United States Court of Appeals

Fifth Circuit



## FILED

October 28, 2003

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-50485

_______________



### A NDREW 

### F

LORES



### ,

Petitioner-Appellant,

VERSUS



### D OUG 

### D RETKE



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

, C ORRECTIONAL I NSTITUTIONS D IVISION

,



### Respondent-Appellee

_________________________

Appeal from the United States District Court

for the Western District of Texas



### m SA-98-CV-1169

_________________________

Before H IGGINBOTHAM

, S MITH , and

C LEMENT , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Andrew Flores applies for a certifica te of

a ppealability (COA) of the denial of his

* Pursuant to 5 T H C IR. R. 47.5, the cou rt has

(continued...) * (...continued)

determined that this opinion should not be published and is not precedent except under the limited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. 47.5.4.2

petition for writ of habeas corpus. 28 U.S.C.

§ 2253(c)(1)(A); M iller-El v. Cockrell , 537

U.S. 322,

___, 123 S. Ct. 1029, 1039 (2003).

We deny the application.

I.

In determining whether to issue a COA, we

conduct an overview of the petitioner’s claims

and make a general assessment of their merits.

The standard of review is whether a petitioner

“has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)-

(1)(A); Miller-El

, 537 U.S. at

___, 123 S. Ct.

at 1039. This threshold showing does not require the petitioner to demonstrate that his appeal will succee d

. Id. Where a district court

rejects a claim on the merits, the petitioner

“‘must demonstrate that reasonable ju rists

would find the district court’ s assessment of

the constitutional claims debatable or wrong.’”

Id. at 1040 (quoting Slack v. McDaniel , 529

U.S. 473, 484 (2000)).

The det ermination of whether a COA

should issue must be made “t hrough the lens

of the deferential scheme laid out in 28 U.S.C.

§ 2254(d).” Barrientes v. Johnson , 221 F.3d

741, 772 (5th Cir. 2000). Under that scheme,

deference to a state court decision is required

for any claim that was adjudicated on the merits in state court, unless the decision was either

“ contrary to, or involved an unreasonab l e

application of, clearly established Federal law,

as determined by the Supreme Court of the

United Stat es,” Y

arborough v. Gentry

, No.

02-1597, 2003 U.S. LEXIS 7701 (U.S. Oct.

20, 2003) (per curiam) (quoting 28 U.S.C. §

2254(d)(1)), or the decision “was based on an

unreasonable determination of the facts in light

of the evidence presented in the state court

proceeding,” 28 U.S.C. § 2254(d)(2).

Section 2254(d)(1) speaks to que sti ons of

law and mixed questions of fa ct and law resolved by the state courts. S ee Moore v. Johns on

, 225 F.3d 495, 501(5th Cir. 2000 ). The

phrase “clearly established federal law” refers

to the “holdings, as oppos ed to the di cta of

[the Supreme Court’s] decisions as of the time

of the relevant state-court decision.” Williams

v. Taylor

, 529 U.S. 362, 412 (2000). Under

the related § 2254(e)(1), a federal habeas court

will presume correct the factual findings of the

state court unless t he petitioner “rebut[s] the

presumption of correctnes s by clear and

convincing evidence.” S ee also Miller-El

, 537

U.S. at ___, 123 S. Ct. at 1042.

II.

Flores asserts that he was not competent to

make his plea and that it was not entered into

knowingly, intelligently, and voluntarily. With

respect to his competence, Flores asserts that

he suffers from psychological and neurological

impairm ent s t hat prevented him from

completely understanding the proceedings

aga inst him. Therefore, he argues, there is

room for reasonable jurists to differ on whether his impairment s prevented him from being

able to make the rational choices necessary to

enter a guilty plea.

The test for deciding compet ence to enter

a gu ilt y plea is “whether [defendant] has sufficient present abilit

y to consult with his lawyer

w ith a reasonable degree of ration a l

understanding 

### SS

and whether he has a rational

as well as factual understanding of the

proceed ings against him.” D usky v. United

States

, 362 U.S. 402, 402 (1960) (per curiam);

see also Godinez v. M

oran , 509 U.S. 389,

398-99 (1993). Because a state court’s

com p etency finding is presumed correct, a

petitioner bears a heavy burden in con testi ng

his competency du ring federal collateral

review. DeVille v. Whitl e y

, 21 F.3d 654, 656

(5th Cir. 1994).3

In arguing that he was incompetent to enter

a guilty plea, Flores relies on (1 ) a history of

childhood sexual and physical abuse, long-term

drug abuse, and resulting emotional and

organic brain impairments; (2) the testimony of

psychi at rist Ray

mond Potterf at the

evidentiary heari n g held during the state

habeas proceeding, which Flores contends

established that, because o f his mental

impairments, he tends to respond to authori ty

figures in “almost a frozen status

. . . very

fearful”; (3) Potterf’s testimony th at Fl ores

would “probably go along with” a directive

from an attorney ; and (4) Potterf’s suggestion

that if Flores were d irect ed by an authority

figure, he would ple a d guilty to “take the

choice that would get him out of the situation

as quickly as possible.” Potterf, however, disavowed any personal knowledg e o f, and did

not express any opinion as to whether, Flores

actually experienced hi s “frozen state” at a

t ime near entering his guilty plea, or that he

felt pressured to plead guilty by his attorney.

Ultimately, P o t terf expressed the opinion

that Fl o res was competent to enter his guilty

plea. Moreover, Flores has presented no evidence that he suffered from a “froz en status”

at o r near the time he entered his guilty plea.

During trial, the state judge observ ed that

“[t]hroughout the proceedings, from pre-trial

through his punishment phase, [Flores]

displayed through his testimony, his

mannerisms, his disposition, and his behavior,

that he was competent as defined.”

Moreover, the federal district court noted

that there is no evidence that Flores’s attorney

ever asked or pressured him t o plead guilty.

A ccordingly, the state court mad e no

“unreasonable i n terpretati on of the facts in

light of the evidence presented,” Godinez

, 509

U.S. at 400, in c o ncluding that Flores was competent to enter a guilty plea.

Although Flores also asserted that his guilty

plea was not made knowing ly, intelligently,

and voluntarily, 1 he was admonished at length

by the trial court regarding the nature and consequences of a guilty plea. As the federal district court observed, Flores represented, on the

record in open court, that he was pleading

guilty because he was g uilty and for no other

reason, that no threats or promises induced his

plea, that he understood that he would receive

either a life sentence without parole for thirtyfive years or the death penalty, that he was

waiving the right to a jury trial, that he was

pleadi ng o f his own free will, and that he understood that his plea was an admission to all

the elements of his offense.

Flores argues that despite all this, his

aforement ioned mental and emotional

impairments forced him to respond to the

authority of the court in a fearful and “frozen

status.” Again, he relies on Potterf’s

testimony. To the contrary, however, the trial

court’s obse rvation of Flores’s demeanor

during the guilty plea hearing and throughout

the trial gave no indication that Flores

experienced such an episode. He likewise has

produced no evidence that he experienced the

“frozen status” about which Potterf

speculated.

We see no reason to differ with the district

court’s conclusion that Flores’ plea was

knowing, intelligent , and voluntary.

Accor dingly, the state court made no

“unreaso n able interpretation of the facts in

light of evidence presented” in so concluding.

1 See Godinez

, 509 U.S. at 400; B oykin v.

Alabama , 395 U.S. 238, 244 (1969); T aylor v

. Whitney , 933 F.2d 325, 329 (5th Cir. 1991).4

See Godinez , 509 U.S. at 400.

III.

Flores contends that his trial attorney was

ineffective in two respects, depriving him of

h is Sixth Amendment right to counsel. First

, he argues that counsel was inadequate by failin g to object to the trial court’s decision to

grant the prosecutor’s challenge for ca use of

a venireman, which failure waived the issue for

appellate review. Second, Flores asserts that

his attorney failed to present mitigating details

about his background and history, which he

suggests would have swayed j urors to spare

his life.

To prev ail o n a claim of ineffective assistance, a habeas petitioner must satisfy the twopronged test in Strickland v. Washington

, 466

U.S. 668, 687 (1984). He must show (1) that

counsel rendered defi cient performance and

(2) that counsel’s deficiency resulted in actual

prejudice. For a federal court to grant habeas

relief for ineffective assistance, the “state court

must have unr easo nably applied the [ Washington ] standard.” S antellan v. Cockrell

, 271

F.3d 190, 198 (5th Cir. 2001). A petitioner

must show that “in light of all circumstances,”

his representation “ f

ell below an objective

standard of

reasonableness” or “prevailing professional norms.” W

ash ington , 466 U.S. at

688-90; see Gent ry , 2003 U.S. LEXIS 7701,

at *6-*7. Judicial scrutiny of the counsel’s

performance must be “highly deferential” and

cognizant of the “distorting ef fect of

hindsight.” Washington , 466 U.S. at 689-90.

A.

Flores’ first argument stems from the failure

of h is attorney to object to the prosecution’s

challenge to prospective juror Roundtree, who

said that she strongly opp osed the death

penalty i n all circumstances. The proper standard for determi n ing when a prospective

juror may be excluded for cause because of his

views on capital punishment is to decide

whether “the juror’s views would ‘prevent or

substantially impair the performance of his duties as a juror in

acco rdance with his instructions and his oath.’” W

ainw right v. Witt , 469

U.S. 412, 424 (1985) (quoting Adams v. Texas , 448 U.S. 12, 45 (1980)).

Roundtree informed the court and the parties that she did not believe in capital p unishment and did not wish to serve on a jury where

the death penalty was an opti on. She

repeatedly insisted that she would not answer

th e special issues based on the evidence if

those answers resulted in the death penalty and

would not obey the court’s instructions

regarding the law. These circumstances

constituted a “substantial i mpairment” to her

abilit y to answer t he punishment issues, and

thus she was properly subject to a challenge

for cause. Flores urges that Roundtree never

said she would “consciously distort” her

answer during the punishment phase, but such

an express articulation of a substantial

impairment of her abilit y to answ e r the

punishment issues is unnecessary 

### S S she was

properly subject to a challenge for cause.

Flores’s lawyer reasonably could have concluded the same and realized that his objection

would have been frivolous. A “[f]ailure to

make a frivolous objection does not cause

counsel’s perform ance to fall below an

objective level of reasonab leness.” G reen v.

Johnson

, 160 F.3d 102 9

, 1037 (5th Cir.

1998))

B.

Flores claims deficient counsel with respect

to his attorney’s failure to investi gat e and introduce, as mitigation evidence, elemen ts of5

his background and mental disposition during

the sentencing proceedings. As the district

court observed, however, Flores presented no

evidence to support the claim that his trial attorney’s investigation was unreasonable.

The important question is whether counsel

was inadequate in failing to introduce the suggested elements at trial. Flores argues that his

attorney should h ave presented “evidence of

the neurologic brain

impairment of the

Applicant, the history of physical a n d sexual

abuse of the Applicant, the lack of a father

figure for the Appl

icant during his formative

years, the Applicant’s severe problems in

identity cri s is, the drug history of the

Applicant and his siblings, and the intoxication

of the Appli cant during the time of the

offense.” Flores also produced a juror from

his c ase, Ms. Zuazua, who says that had she

heard the details about Flores’s traumatic

childhood, she would not have voted f or the

death penalty.

We must, however, judge Flores’ counsel’s

decisi o ns relative to the circumstances at the

t ime. W ashington

, 466 U.S. at 688-90. As

the district court observed, Flores’s suggested

background information 

### SS of a history of crisis

and vi olence 

### S

S cuts both ways. His lack of

s elf-control and his history of violence and

drug abuse, especially, demonstrate violent

and unstable propensities. At trial, Flores’s att o rney took the approach of highlighting his

good side, bringing witnesses to testify to his

good character and arguing that the murder

was an aberration. Introducing the evidence

that Flores now suggests would have

undermined that strategy.

In short, the district court reasonably concluded that Flores’s attorney had valid strategic reasons for shift ing focus away from Flores’s troubles. It accordingly was not deficient

p e rformance to decline to introduce the

subject evidence in mitigation.

The application for COA is DENIED.