IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-70036

MANUEL GARZA,

Petitioner - Appellant,

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division,

Respondent - Appellee.

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, ELROD, and GRAVES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

In 2002, a Texas jury found Manuel Garza guilty of murdering San 

Antonio Police Officer John Riojas, and the state trial court imposed a sentence 

of death. The Texas Court of Criminal Appeals affirmed Garza’s conviction 

and sentence on direct appeal and denied post-conviction relief. In an 

exhaustive opinion, the district court denied Garza’s federal habeas petition 

and denied him a certificate of appealability (“COA”). Garza now seeks a COA 

so that he may pursue his Strickland ineffective-assistance-of-counsel claims 

in this court. We conclude that reasonable jurists would not debate the district 

court’s decision to deny habeas relief on Garza’s Strickland claims. We 

therefore deny his request for a COA.

United States Court of Appeals

Fifth Circuit

FILED

December 20, 2013

Lyle W. Cayce

Clerk

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I.

On February 2, 2001, Officer Riojas stepped out of his marked police car 

and approached Garza on a street in San Antonio, Texas. Officer Riojas asked 

Garza for his name. Garza knew that several warrants for his arrest were 

outstanding. When Officer Riojas asked Garza to place his hands on the police 

car, Garza sprinted away, explaining later: “As I started running the cop was 

telling me to stop. I just wanted to get away. I knew I was gonna go to jail and 

I didn’t want that.” Officer Riojas gave chase, eventually catching up to and 

physically engaging Garza. In the course of the altercation, Officer Riojas drew 

his firearm, which Garza wrested away. Garza fired one shot, killing Officer 

Riojas. Garza was arrested two days later. 

A grand jury indicted Garza on one count of capital murder for the 

shooting death of Officer Riojas.1 The state trial court appointed two attorneys 

to represent Garza, Vincent Callahan as lead counsel and Edward Camara as 

second chair. The guilt/innocence phase of the trial commenced in October 

2002. After the jury returned a guilty verdict, the punishment phase ensued. 

The jury answered affirmatively to the special issues submitted under Article 

37.071 of the Texas Code of Criminal Procedure––i.e., the jury found that there 

was a probability that Garza would commit criminal acts of violence 

constituting a continuing threat to society and that the mitigating 

circumstances were not sufficient to warrant a sentence of life instead of death. 

Accordingly, the trial court imposed a sentence of death. 

The Texas Court of Criminal Appeals affirmed Garza’s conviction and 

sentence on direct appeal. Garza v. State, No. 74,467, 2005 WL 395442 (Tex. 

Crim. App. Feb. 16, 2005). Garza filed his first state application for a writ of 

1 A person commits capital murder in Texas when the person intentionally and 

knowingly causes the death of a police officer who is acting in the lawful discharge of an 

official duty and who the person knows is a police officer. Tex. Penal Code Ann. § 19.03(a)(1).

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habeas corpus in 2004. In 2008, after a hearing, the state habeas court issued 

findings of fact and conclusions of law, recommending that the application be 

denied. The Texas Court of Criminal Appeals adopted the state habeas court’s 

findings and conclusions and denied habeas relief. Ex Parte Garza, No. 

70,797–01, 2008 WL 5245545 (Tex. Crim. App. Dec. 17, 2008). Garza filed his 

original federal habeas petition in 2009. The district court granted a motion 

to stay those proceedings to allow Garza to return to state court and exhaust 

remedies based on new claims and evidence. The Texas Court of Criminal 

Appeals dismissed the second state habeas application as an abuse of the writ. 

Ex Parte Garza, No. 70,797–02, 2011 WL 4826968 (Tex. Crim. App. Oct. 12, 

2011). Garza filed his amended federal habeas petition in 2012, which the 

district court denied. Garza v. Thaler, 909 F. Supp. 2d 578, 691 (W.D. Tex. 

2012). The district court also denied Garza a COA. Id. Garza now requests 

a COA from this court.

II.

The AEDPA governs our consideration of Garza’s request for a COA. 

Under the AEDPA, a state habeas petitioner must obtain a COA before he can 

appeal the federal district court’s denial of habeas relief. 28 U.S.C. 

§ 2253(c)(1)(A); see Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (describing 

a COA as a “jurisdictional prerequisite” without which “federal courts of 

appeals lack jurisdiction to rule on the merits of the appeals from habeas 

petitioners”). A COA is warranted upon a “substantial showing of the denial 

of a constitutional right.” § 2253(c)(2). A petitioner satisfies this standard if 

“reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000). To obtain a COA when the district court has denied relief on 

procedural grounds, such as procedural default, a petitioner must show both a 

debatable claim on the merits and that the district court’s procedural ruling is 

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debatable. See id. at 484–85. The issue is “the debatability of the underlying 

constitutional claim, not the resolution of the debate.” Miller–El, 537 U.S. at 

342; see id. at 338 (“[A] claim can be debatable even though every jurist of 

reason might agree, after the COA has been granted and the case has received 

full consideration, that petitioner will not prevail.”). “This threshold inquiry 

does not require full consideration of the factual or legal bases adduced in 

support of the claims. In fact, the statute forbids it.” Id. at 336. In cases 

involving the death penalty, “any doubts as to whether a COA should issue 

must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 

243, 248 (5th Cir. 2000).

We evaluate the debatability of Garza’s constitutional claims against the 

backdrop of the AEDPA’s highly deferential standard. Under the AEDPA, a 

federal court may not grant habeas relief unless the petitioner has first 

exhausted state remedies with respect to the claim at issue. 28 U.S.C. 

§ 2254(b). To prevail, the habeas petitioner must prove that the state court’s 

constitutional adjudication resulted in either “a decision that was contrary to, 

or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States,” or “a decision that 

was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” § 2254(d)(1)–(2). Clearly 

established federal law is comprised of “the holdings, as opposed to the dicta, 

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). A state-court decision 

is contrary to clearly established federal law when it “arrives at a conclusion 

opposite to that reached by [the Supreme] Court on a question of law or if the 

state court decides a case differently than [the Supreme] Court has on a set of 

materially indistinguishable facts.” Id. at 413. A state-court decision fails the 

“unreasonable application” prong if it “identifies the correct governing legal 

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principle from [the Supreme] Court’s decisions but unreasonably applies that 

principle to the facts of the prisoner’s case.” Id. When ruling on a petition for 

a writ of habeas corpus, the federal district court must defer to the state court’s 

factual findings, Moody v. Quarterman, 476 F.3d 260, 267–68 (5th Cir. 2007), 

and consider only the record that was before the state court, Cullen v. 

Pinholster, 131 S. Ct. 1388, 1398 (2011).

III.

In support of his application for a COA, Garza argues that he received 

ineffective assistance of counsel because his trial counsel: (1) failed to submit 

appropriate death penalty questions to the potential jurors during jury 

selection; (2) failed to call an investigator as a witness and failed to introduce 

hospital records at the guilt/innocence phase; and (3) failed to present 

mitigating evidence at the punishment phase. Garza contends that reasonable 

jurists would debate the correctness of the district court’s decision to deny 

relief. Below, we set forth the Strickland ineffective-assistance-of-counsel 

standard. We then turn to Garza’s claims.

A.

To prevail on an ineffective-assistance-of-counsel claim, a defendant 

must show, first, that counsel’s performance was deficient and, second, that 

such deficient performance prejudiced the defense. Strickland v. Washington, 

466 U.S. 668, 687 (1984) (denying relief to a habeas petitioner challenging a 

death sentence). As a general matter, this two-pronged approach requires the 

defendant to demonstrate that counsel’s errors were “so serious as to deprive 

the defendant of a fair trial, a trial whose result is reliable.” Id. The defendant 

must meet both prongs; otherwise, “it cannot be said that the conviction or 

death sentence resulted from a breakdown in the adversary process that 

renders the result unreliable.” Id. 

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The first Strickland prong requires the defendant to show that counsel’s 

representation “fell below an objective standard of reasonableness.” Id. at 688. 

Any such showing must overcome a “strong presumption” that the 

representation did fall “within the wide range of reasonable professional 

assistance.” Id. at 689. Under the second prong, when a death sentence is at 

issue, “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. 

“A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” Id. at 694. The Supreme Court has recently pronounced that

the likelihood of a different outcome must be “substantial, not just 

conceivable.” Harrington v. Richter, 131 S. Ct. 770, 791–92 (2011).

Because this case arises under the AEDPA, Strickland is not the only 

standard we must keep in mind. When a petitioner brings a Strickland claim 

under the AEDPA, “[t]he pivotal question is whether the state court’s 

application of the Strickland standard was unreasonable.” Richter, 131 S. Ct. 

at 785. Both the Strickland standard and the AEDPA standard are “highly 

deferential” and “when the two apply in tandem, review is doubly so.” Id. at 

788 (internal quotation marks omitted). Therefore, even if Garza is able to 

make out a Strickland claim, we may not grant a COA unless Garza is able to 

show that, under the § 2254(d) standard, the district court’s denial of the 

petition was “debatable or wrong.” See Slack, 529 U.S. at 484.

B.

1.

In support of his claim that trial counsel in this case failed to ask 

potential jurors about their views on the death penalty, Garza identifies in his 

brief the general terms of the questions and answers at voir dire. Garza 

observes that the jurors were asked questions regarding their views on, inter 

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alia, (1) the death penalty, (2) hypothetical situations involving murder and 

the death penalty, (3) mercy, (4) self-defense, (5), guns and gun ownership, (6) 

jurors’ obligations to be fair and impartial, and (7) the definition of 

“probability.” Garza asserts that trial counsel failed to determine whether the 

jurors had “dogmatic views” on the death penalty as it might apply to Garza’s 

case––i.e., a case in which an individual murders a police officer. Garza argues 

that such views, if held, would call into question whether the jurors were truly 

fair and impartial. Garza further argues that trial counsel was deficient 

because the “risk that such jurors may have been impaneled” could have been 

“minimized” if trial counsel had asked further questions about the jurors’ 

specific views. The state argues that this claim is barred by procedural default. 

The district court agreed and further concluded that Garza had not established 

“cause” for the default. Garza, 909 F. Supp. 2d at 614, 624.

A federal habeas claim is barred by procedural default when the state 

court has rejected the claim pursuant to a state procedural rule that provides 

an adequate basis for the decision, independent of the merits of the claim. 

Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008) (citing Coleman v. 

Thompson, 501 U.S. 722, 729–32 (1991)). Garza did not raise this claim in his 

first state habeas application. Garza raised the claim for the first time in his 

second state habeas application, which the Texas Court of Criminal Appeals

dismissed as an abuse of the writ. Our circuit has consistently held that such 

a dismissal in Texas2 is “an independent and adequate state ground for the 

2 Texas’s abuse-of-the-writ doctrine prohibits a defendant in a death penalty case from 

bringing a subsequent application for a writ of habeas corpus unless the application contains 

specific facts showing that: (1) the claim could not have been presented in the initial 

application because the factual or legal basis for the claim was unavailable at the time the 

initial application was filed; (2) no rational juror could have found the defendant guilty; or 

(3) no rational juror would have answered the special issues in the state’s favor. Tex. Code 

Crim. Proc. art. 11.071, § 5.

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purpose of imposing a procedural bar” in federal habeas cases. Hughes, 530 

F.3d at 342 (collecting cases). Garza does not dispute the propriety of the

dismissal as an abuse of the writ. Accordingly, the district court’s decision that 

Garza’s voir dire-based Strickland claim is procedurally barred is not 

debatable. See Slack, 529 U.S. at 484–85. 

Federal review of the merits of a procedurally-barred claim is permitted, 

however, where the petitioner is able to “‘demonstrate cause for the default 

and actual prejudice as a result of the alleged violation of federal law.’”3 

Hughes, 530 F.3d at 341 (quoting Coleman, 501 U.S. at 735). The Supreme 

Court recently expanded this “cause” exception in Martinez v. Ryan, 132 S. Ct. 

1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). Where, as in Texas, 

the state procedural framework makes it highly unlikely that a defendant will 

have a meaningful opportunity to raise on direct appeal a claim of ineffective 

assistance at trial, a “‘procedural default will not bar a federal habeas court 

from hearing a substantial claim of ineffective assistance at trial if, in the 

initial-review collateral proceeding, . . . counsel in that proceeding was 

ineffective.’” Id. at 1921 (quoting Martinez, 132 S. Ct. at 1320). Therefore, to 

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

ineffective assistance of counsel at trial is “substantial”––i.e., “has some 

merit”––and (2) that habeas counsel was ineffective in failing to present those 

claims in his first state habeas proceeding. See Martinez, 132 S. Ct. at 1318.

3 In addition, review on the merits is permitted if the petitioner can “‘demonstrate 

that failure to consider the claim[] will result in a fundamental miscarriage of justice.’” 

Hughes, 530 F.3d at 341 (quoting Coleman, 501 U.S. at 735). This exception is limited to 

cases in which the petitioner can show that “a constitutional violation has probably resulted 

in the conviction of one who is actually innocent.” Dretke v. Haley, 541 U.S. 386, 393 (2004) 

(internal quotation marks omitted). Garza does not argue that he is actually innocent. We 

therefore do not address this exception to procedural default.

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The district court concluded that, under Martinez, there was no merit to 

Garza’s claim and that therefore habeas counsel was not ineffective in failing 

to raise the claim at the first state proceeding. Garza, 909 F. Supp. 2d at 624. 

We agree. Strickland requires both deficient performance and prejudice. 

Garza utterly fails to satisfy Strickland’s second prong, relying solely on 

speculation. Indeed, Garza does not even argue that, without the alleged 

errors, there is a reasonable probability that the jury would not have answered 

the special issues in the state’s favor. Instead, Garza argues that, because 

Callahan did not ask what the jurors would do in a case exactly like this one, 

the jurors may not have been fair and impartial. Garza therefore fails to 

establish that he suffered prejudice as a result of trial counsel’s alleged error. 

Moreover, Garza cites no authority, and we have found none, that would 

require a defense attorney to ask specific questions at voir dire. Although a 

complete failure to inquire into the jurors’ views on the death penalty in a 

capital case might be unreasonable, trial counsel did in fact ask some questions 

dealing with the death penalty. Garza’s claim of ineffectiveness is also

undercut by his failure to provide any information about the jurors’ answers to 

the questions posed in the written juror questionnaires and during voir dire 

examination by the prosecution. As the district court noted, “the prosecuting 

attorneys asked each of the[] venire members extensive questions regarding 

their views on the death penalty and made numerous references to the venire 

members’ juror questionnaire answers.” Garza, 909 F. Supp. 2d at 616. We 

must consider the full scope of the questions asked and answers given at voir 

dire to meaningfully evaluate the adequacy of trial counsel’s attempts to 

identify juror bias. Because Garza cannot overcome the “strong presumption” 

that trial counsel’s representation fell “within the wide range of reasonable 

professional assistance,” see Strickland, 466 U.S. at 689, his claim of ineffective 

assistance has no merit. Accordingly, Garza has failed to demonstrate, under 

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Trevino and Martinez, “cause” for the procedural default. This claim is not 

COA-worthy.

2.

In his second claim, Garza alleges that trial counsel’s failure to introduce 

two pieces of evidence––prior inconsistent statements made by one of the 

state’s witnesses and medical records allegedly supporting the theory that 

Garza acted in self-defense––amounted to a Strickland violation. The district 

court denied this claim, concluding that Garza failed to meet the heavy 

Strickland/AEDPA burden. Garza, 909 F. Supp. 2d at 653, 655–56.

Garza’s claim that trial counsel rendered ineffective assistance by failing 

to introduce inconsistent statements made by a state’s witness is grounded in 

the testimony offered by Erica Henderson. Henderson testified on direct 

examination at trial that she had seen the altercation between Garza and 

Riojas; that Garza had possession of the gun; that she saw and heard the 

gunshot; and that Riojas’s hands were nowhere near the gun when the shot 

was fired. On cross-examination Henderson admitted that she had previously 

stated to a defense investigator, Jeff Mitchell, that the altercation, as well as 

the gunshot, might have been “an accident.” Garza now argues that trial

counsel should have introduced the testimony of Mitchell for the purpose of 

impeaching Henderson. Garza also argues that certain medical records 

indicate that he “t[ook] a beating, lending validity to his claim of self defense.” 

Garza contends that trial counsel’s failure to introduce these two pieces of 

evidence at the guilt/innocence phase amounted to ineffective assistance of 

counsel.

The state habeas court concluded that, because Henderson admitted to 

the prior inconsistent statement, the defense would not have been permitted 

to introduce extrinsic evidence of that statement under the Texas Rules of 

Evidence. Similarly, the state habeas court concluded that the medical records 

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would have been inadmissible under the Texas Rules of Evidence because

nothing in the records reflected that any injuries were caused by the victim. 

In denying relief, the state habeas court reasoned that counsel cannot be 

ineffective for failing to attempt to introduce inadmissible evidence. The 

federal district below dismissed the claim on similar grounds. Garza, 909 F. 

Supp. 2d at 654.

“The Supreme Court has ‘repeatedly held that a state court’s 

interpretation of state law . . . binds a federal court sitting in habeas corpus.’” 

Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009) (quoting Bradshaw 

v. Richey, 546 U.S. 74, 76 (2005)). The Texas habeas court’s interpretation of 

Texas evidentiary rules is therefore binding in this case. We will not disturb 

the state habeas court’s conclusion that trial counsel’s failure to attempt to 

introduce inadmissible evidence did not amount to deficient performance. See 

Paredes, 574 F.3d at 291 (“[C]ounsel did not act deficiently by failing to raise a 

meritless objection.”). We also observe that the failure to make a meritless 

attempt at introducing evidence could not have prejudiced Garza because the 

evidence ultimately would not have been introduced.4 See id. at 291 n.13. 

Regarding the medical records, Garza does not provide any specific facts 

as to why such records would have changed the outcome, given the other, 

overwhelming evidence that Garza did not act in self-defense. Garza’s own 

confessions, which were admitted into evidence, reveal that he did not act to 

protect himself against unlawful force, but instead to avoid being sent to jail.

Garza took the gun out of Officer Riojas’s hands and pulled the trigger because 

he “wanted to get away.” Furthermore, evidence of Garza having been involved 

in an altercation, which is precisely what Garza contends the medical records 

4 Moreover, the record reflects that the witness was in fact confronted with the 

inconsistent statement on cross-examination. 

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would have shown, was already in the record. For example, a witness testified 

at trial that Garza said he had been in a fight and that Garza had bruises on 

his neck. We therefore conclude that the state habeas court’s Strickland

adjudication was not the result of an unreasonable application of federal law 

or based on an unreasonable determination of the facts. See § 2254(d)(1)–(2). 

Jurists of reason would not debate the district court’s denial of relief on this 

second claim. See Slack, 529 U.S. at 484.

3.

Garza alleges in his final claim that trial counsel failed to adequately 

develop mitigating evidence. Garza alleges that he was severely abused and 

neglected during his childhood; that he never lived in a stable household; that 

his family taught him to lead a life filled with drugs and crime; and that he 

suffers from a host of psychological problems related to fetal alcohol syndrome. 

Garza argues that trial counsel rendered ineffective assistance by failing to 

adequately investigate these problems and incidents and failing to present 

such evidence to the jury at the punishment phase. As the district court 

observed, the argument relating to fetal alcohol syndrome was raised for the 

first time in the second state habeas application, which the Texas Court of 

Criminal Appeals dismissed as an abuse of the writ. Garza, 909 F. Supp. 2d 

at 633–34. Because, in the proceedings below, the state failed to request 

dismissal as to the fetal-alcohol-syndrome argument on procedural grounds, 

the district court assessed that argument de novo. Id. at 634. We first address 

the exhausted aspect of the mitigating-evidence claim and then turn to the 

unexhausted fetal-alcohol-syndrome aspect of the claim. 

During the punishment phase of Garza’s trial, trial counsel called three 

witnesses on Garza’s behalf: Garza’s uncle, mother, and sister. These 

witnesses testified to the prevalence of crime in Garza’s family; to the 

instability of Garza’s household; to the physical abusiveness of Garza’s father; 

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to the sexual abusiveness of Garza’s father; and to Garza’s behavioral problems 

in his youth. The witnesses also described Garza’s mother favorably, testifying 

that she was a caring woman who loved her son. Furthermore, the witnesses 

offered their opinions that Garza would not pose a continuing danger to society. 

Garza’s Texas Youth Commission (“TYC”) file, detailing his background and 

the criminal history of his youth, was also admitted. The TYC file included 

three separate psychological evaluations, which were performed in 1996, 1997, 

and 1998 following convictions for robbery, burglary, and drug crimes. Dr. Ben 

Ferguson’s evaluation concluded that Garza was “negative towards authority,” 

had “difficulty internalizing society’s values,” and was “impulsive,” and that 

Garza’s gang membership was a contributing force behind his anti-social 

behavior.

In support of his claim that trial counsel failed to adequately investigate 

his background, Garza argues that trial counsel should have called a different

uncle, Raul Gonzales, to testify. Gonzales testified at the first state habeas 

hearing. There, Gonzales reiterated many of the same facts and opinions that 

the punishment-phase witnesses had discussed––e.g., that Garza had suffered 

a life of abuse, crime, and drugs. The state habeas court concluded that this 

testimony was merely cumulative of the testimony offered at the punishment 

phase and that therefore trial counsel’s failure to introduce this evidence did 

not render his assistance defective.

Garza also argues that trial counsel should have called an expert. In 

support, Garza points to the expert testimony of Dr. Jack Ferrell, which was

also offered at the first habeas hearing. Ferrell, who was engaged by the 

defense to perform a mental health evaluation of Garza prior to Garza’s trial, 

testified at the habeas hearing that he would have testified at the punishment 

phase that Garza did not pose a risk of future dangerousness. But he also 

testified that, prior to the trial, he had “concerns” about testifying to the 

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absence of future dangerousness after reviewing some of the documents 

provided to him by trial counsel.5 Furthermore, Ferrell admitted at the habeas 

hearing that he was unaware that Garza had been convicted previously for the 

unlawful possession of a weapon and that he did not remember anything about 

a burglary offense in which Garza used a screwdriver as a weapon. Had Ferrell 

known about these incidents, he testified, he would have factored them into 

his analysis of future dangerousness. Ferrell testified that he had reviewed 

only a few documents pertaining to Garza’s background and performed only a 

brief, limited clinical evaluation of Garza for the purpose of ascertaining 

Garza’s mental status.

Dr. Kate Allen also testified at the habeas hearing to what she could 

have offered at trial. Allen admitted that future dangerousness was beyond 

the scope of her expertise. Allen did testify, though, to Garza’s non-violent 

nature, identifying Garza as “passive” and as one who was “not a confronter.” 

Allen based her testimony on an analysis of a set of “risk” factors––i.e., 

behavioral factors that show a propensity for future violence––and “protective” 

factors––i.e., behavioral factors that show a propensity for non-violence. Yet, 

in spite of her general conclusion that Garza was non-violent, Allen admitted 

that Garza displayed more risk factors than protective factors. Moreover, on 

cross-examination, Allen admitted that she did not take into account, for 

example, Garza’s truancy, use of a screwdriver in the prior burglary offense, 

automobile theft, drug abuse, juvenile fighting, and gang membership. Allen 

never actually met with Garza.

5 This comports with Callahan’s testimony. Callahan testified at the first habeas 

proceeding that he had asked Ferrell to prepare a mental health evaluation. Callahan 

further testified that he had decided not to call Ferrell at the punishment phase because 

Ferrell had indicated to him that he would testify that Garza was a “future danger.”

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The state habeas court concluded that the decision to not call an expert

at trial was a reasonable tactical decision because the damaging nature of the 

testimony far outweighed any benefit that might have inured to Garza. The 

court observed that the testimony actually supported a finding that Garza 

would engage in future violent acts. Moreover, the court pointed out that the 

experts at the habeas hearing ignored certain evidence, such as the prior 

weapons offenses, and––in the court’s view––unjustifiably discounted certain 

evidence, such as past drug use and gang membership. This, in addition to the 

experts’ admitted limited reviews of documents and interactions with Garza, 

undermined the credibility of the testimony, according to the state habeas

court. The court accepted trial counsel’s judgment that the three witnesses 

who did testify at the punishment phase were best positioned to explain 

Garza’s background and invoke sympathy for and humanize Garza. Such a 

judgment was not, in the court’s view, anything but reasonable. The state 

habeas court also concluded that, in light of its criticisms, the “net effect” of 

this testimony would not have changed the outcome of the case.

The question in assessing an ineffectiveness claim that relies on a failure 

to develop mitigating evidence is whether “the investigation supporting 

counsel’s decision not to introduce mitigating evidence of [petitioner’s]

background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523 (2003). 

The Supreme Court has further explained:

[S]trategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable; 

and strategic choices made after less than complete investigation 

are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation. In other 

words, counsel has a duty to make reasonable investigations or to 

make a reasonable decision that makes particular investigations 

unnecessary. In any ineffectiveness case, a particular decision not 

to investigate must be directly assessed for reasonableness in all 

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the circumstances, applying a heavy measure of deference to 

counsel’s judgments. 

Id. (internal quotation marks omitted). Defense counsel is not required to 

“pursue an investigation that would be fruitless, much less one that might be 

harmful to the defense.” Richter, 131 S. Ct. at 789–90. Moreover, counsel is 

“entitled to formulate a strategy that was reasonable at the time and to balance 

limited resources in accord with effective trial tactics and strategies.” Id. at 

789. On habeas review, we consider the state court’s application of these legal 

principles under the deferential AEDPA standard. See § 2254(d); see also 

Slack, 529 U.S. at 484.

We conclude that Garza has not met his burden to show that the state 

habeas court’s conclusion on this claim amounted to an unreasonable 

application of Strickland or an unreasonable determination of the evidence. 

See § 2254(d)(1)–(2). As an initial matter, the state habeas court deemed the 

testimony of Gonzales to be cumulative, a not unreasonable assessment in light 

of the facts in the record. See § 2254(d)(2). Trial counsel elicited the same sort

of information––the abuse, neglect, and criminal atmosphere that permeated 

Garza’s youth––from the three witnesses at the punishment phase of the trial, 

and Garza does not explain how Gonzales’s testimony would have benefited his 

case. Furthermore, the state habeas court’s conclusion that trial counsel was

justified in not calling Ferrell, given Ferrell’s apparent concerns over the

future dangerousness issue, was not unreasonable. In any event, Garza does 

not contend that trial counsel’s investigation with respect to Ferrell was 

deficient; instead Garza challenges trial counsel’s failure to call Ferrell. Such 

a “strategic choice” is “virtually unchallengeable.” See Wiggins, 539 U.S. at 

521.

Trial counsel’s failure to investigate and develop the type of evidence 

presented by Allen also does not warrant a COA. The record reflects that trial 

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No. 12-70036

counsel did consult with a mental health specialist (Ferrell) and did consult

with Garza’s family members, who described Garza’s troubled background and 

childhood at the punishment phase. Indeed, Callahan testified that he had 

spoken with five members of Garza’s family prior to the punishment phase of 

the trial and that the three witnesses at the punishment phase testified to 

everything he had heard from those family members. In addition, Camara

testified that the defense’s mitigation specialist, Ann Mathews, had 

interviewed the three witnesses who testified at the punishment phase and 

had related to trial counsel the information gathered in those interviews. Trial 

counsel’s investigation was focused on Garza’s youth and family history, and 

the strategy that trial counsel employed was designed to illuminate Garza’s 

troubled background and evoke sympathy. Moreover, the state habeas court

expressed serious doubts concerning the credibility of Allen’s testimony, which

undermined Garza’s Strickland claim in the court’s view. For purposes of 

habeas review, we thus defer to the state habeas court’s determination that 

trial counsel’s investigation was the product of “reasonable professional 

judgments,” especially in light of the “heavy measure of deference” owed to trial 

counsel’s judgments, see Wiggins, 539 U.S. at 521–22, despite the decision to 

not further inquire with or call an expert. Thus, we cannot say that the state 

habeas court’s assessment of trial counsel’s decisions regarding mitigating 

evidence was the result of an unreasonable application of Strickland or an 

unreasonable determination of the facts. See § 2254(d)(1)–(2). Accordingly,

the district court’s denial of this claim is not a debatable disposition.6 See 

Slack, 529 U.S. at 484.

6 We note that Garza points out in his brief that lead counsel was appointed only 

months prior to the trial. Garza’s position on the mitigating-evidence claim, however, is 

centered not on how much time trial counsel spent on these matters, but on what trial counsel 

did or did not do. In any event, we conclude that Garza has not met his burden under § 2254, 

given the investigation in which trial counsel engaged. 

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As noted above, Garza’s ineffective-assistance-of-counsel claim in his 

second state habeas application contained a new argument based on fetal 

alcohol syndrome. The district court reviewed this claim de novo because the 

state failed to request dismissal on procedural grounds. The state now argues 

that the claim is barred by procedural default. Even assuming arguendo that 

the claim is not barred, however, we conclude that the district court was correct 

in dismissing the claims as meritless upon de novo review. See Fisher v. Texas, 

169 F.3d 295, 301–02 (5th Cir. 1999) (declining to exercise the court’s discretion 

to apply a procedural bar in a habeas case in which the state failed to raise the 

defense before the district court).

Garza contends that trial counsel was ineffective in not investigating and 

introducing evidence of his possible fetal alcohol syndrome. But, as the district 

court observed, Garza fails to provide evidence that the underlying facts 

concerning such a syndrome were made known to trial counsel. Trial counsel

had no leads to that effect. None of the family members mentioned the 

mother’s alcohol or drug abuse to trial counsel; in fact, the witnesses spoke 

favorably of her at the punishment phase. Furthermore, such evidence was 

neither located in the TYC file, which contained three separate psychological 

evaluations of Garza, nor provided by Ferrell at any time. Given trial counsel’s 

investigation, and the lack of any evidence regarding the mother’s substance 

use, it was entirely reasonable to not investigate the possible effects of fetal 

alcohol syndrome. Accordingly, Garza cannot overcome the “strong 

presumption” that trial counsel’s representation on this front fell within the 

“wide range of reasonable professional assistance.” See Strickland, 466 U.S. 

at 689. 

Garza’s request for a COA is DENIED.

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