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

_______________

ANDREW FLORES,

Petitioner-Appellant,

VERSUS

DOUG DRETKE,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

_________________________

Appeal from the United States District Court

for the Western District of Texas

m SA-98-CV-1169

_________________________

Before HIGGINBOTHAM, SMITH, and

CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Andrew Flores applies for a certificate of

appealability (COA) of the denial of his

*

 Pursuant to 5TH CIR. R. 47.5, the court has

(continued...)

*

(...continued)

determined that this opinion should not be published and is not precedent except under the limited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.
2

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

§ 2253(c)(1)(A); Miller-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 constitutionalright.” 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 succeed. Id. Where a district court

rejects a claim on the merits, the petitioner

“‘must demonstrate that reasonable jurists

would find the district court’s assessment of

the constitutionalclaims debatable or wrong.’”

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

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

The determination of whether a COA

should issue must be made “through the lens

of the deferentialscheme 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 meritsin state court, unlessthe decision was either

“contrary to, or involved an unreasonable

application of, clearly established Federal law,

as determined by the Supreme Court of the

United States,” Yarborough 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 ofthe factsin light

of the evidence presented in the state court

proceeding,” 28 U.S.C. § 2254(d)(2). 

Section 2254(d)(1) speaks to questions of

law and mixed questions of fact and law resolved by the state courts. See Moore v. Johnson, 225 F.3d 495, 501(5th Cir. 2000). The

phrase “clearly established federal law” refers

to the “holdings, as opposed to the dicta of

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

ofthe relevantstate-court decision.” Williams

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

the related § 2254(e)(1), a federalhabeas court

will presume correct the factualfindings ofthe

state court unless the petitioner “rebut[s] the

presumption of correctness by clear and

convincing evidence.” See also Miller-El, 537

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

II.

Flores assertsthat 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 suffersfrompsychological and neurological

impairments that prevented him from

completely understanding the proceedings

against him. Therefore, he argues, there is

room for reasonable juriststo differ on whether his impairments prevented him from being

able to make the rational choices necessary to

enter a guilty plea.

The test for deciding competence to enter

a guilty plea is “whether [defendant] has sufficient present abilityto consult with hislawyer

with a reasonable degree of rational

understandingSSand whether he has a rational

as well as factual understanding of the

proceedings against him.” Dusky v. United

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

see also Godinez v. Moran, 509 U.S. 389,

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

competency finding is presumed correct, a

petitioner bears a heavy burden in contesting

his competency during federal collateral

review. DeVille v. Whitley, 21 F.3d 654, 656

(5th Cir. 1994).
3

In arguing that he wasincompetent to enter

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

childhood sexualand physical abuse, long-term

drug abuse, and resulting emotional and

organic brainimpairments;(2)the testimonyof

psychiatrist Raymond Potterf at the

evidentiary hearing held during the state

habeas proceeding, which Flores contends

established that, because of his mental

impairments, he tends to respond to authority

figures in “almost a frozen status . . . very

fearful”; (3) Potterf’s testimony that Flores

would “probably go along with” a directive

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

that if Flores were directed by an authority

figure, he would plead guilty to “take the

choice that would get him out of the situation

as quickly as possible.” Potterf, however, disavowed any personal knowledge of, and did

not express any opinion as to whether, Flores

actually experienced his “frozen state” at a

time near entering his guilty plea, or that he

felt pressured to plead guilty by his attorney. 

Ultimately, Potterf expressed the opinion

that Flores was competent to enter his guilty

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

at or near the time he entered his guilty plea.

During trial, the state judge observed 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 to plead guilty.

Accordingly, the state court made no

“unreasonable interpretation of the facts in

light ofthe evidence presented,” Godinez, 509

U.S. at 400, in concluding that Flores was

competent to enter a guilty plea.

Although Flores also asserted that his guilty

plea was not made knowingly, intelligently,

and voluntarily,1he was admonished at length

by the trial court regarding the nature and consequences of a guilty plea. As the federal district court observed, Floresrepresented, onthe

record in open court, that he was pleading

guilty because he was guilty and for no other

reason, that no threats or promisesinduced 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

pleading of 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

aforementioned 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 observation 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.

Accordingly, the state court made no

“unreasonable interpretation of the facts in

light of evidence presented” in so concluding.

1

See Godinez, 509 U.S. at 400; Boykin v.

Alabama, 395 U.S. 238, 244 (1969); Taylor 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

his Sixth Amendment right to counsel. First,

he argues that counsel was inadequate by failing to object to the trial court’s decision to

grant the prosecutor’s challenge for cause 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 jurors to spare

his life.

To prevail on 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 deficient performance and

(2) that counsel’s deficiency resulted in actual

prejudice. For a federal court to grant habeas

relieffor ineffective assistance, the “state court

must have unreasonably applied the [Washington] standard.” Santellan v. Cockrell, 271

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

must show that “in light of all circumstances,”

his representation “fell below an objective

standard of reasonableness” or “prevailing professional norms.” Washington, 466 U.S. at

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

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

performance must be “highly deferential” and

cognizant of the “distorting effect of

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

A.

Flores’first argumentstemsfromthe failure

of his attorney to object to the prosecution’s

challenge to prospective jurorRoundtree, who

said that she strongly opposed the death

penalty in all circumstances. The proper

standard for determining 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 accordance with his instructions and his oath.’” Wainwright 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 punishment and did not wish to serve on a jury where

the death penalty was an option. She

repeatedly insisted that she would not answer

the special issues based on the evidence if

those answersresulted in the death penalty and

would not obey the court’s instructions

regarding the law. These circumstances

constituted a “substantial impairment” to her

ability to answer the 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 ability to answer the

punishment issues is unnecessarySSshe was

properly subject to a challenge for cause.

Flores’slawyer 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 performance to fall below an

objective level of reasonableness.” Green v.

Johnson, 160 F.3d 1029, 1037 (5th Cir.

1998))

B.

Flores claims deficient counselwith respect

to his attorney’s failure to investigate and introduce, as mitigation evidence, elements of
5

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 have presented “evidence of

the neurologic brain impairment of the

Applicant, the history of physical and sexual

abuse of the Applicant, the lack of a father

figure for the Applicant during his formative

years, the Applicant’s severe problems in

identity crisis, the drug history of the

Applicant and hissiblings, and the intoxication

of the Applicant during the time of the

offense.” Flores also produced a juror from

his case, Ms. Zuazua, who says that had she

heard the details about Flores’s traumatic

childhood, she would not have voted for the

death penalty.

We must, however, judge Flores’ counsel’s

decisions relative to the circumstances at the

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

the district court observed, Flores’ssuggested

background informationSSof a history of crisis

and violenceSScuts both ways. His lack of

self-control and his history of violence and

drug abuse, especially, demonstrate violent

and unstable propensities. At trial, Flores’s attorney 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 shifting focus away from Flores’s troubles. It accordingly was not deficient

performance to decline to introduce the

subject evidence in mitigation.

The application for COA is DENIED.