse its discretion in denying 

Mendoza’s motion for an evidentiary hearing.

Mendoza also (1) challenges the application of AEDPA deference 

under Section 2254(d) to the Court of Criminal Appeals’ decision and 

(2) requests this court consider the interrogatories the federal district court 

ordered and considered. He premises both this challenge and request on the 

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ground that, due to the Court of Criminal Appeals’ denial of his motion for 

discovery, its decision was not an adjudication on the merits. For the reasons 

already explained, we reject these arguments. 

Section 2254(d)’s highly deferential standard applies. We now 

discuss the relevant claims with that deference.

III

We begin with the four claims for which a COA was granted in 2013. 

All four of these claims concern the ineffective assistance of trial counsel. In 

order to prevail on an IATC claim, a petitioner must show that “counsel’s 

representation fell below an objective standard of reasonableness” and that 

there is “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland v. 

Washington, 466 U.S. 668, 688, 694 (1984). There is “a ‘strong 

presumption’ that counsel’s representation was within the ‘wide range’ of 

reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 

(2011) (quoting Strickland, 466 U.S. at 689). “‘Surmounting Strickland’s 

high bar is never an easy task’ . . . [and] [e]stablishing that a state court’s 

application of Strickland was unreasonable under § 2254(d) is all the more 

difficult.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 

Because Strickland and Section 2254(d) are highly deferential, our review is 

doubly deferential when both apply in tandem. Id.

“When § 2254(d) applies, the question is not whether counsel’s 

actions were reasonable. . . . [but] whether there is any reasonable argument 

that counsel satisfied Strickland’s deferential standard.” Id. 

The 2013 COA was granted on four IATC claims: trial counsel failed 

to (1) formulate an integrated defense theory throughout all phases of trial, 

(2) investigate condition-of-the-mind evidence to negate mens rea, 

(3) investigate and develop mitigation evidence, and (4) present crucial 

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mitigating evidence. All four of Mendoza’s claims stem from the premise 

that his defense team unreasonably failed to conduct an adequate 

investigation of Mendoza’s psycho-social history. Had counsel conducted 

an adequate investigation, he asserts, they would have discovered evidence 

of adverse childhood experiences and attachment disorder, leading to binge 

drinking that culminated in brain damage. With this information, Mendoza 

argues his defense team could have — and should have — argued that (1)

Mendoza’s brain damage prevented him from forming the necessary mens rea

of intent to kill; and (2) that on the night of the murder, his attachment 

disorder, amplified by the negative relationship with his former girlfriend, 

resulted in a catathymic homicide. A catathymic homicide, rather than 

intentional murder, is an unintentional “culmination” of the attachment 

disorder. 

Under Strickland, “strategic choices made after less than complete 

investigation are reasonable precisely to the extent that reasonable 

professional judgments support the limitations on investigation.” 466 U.S. 

at 690–91. If counsel opts not to explore a particular line of defense, that 

decision must be assessed for reasonableness in light of all the circumstances, 

“applying a heavy measure of deference to counsel’s judgments.” Id. at 691. 

The Court of Criminal Appeals concluded that the investigation conducted 

by Mendoza’s defense team was constitutionally adequate. It found that the 

defense team had conducted a “comprehensive and thorough investigation 

into [Mendoza’s] psycho-social history” and determined that counsel had 

acted reasonably in not further investigating, developing, and presenting the 

theories of attachment disorder, alcohol-related brain damage, and 

catathymic homicide advocated by Mendoza on habeas. The court based its 

conclusion in part on the fact that Mendoza failed to identify on habeas “any 

specific, credible fact or event . . . that [his defense team] failed to uncover.” 

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The record supports that the Court of Criminal Appeals’ decision was 

not an unreasonable application of Strickland. Further, the cases Mendoza 

cites are distinguishable. In one precedent, the state habeas mitigation 

investigation revealed a “tidal wave of information,” including “a childhood 

marked by extreme neglect and privation [and] a family environment filled 

with violence and abuse.” Andrus v. Texas, 140 S. Ct. 1875, 1879 (2020). 

Here, the traditional factors for mitigating evidence and ineffective counsel

were arguably absent, and there is no evidence of a substantial quantity of 

missed information that would have swayed the jury’s mind. Id. at 1880.

The Supreme Court has found investigations to be constitutionally 

inadequate when counsel did not begin their investigation until a week before 

trial, did not seek relevant records, and did not return a willing witness’s 

phone call. Williams v. Taylor, 529 U.S. 362, 395–96 (2000). Inadequacy also 

was shown when the investigation was limited to reviewing the defendant’s 

presentence investigation report and various social services records and 

counsel “acquired only rudimentary knowledge of [petitioner’s] history.” 

Wiggins v. Smith, 539 U.S. 510, 523–24 (2003). Another example was when 

counsel spent only one day or less investigating and spoke only with witnesses 

selected by the defendant’s mother. Sears v. Upton, 561 U.S. 945, 952 (2010). 

Our final comparator is when counsel “did not obtain any of [the 

defendant’s] school, medical, or military service records or interview any 

members of [his] family.” Porter v. McCollum, 558 U.S. 30, 39 (2009).

In contrast, Mendoza’s defense team obtained Mendoza’s school and 

medical records, as well as his father’s medical records. It spent a 

considerable number of hours over the course of a month interviewing 

Mendoza, his parents, his siblings, and individuals from his high school and 

church. From these records and interviews, Mendoza’s defense team 

learned that his father had a history of depression; his cousin had attempted 

to sodomize Mendoza when he was a child; his uncle had suffered from 

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bipolar disorder and had been killed by Mendoza’s cousins after the uncle 

tried to kill them; Mendoza had spent time with those same cousins; and that 

Mendoza had issues with alcohol and drug use that his family members 

thought might have altered his mind. Given the extent of the investigation 

conducted by Mendoza’s defense team, the Court of Criminal Appeals’ 

conclusion that the investigation was not constitutionally deficient was 

reasonable.

Even if the investigation conducted by Mendoza’s defense team was

constitutionally inadequate, Mendoza must still establish that “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceedings would have been different.” Strickland, 466 U.S. at 694. 

“When a defendant challenges a death sentence . . . the question is whether 

there is a reasonable probability that, absent the errors, the 

sentencer . . . would have concluded that the balance of aggravating and 

mitigating circumstances did not warrant death.” Id. at 695. We examine 

prejudice, though we find the investigation to have been adequate.

Mendoza first argues that he was prejudiced by counsel’s failure to 

conduct a thorough investigation because counsel was unable to formulate an 

integrated defense theory, and instead presented differing theories of defense 

during the voir dire, guilt/innocence, and sentencing phases of the trial. He 

asserts that had counsel presented a unified theory, the defense could have 

rebutted the prosecution’s arguments that Mendoza chose to commit 

violence against women despite his positive upbringing and that his crime 

was the result of his evil choices. 

The Government argues that the unified theory of defense proffered 

by Mendoza on habeas has its own problems. First, Mendoza’s unified 

theory posits that Mendoza suffers from attachment disorder, which caused 

involuntary abuse of alcohol, which later caused brain damage. Then, on the 

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night of the offense, his attachment disorder, amplified by his negative 

relationship with his former girlfriend, resulted in an unintentional 

catathymic homicide. This is a complicated theory to use with a jury. 

Second, the jury may well have rejected that Mendoza’s alcohol abuse was 

involuntary, especially because jurors had stated during voir dire that 

mitigation arguments premised on voluntary intoxication would not be 

persuasive. Third, the catathymic homicide theory is inconsistent with the 

literature observing that perpetrators of catathymic homicides generally have 

no prior history of violence. Additionally, this theory might have opened the 

door to otherwise inadmissible evidence regarding Mendoza’s numerous 

violent acts. Finally, due to the complex and technical nature of Mendoza’s 

proffered theory, the defense would have likely needed to provide additional 

experts even though the jury had given negative responses to defense experts 

on juror questionnaires. In light of these concerns, it is not reasonably 

probable that the outcome of the proceedings would have been different had 

defense counsel presented this unified defense theory.

Mendoza next argues that he was prejudiced by the inadequate 

investigation because counsel was unable to present condition-of-the-mind 

evidence to negate mens rea during the guilt/innocence phase of the trial. He 

asserts that had counsel conducted a thorough investigation, the defense 

would have been able to present evidence of Mendoza’s attachment disorder 

and brain damage that would have negated the mens rea for knowing and 

intentional murder.

 This argument suffers from many of the same defects as Mendoza’s 

claim of prejudice from not having a unified defense theory: the complexity 

of the argument, the jury’s negative response to intoxication as a mitigating 

factor, and the requirement of additional experts. Especially problematic is 

Mendoza’s inability to assert with any certainty that he actually had extensive 

brain damage that would have precluded him from formulating the requisite 

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mens rea. The expert he relied on in state habeas proceedings affirmed that 

Mendoza’s defense team “could have conclusively proved the existence of 

neuropsychological damage,” and that neuropsychological tests “would 

have provided defense counsel with the means to demonstrate for Mr. 

Mendoza’s jury how the quality of his brain and the specific damage 

sustained to it adversely affected his higher cognitive functioning and 

reasoning skills.” (emphasis added). Because “impaired cognitive abilities 

due to alcohol abuse tend to recover with abstinence,” however, the extent 

of Mendoza’s brain damage at the time of the murder is largely speculative. 

Indeed, the Court of Criminal Appeals found that Mendoza had “not 

presented persuasive evidence that he has or has ever had a cognitive 

impairment.” 

Finally, Mendoza argues that the defense team’s inadequate 

investigation prevented counsel from presenting evidence regarding his 

family’s behavior of criminality and domestic violence and the toxic impact 

of his former girlfriend and her family. He contends that the failure to 

develop and present this evidence prejudiced him because the defense was 

unable to rebut the prosecution’s story that Mendoza had come from a good 

environment but simply made evil choices. With respect to sentencing, the 

evidence that Mendoza was molded to model criminal behavior is doubleedged: while it “might permit an inference that he is not as morally culpable 

for his behavior, it also might suggest [that the defendant], as a product of his 

environment, is likely to continue to be dangerous in the future.” Ladd v. 

Cockrell, 311 F.3d 349, 360 (5th Cir. 2002); see also Johnson v. Cockrell, 306 

F.3d 249, 253 (5th Cir. 2002). Additionally, the prosecution presented 

extensive evidence at sentencing that Mendoza had a history of violence, 

especially towards women. “[T]he evidence of [the defendant’s] future 

dangerousness was overwhelming. When that is the case, it is virtually 

impossible to establish prejudice.” Ladd, 311 F.3d at 360. There is not a 

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reasonable probability that the jury would have concluded that the balance of 

aggravating and mitigating factors did not warrant death.

IV

Having dispensed with the four claims for which a COA was granted 

in 2013, we turn to the three claims for which a COA was granted in 2020.

The first of those claims is that the actions of Mendoza’s trial counsel 

constituted ineffective assistance for the presentation of Dr. Mark Vigen’s 

testimony during the punishment phase of the trial. The same standards for 

ineffective assistance of counsel discussed above apply, but this claim is 

procedurally defaulted because Mendoza did not raise it in his state habeas 

proceedings. Because of the default, we first address whether Mendoza’s 

trial counsel was ineffective and then whether his procedural default of that 

claim was excused by the ineffectiveness of his state habeas counsel under 

Martinez and Trevino.

Mendoza argues that his trial counsel was ineffective by calling Dr.

Vigen, an expert psychologist, to testify that (1) Mendoza had no moral 

compass or sense of self, (2) there was an absence of traditional mitigation 

factors, and (3) Mendoza was dangerous. These claims present a close 

question but are ultimately unmeritorious, particularly when this testimony 

is read in its proper context and coupled with Dr. Vigen’s experience in other 

capital cases and his purported ability to “create great rapport with juries.” 

Mendoza first objects to Dr. Vigen’s testimony that Mendoza had no 

moral compass or sense of self. Dr. Vigen concluded that Mendoza “is an 

immature, psychologically under-developed adolescent-like man who has no 

internal sense of himself . . . no inner self, no clear inner identity.” Mendoza 

argues that this testimony would have made more sense coming from the 

prosecution because “the death penalty calls for a ‘moral 

assessment,’ . . . and a person without a ‘compass’ or ‘identity’ arguably is a 

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person whose life is not worth sparing.” The testimony was not so 

unreasonable, as Dr. Vigen also testified that Mendoza was still an adolescent 

and that his brain would not be fully developed until his mid-twenties, helping 

to explain his psychological condition. Further, Dr. Vigen opined that 

Mendoza “has the potential to develop a sense of self and the potential for 

rehabilitation and some type of spiritual conversion.” He described

Mendoza’s dawning recognition of his own “depression” and “emptiness,” 

and his own potential to gain further self-awareness, better appreciate the 

“tremendous seriousness” of his actions, and cultivate remorse. Viewed as 

a whole, it was not deficient of trial counsel to believe this testimony would 

help Mendoza.

Mendoza next objects to Dr. Vigen’s testimony that the traditional 

mitigation factors did not apply to Mendoza. Dr. Vigen testified that “in 

most of the cases that I’ve seen there are incidents — there’s the criminal 

history in the family or there’s an alcohol and drug instance in the family or 

there’s a mental health issue in the family,” but that “[t]here’s something 

missing in this case for me as a psychologist . . . those general factors . . . are 

just not present.” However, in context, Dr. Vigen was trying to redirect 

focus to the factors that were present. The quote above continues: “and the 

family is really on one level trying to work very hard and do their very, very 

best. On the other level, there is some dysfunction in terms of attachment. 

[Mendoza] didn’t attach to his dad. He worked with him all the time, but he 

could never talk to him. They could never connect.” Dr. Vigen went on to 

explain that Mendoza’s father “has a major affective disorder,” which “may, 

in some way, predispose [Mendoza] to alcohol dependency.” Additionally, 

earlier in this testimony, Dr. Vigen laid out the mitigation factors. On direct 

examination, he testified that Mendoza “[came] from a psychologically 

dysfunctional family” with a father “who was a fragile man, who really didn’t 

have the power to be a dad” and a “mom [who] was sort of covering in some 

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ways . . . continually rescu[ing]” Mendoza so that “he really didn’t 

experience the consequences of some of his negative behavior.” 

Along these same lines, Mendoza argues that “far from attempting to 

lessen Mendoza’s culpability, [Dr.] Vigen testified that Mendoza had made 

a choice: Mendoza ‘could have chosen’ to live a ‘responsible’ life, but 

‘[s]ometimes’ kids ‘don’t [listen].’” Dr. Vigen did testify that Mendoza’s 

brother Mario would have been a “good role model” but that “[t]he problem 

is [Mario] really feels that he left too early and that he wishes he had been 

more of a role model.” When Dr. Vigen said that sometimes kids do not 

listen, he was talking about his second opinion, “that [Mendoza] comes from 

a psychologically dysfunctional family” and explaining that he was “not 

trying to be critical of the family. It’s a good family. But no family is perfect, 

and families offer their children a smorgasbord of their good behaviors and 

their not-so-good behaviors. Parents don’t control what children come and 

take from them . . . Sometimes the kids listen. Sometimes they don’t. 

Sometimes they should listen. Sometimes they shouldn’t.”

Although certain aspects of the testimony were not ideal, which is 

hardly unusual or constitutionally deficient in general, we are not convinced 

the choice to present this testimony as a whole falls outside the “‘wide range’ 

of reasonable professional assistance.” Harrington, 562 U.S. at 104 (quoting 

Strickland, 466 U.S. at 689).

The third portion of testimony Mendoza objects to is Dr. Vigen’s 

testimony on future dangerousness. The first piece of future dangerousness 

testimony Mendoza objects to is when Dr. Vigen admitted on cross 

examination: State: “The Defendant has already proven to us, hasn’t he, 

that in a free society he is a very dangerous individual, isn’t he? [Dr. Vigen]: 

I think that’s — the jury has decided that, and I certainly agree with that.” 

But this was at the sentencing phase of trial; at this point, everyone knew the 

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reality that Mendoza would spend the rest of his life in prison, never in free 

society. Dr. Vigen emphasized several times that his assessment was 

accounting for the fact that the jury had already convicted Mendoza of capital 

murder. Mendoza argues that the “prosecution understood the import of 

this testimony and the gravity of the error, arguing in closing that Mendoza’s 

‘very own witness, Dr. Vigen . . . told you that [he] is dangerous in 

society . . . . So you know the answer to [the future dangerousness] 

question.’” The context of the use of Dr. Vigen’s testimony in closing shows 

that the prosecution was referring to all the other factors as well:

But it’s not just the prison system. Because that question asked 

you whether he is a danger to society, anyone inside or outside 

that he may encounter. The question is if he is given the 

opportunity, the opportunity to do violence, will he do it? And 

you know that he will. 

His very own witness, Dr. Vigen. Dr. Vigen told you that this 

Defendant is dangerous in society. And the Defendant’s own 

words while he sat in our jail, he wrote that he will fight his 

conscience until he is forever unconscious. So you know the 

answer to that question. 

You know, the best predictor of future behavior is past 

behavior. And you know already about the escalation of 

violence in his life to this point that has already culminated in 

the ultimate sadistic act.

The prosecution then segued into the many other incidents in Mendoza’s life 

that signified future violence. 

Mendoza also objects to another aspect of this future dangerousness 

testimony: Dr. Vigen claimed that Mendoza’s “bad behavior persists now 

even in the jail,” and despite being imprisoned, Mendoza continues to 

“cause[] trouble.” However, throughout his testimony, Dr. Vigen 

minimized the severity of Mendoza’s actions in jail, describing them as a 

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“nuisance,” and his behavior evidencing immaturity, and stating, “You 

know, it’s just adolescent behavior . . . [a]ttention-seeking behavior.” Dr. 

Vigen also opined that the Texas Department of Criminal Justice could house 

Mendoza such that he would present a “low or minimum risk for future 

violence,” and that a life sentence of imprisonment would encourage 

rehabilitation. 

Mendoza argues that this theory that he could be rehabilitated in 

prison once he was separated from his “depraved friends” “invited the 

prosecution to present Mendoza’s jail record, including [Officer] Hinton’s 

(uninvestigated) account of Mendoza’s alleged attack on Johnson.” (citing 

Arizona v. Fulminante, 499 U.S. 279, 300 (1991); Hooper v. Mullin, 314 F.3d 

1162, 1171 (10th Cir. 2002)). Other evidence, however, independently 

invited rebuttal testimony regarding Mendoza’s behavior in prison. For 

instance, the priest’s testimony regarding Mendoza’s improved “demeanor 

and attitude” during their visits in prison permitted the rebuttal evidence, as 

did Mendoza’s brother’s testimony that, apart from “a couple of incidents 

where the guards antagonized him,” Mendoza had been a “model citizen” 

in prison.

Further, the precedent Mendoza uses to support his objection to the 

future dangerousness testimony is unpersuasive. Mendoza analogizes to a 

Supreme Court decision holding that counsel’s presentation of expert 

testimony regarding future dangerousness was objectively unreasonable. 

Buck, 580 U.S. at 118-121. The testimony in that case, though, is quite 

distinguishable. In Buck, counsel “specifically elicited testimony about the 

connection between [the defendant’s] race and the likelihood of future 

violence” and offered an expert report “reflect[ing] the view that [the 

defendant’s] race disproportionately predisposed him to violent conduct.” 

Id. at 119. The Court stated that, had the testimony been presented by the 

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state, these racialized arguments would be “patently unconstitutional.” Id. 

This far exceeds any deficiency shown in presenting the testimony here.

Additionally, as to all three categories of Dr. Vigen’s testimony to 

which Mendoza objects, trial counsel’s choice to present was supported by a 

strategic justification. When evaluating an ineffective assistance of counsel 

claim, “[t]his court will not question a counsel’s reasonable strategic 

decisions.” Bower v. Quarterman, 497 F.3d 459, 470 (5th Cir. 2007); see also 

Strickland, 466 U.S. at 691. “Moreover, we have consistently found 

counsel’s decisions regarding examination and presentation of witnesses and 

testimony to fall within this category of trial strategy which enjoys a strong 

presumption of effectiveness.” Pape v. Thaler, 645 F.3d 281, 291 (5th Cir. 

2011). Mendoza’s trial counsel explained in affidavits that the presentation 

was strategic: Dr. Vigen could “explain the bad with the good,” and Dr. 

Vigen could support counsel’s theory that, although Mendoza had fallen in 

with a bad crowd and engaged in “depraved behavior, . . . this could be 

controlled in prison and eventually lead to some redemption.” Trial counsel 

wanted to offer “an explanation for [Mendoza’s] conduct, not an excuse,”

which reflected counsels’ view that “it was better that [the jury] hear [any 

damaging information] explained by [the defense’s] expert than by the state’s 

witnesses.” 

The closest opinion on point Mendoza offers is Magill v. Dugger, 824 

F.2d 879 (11th Cir. 1987). There, the defense presented an expert witness 

who “testified on cross-examination that Magill was not under the influence 

of an extreme emotional or mental disturbance at the time of the crime,” 

instead of offering a second expert who “could have testified that Magill 

exhibited signs of serious emotional problems at the age of thirteen” and who 

“‘definitely would have projected’ the appellant could be involved in a crime 

of this magnitude” based on that finding. Id. at 889. Further, in that case, 

the Eleventh Circuit stated that it could not “accept the district court’s view 

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that [counsel] made an informed, strategic choice not to call” the second 

expert, because counsel at a hearing stated that he would have called the 

second expert if he had been available but could not recall any efforts to 

contact that expert and there was no evidence that expert was unavailable. 

Id. Here, as discussed above, trial counsel explained the strategic justification

and there was no uncalled witness as in Magill.

This principle that ineffective counsel decisions that amount to 

deficiency are those made without strategic justification is supported by other 

circuit court opinions on which Mendoza relies. We held in one of the cited 

opinions that trial counsel’s performance was deficient when counsel 

questioned the defendant about his silence following arrest, allowing the state 

to probe this evidence on cross-examination. White v. Thaler, 610 F.3d 890, 

902 (5th Cir. 2010). In White, though, an affidavit from defense counsel 

made clear that the questioning “was not part of a strategy.” Id. at 900. 

Here, by contrast, Dr. Vigen’s testimony served defense counsel’s strategy 

to explain that a life prison sentence would control and shape Mendoza’s 

behavior for the better. Further, unlike the defendant’s post-arrest silence in 

White, Mendoza’s prison conduct was not “otherwise inadmissible 

evidence,” White, 610 F.3d at 899, because the State could have presented 

evidence of that conduct in its case in chief, see Williams v. Lynaugh, 814 F.2d 

205, 207–08 (5th Cir. 1987), and other defense testimony independently 

invited the State’s rebuttal. Likewise, Mendoza cites Johnson v. Bagley, 544 

F.3d 592 (6th Cir. 2008) and Richards v. Quarterman, 566 F.3d 553 (5th Cir. 

2009). Both of those cases turned on a failure to investigate or present 

mitigating or exculpatory evidence that existed, not counsel’s decision to 

present a certain expert. See Johnson, 544 F.3d at 605; Richards, 566 F.3d at 

566–67. Mendoza has not argued that there was a similar traumatic event in 

his lifetime that Dr. Vigen could have pointed to as a mitigating factor.

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Mendoza also specifically objects to one portion of the strategy

regarding the future dangerousness special issue, arguing that defense 

counsel’s choice to focus on Mendoza’s conduct inside prison rather than 

outside “was not only legally mistaken but also unreasonable on this record.” 

It is plausible, though, that counsel’s strategy stemmed not from a 

misunderstanding of the legal standard, but rather from the reality of 

Mendoza’s potential sentence. In closing, counsel told the jury, “when you 

answer the Special Issues, especially Special Issue Number 1 [the future

dangerousness question], you have to remind yourself that you’re dealing 

with that question in the context of prison, because [Mendoza has] already 

been convicted of capital murder and that’s where he’s going.” 

To show error in this context, Mendoza cites an opinion for the 

proposition that, even when a prisoner would never be eligible for parole, the 

question is still “whether there is a probability that the defendant would 

constitute a continuing threat to society whether in or out of prison.” Estrada 

v. State, 313 S.W.3d 274, 284 (Tex. Crim. App. 2010) (quotation marks

omitted). There was no need, the court stated, for the state to prove “beyond 

a reasonable doubt that the defendant would get out of prison through means 

of escape or otherwise.” Id. Importantly, Estrada further held that the 

evidence of the defendant’s brutality and lack of remorse supported the 

jury’s future dangerousness finding:

In this case, we decide that the evidence of appellant’s 

unremorseful, premeditated, brutal murders of Sanchez and 

their unborn child by stabbing Sanchez thirteen times, of his 

pattern of using his position of trust as a youth pastor to take 

sexual advantage of underage girls in his youth group, of his 

threat to “ruin” another former member of the youth group 

when she threatened to expose appellant, and of the 

opportunities for a life-sentenced-without-parole appellant to 

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commit violence in prison are sufficient to support the jury’s 

affirmative answer to the future[]dangerousness special issue.

Id. at 284–85. 

That is the same sort of testimony that was presented by the 

prosecution here, which is why Mendoza cannot show that any potential 

error in presenting Dr. Vigen’s testimony prejudiced him.

In order to succeed on his Strickland claim, Mendoza would also need 

to show that any potential ineffective assistance prejudiced him. See 

Strickland, 466 U.S. at 677. Establishing prejudice requires showing “that 

there is a reasonable probability” (or, a “probability sufficient to undermine 

confidence in the outcome”) “that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Id. at 668, 694. 

“The likelihood of a different result must be substantial, not just 

conceivable.” Trevino v. Davis, 829 F.3d 328, 351 (5th Cir. 20016) (quoting 

Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012)).

“When a defendant challenges a death sentence such as the one at 

issue in this case, the question is whether there is a reasonable probability 

that, absent the errors, the sentencer — including an appellate court, to the 

extent it independently reweighs the evidence—would have concluded that 

the balance of aggravating and mitigating circumstances did not warrant 

death.” Strickland, 466 U.S. at 695. Because Mendoza’s “death sentence 

required a unanimous jury recommendation, TEX.CODE CRIM. PROC.ANN., 

art. 37.071, prejudice here requires only ‘a reasonable probability that at least 

one juror would have struck a different balance’ regarding [his] ‘moral 

culpability.’” See Andrus, 140 S. Ct. at 1886 (quoting Wiggins, 539 U.S. at 

537–38). “In making this determination, a court hearing an ineffectiveness 

claim must consider the totality of the evidence before the judge or jury.” 

Strickland, 466 U.S. at 695. “Moreover, a verdict or conclusion only weakly 

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supported by the record is more likely to have been affected by errors than 

one with overwhelming record support.” Id. at 696.

Mendoza also argues that prejudice is shown because the prosecutor 

referred to Dr. Vigen’s testimony in closing argument, and during 

deliberations, the jury asked about Mendoza’s record while in jail. However, 

the jury heard an overwhelming amount of independent aggravating 

evidence, including that Mendoza: raped a fourteen-year-old girl twice, and 

during one of the rapes performed similar acts on her with a beer bottle and 

pen — which he videotaped and then showed to others while laughing;

attempted to strangle a girl at a party and the “only thing that got him off of 

[her] was two people getting him off of [her],” put a pill into a girl’s drink, 

and, when confronted by the host, “slammed [him] up against [his] friend’s 

truck and stuck [a] knife to [his] stomach,” committed multiple robberies, 

attacked his younger sister, and told two girls on the night of the murder that 

he would cut their throats with a rusty saw. The prosecution also covered 

these events in closing.

This substantial aggravating evidence is in addition to the facts of this 

murder, which Texas law recognizes “alone may be sufficient to sustain the

jury’s finding of future dangerousness.” Martinez v. State, 327 S.W.3d 727, 

730 (Tex. Crim. App. 2010). The jury also heard evidence from other 

witnesses about the lack of mitigating circumstances, such as that Mendoza 

graduated high school and grew up in a supportive religious home with both 

parents and brothers as his role models. “Given the overwhelming 

aggravating factors, there is no reasonable probability that the omitted 

evidence would have changed the conclusion that the aggravating 

circumstances outweighed the mitigating circumstances and, hence, the 

sentence imposed.” Strickland, 466 U.S. at 700.

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Because Mendoza’s trial counsel was not ineffective, this court need 

not and does not consider whether the claims can survive procedural default. 

See Nelson v. Davis, 952 F.3d 651, 673 (5th Cir. 2020). “As with any other 

IATC claim, the underlying IATC-Participation claim (which, if viable, may 

allow a claim that state habeas counsel potential ineffectiveness prejudiced 

Nelson, thereby excusing procedural default) requires a showing of two 

elements.” Id. (emphasis added).

V

The final issue is whether to remand to the district court to stay, or 

consider staying, federal habeas proceedings under Rhines, 544 U.S. at 275. 

Mendoza argues that he “has never had a full and fair opportunity to 

litigate the merits of his claim that trial counsel were ineffective for not investigating [Officer] Hinton’s allegedly false testimony.” Because this claim 

was never presented in state court, Mendoza cannot rely on the Johnson affidavit to support his claim in federal court under the Supreme Court’s precedent in Shinn v. Ramirez, 142 S. Ct. 1718 (2022). He asks this court in a 

motion to remand for entry, or at least consideration, of a Rhines stay so that 

he can litigate this claim in state court. 

District courts may stay federal habeas proceedings to allow a petitioner to exhaust a claim in state court to ensure that petitioners with mixed 

claims do not “forever los[e] [the] opportunity for any federal review of their 

unexhausted claims.” Rhines, 544 U.S. at 275. A stay is available where a 

petitioner can show: (1) good cause for the failure to exhaust, (2) that the 

request is not plainly meritless, and (3) that the request is not for purposes of 

delay. Id. at 277–78. 

The Government primarily argues that, because Mendoza’s claim is 

procedurally barred from being presented in Texas state court, his claim is 

“plainly meritless” under Rhines. Neville v. Dretke, 423 F.3d 474, 480 (5th 

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Cir. 2005). Under Texas law, second-or-successive habeas applications must

be denied unless a habeas petitioner can show that (1) “the factual or legal 

basis for the claim was unavailable on the date the applicant filed the previous 

application;” and, (2) “but for” the constitutional violation, either “no rational juror could have found the applicant guilty beyond a reasonable doubt” 

or “no rational juror would have answered in the state’s favor one or more of

the special issues” necessary for the sentence of death. TEX. CODE CRIM.

PROC. art. 11.071, § 5(a). 

Mendoza argues that his application would not be denied because 

Texas courts have previously allowed successive applications where a petitioner claims the State relied on false testimony or withheld evidence. Further, he contends that federalism dictates that Texas should be afforded the 

opportunity to “decide whether [Ramirez] impacts its application of the 

abuse-of-the-writ doctrine” because petitioners are now barred from receiving federal review of their claims if the evidence is not already in the state 

court record. The Government counters that the district court has already 

found that Mendoza failed to prove Officer Hinton’s testimony was false, so 

he has not lost an opportunity to litigate that claim anyway. 

Mendoza’s request for a Rhines stay is meritless in this context. Texas 

law forecloses the argument that state habeas counsel’s ineffectiveness renders the factual basis unavailable at the time of the initial writ. See Ex parte 

Graves, 70 S.W.3d 103, 117 (Tex. Crim. App. 2002). Mendoza concedes this 

point, but argues that Graves should be “reconsider[ed]” in light of Ramirez 

and its subsequent-writ-bar under principles of comity. The opportunity to 

reconsider state court precedent, however, is not in itself enough to grant a 

Rhines stay. Moreover, the district court already analyzed the affidavit evidence and held that there was no “reasonable likelihood that Officer Hinton’s testimony could have affected the judgment of the jury.” 

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VI

As to the four claims for which the district court granted a COA, Mendoza has not shown that trial counsel’s actions in investigating, compiling, 

and presenting mens rea and mitigating evidence fell below an objective standard of reasonableness. As to the remaining claims for which we granted a 

COA, Mendoza has not shown that trial counsel was ineffective for presenting Dr. Vigen’s testimony and Mendoza’s request for a Rhines stay is plainly 

meritless in this context.

We AFFIRM the district court’s judgment and DENY Mendoza’s 

motion for a Rhines stay.

Case: 12-70035 Document: 00516880487 Page: 33 Date Filed: 08/31/2023