IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-70009

GUADALUPE ESPARZA

Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:07-CV-265

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Petitioner Guadalupe Esparza (“Esparza”), convicted of capital murder in

Texas and sentenced to death, requests this Court to issue a Certificate of

Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Esparza contends that

the evidence demonstrated that he is mentally retarded, rendering him ineligible

for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Relying on

the Sixth Amendment, Esparza asserts that he is entitled to a jury finding with

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-70009

respect to the issue of mental retardation. He also contends that his counsel

rendered ineffective assistance by failing to investigate his mental retardation

and present evidence of his mental retardation at sentencing. Finding that

Esparza has not made a substantial showing of the denial of a constitutional

right, we DENY a COA.

I. PROCEDURAL HISTORY

A Bexar County, Texas grand jury returned an indictment charging

Esparza with the capital murder of 7-year old Alyssa Vasquez while in the

course of committing aggravated sexual assault, kidnapping, and burglary. TEX.

PENAL CODE § 19.03(a)(2). A jury convicted Esparza as charged, and the

sentence imposed was the death penalty. The Texas Court of Criminal Appeals

affirmed Esparza’s conviction in an unpublished opinion. Esparza v. State, No.

74,096 (Tex. Crim. App. June 4, 2003), cert. denied, 540 U.S. 1006 (2003).

Represented by counsel, Esparza applied for state habeas relief, and the trial

court recommended denying relief. Additionally, Esparza filed a separate

application for writ of habeas corpus pro se. With respect to the first application,

the Court of Criminal Appeals adopted the findings and conclusions of the trial

court and denied the application. Ex parte Esparza, Nos. WR-66111-01, WR66111-02 (Tex. Crim. App. Feb. 28, 2007). The Court of Criminal Appeals also

dismissed the pro se application as an abuse of the writ. Esparza then filed a

federal petition for writ of habeas corpus, which the district court denied in a

memorandum opinion and order. Esparza v. Quarterman, No. 07-265 (W.D. Tex.

Mar. 24, 2010). The district court also denied a COA. Esparza now requests a

COA from this Court.

II. STANDARD OF REVIEW

Esparza filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after

the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S.

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320, 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA,

we defer to a state court’s adjudication of a petitioner’s claims on the merits

unless the state court’s decision was: (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States”; or (2) “resulted in a decision that 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). A state court’s

decision is deemed contrary to clearly established federal law if it reaches a legal

conclusion in direct conflict with a prior decision of the Supreme Court or if it

reaches a different conclusion than the Supreme Court based on materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A

state court’s decision constitutes an unreasonable application of clearly

established federal law if it is “objectively unreasonable.” Id. at 409. Further,

pursuant to § 2254(e)(1), state court findings of fact are presumed to be correct,

and the petitioner has the burden of rebutting the presumption of correctness

by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th

Cir. 2001).

Additionally, under AEDPA, a petitioner must obtain a COA before he can

appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see

also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (“[U]ntil a COA has been

issued federal courts of appeals lack jurisdiction to rule on the merits of appeals

from habeas petitioners.”). As the Supreme Court has explained:

The COA determination under § 2253(c) requires an overview

of the claims in the habeas petition and a general assessment of

their merits. We look to the District Court’s application of AEDPA

to petitioner’s constitutional claims and ask whether that resolution

was debatable among jurists of reason. 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.

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Miller-El, 537 U.S. at 336.

A COA will be granted only if the petitioner makes “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists

could conclude the issues presented are adequate to deserve encouragement to

proceed further.” Miller-El, 537 U.S. at 327 (citation omitted). “The question is

the debatability of the underlying constitutional claim, not the resolution of that

debate.” Id. at 342. “Indeed, 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.” Id. at 338. Moreover,

“[b]ecause the present case involves the death penalty, any doubts as to whether

a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v.

Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).

III. ANALYSIS

A. ATKINS CLAIM

In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held

that the Eighth Amendment prohibited the execution of mentally retarded

persons. Esparza contends that he is mentally retarded, and thus is ineligible

for the death penalty. Subsequent to Atkins, Texas courts have followed the

definition of “mental retardation” adopted by the American Association on

Mental Retardation and the nearly identical definition set forth in § 591.003(13)

of the Texas Health & Safety Code. In re Salazar, 443 F.3d 430, 432 (5th Cir.

2006). Pursuant to this test, a petitioner claiming mental retardation must

demonstrate that “he suffers from a disability characterized by ‘(1) significantly

subaverage general intellectual functioning,’ usually defined as an I.Q. of about

70 or below; ‘(2) accompanied by related limitations in adaptive functioning; (3)

the onset of which occurs prior to the age of 18.’” Id. (quoting Ex parte Briseno,

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135 S.W.3d 1, 7 (Tex. Crim. App. 2004)) (internal quotation marks omitted).

Esparza bore the burden of proving by a preponderance of the evidence that he

is mentally retarded. Briseno, 135 S.W.3d at 12. A determination of whether

a person is mentally retarded is a factual finding. Moore v. Quarterman, 533

F.3d 338, 342 (5th Cir. 2008) (en banc); Clark v. Quarterman, 457 F.3d 441, 444

(5th Cir. 2006).

Esparza raised his claim of mental retardation during his state habeas

proceedings, and the state court held an evidentiary hearing. During this

hearing, several expert witnesses testified regarding Esparza’s I.Q. scores and

adaptive functioning. Also, his sister testified about his childhood, and

Esparza’s prison and school records were admitted.

1. Lynda Tussay

Esparza called Lynda Tussay to testify. Tussay is a licensed professional

counselor and has a master’s degree in Human Development and Counseling. 

Tussay interviewed Esparza and administered intelligence tests. She testified

that the range of mental retardation was a 70 I.Q. or lower. Esparza scored a

71 (standard error of plus or minus 5 points) on the Raven’s Standard

Progressive Matrices Test. With respect to the Revised Minnesota Paper

Formboard Test, Esparza scored a 73 (standard error of plus or minus 4 points).

Tussay explained that the above two scores were within the range of borderline

intellectual functioning. On the achievement tests, Esparza was at the level of

first grade math and below the level of first grade on this spelling test. On

another spelling test, he scored at the level of grade 6.3. Esparza’s vocabulary

was at a grade level of 6.2, and his reading comprehension was at a 4.7 grade

level. Tussay also administered the Comprehensive Trail-Making Test, and

Esparza scored better than 58 percent of the population. On that test, a score

of under 40 percent would indicate mental retardation. With respect to the

Controlled Oral Word Association Test, Esparza scored 25.82, which is nearly

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four full standard deviations below the mean, which is 48.43. Tussay testified

that the score indicates “a person who does not do well with any kind of form of

written language.”

The Vineland Adaptive Behavior Scale Test is a questionnaire for the

caregiver of the person being tested regarding the subject’s developmental

history. Tussay explained that this test is the “essential measure, the one that

most psychologists use when using the adaptive behavior scales.” She

administered the test to Esparza’s older sister, Esther Moncado, who was

Esparza’s primary caregiver when he was a child. The mean score is 100, and

Esparza’s score was below 20, which is the “lowest score” possible.

Tussay further testified that she “can usually tell when someone is trying

to not do a good job. That wasn’t what he was trying to do.” In her opinion,

“there was no deliberate sabotage on his part. He just did not understand. He

just didn’t understand what I was trying to tell him.” In Tussay’s opinion,

Esparza “meets all of the criteria for mental retardation.”

During the cross examination of Tussay, the prosecutor produced two of

Esparza’s penitentiary packets, which included the Texas Department of

Corrections Social and Criminal History page. The first packet provided that in

1985 Esparza had an I.Q. score of 86. The second packet provided that in 1993

Esparza had an I.Q. score of 88. After reviewing the packets, Tussay testified

that she could not “formulate an opinion based on” them because she did “not

know what they based their tests on.” The packets did not provide what specific

tests were administered to Esparza. She also admitted that Esparza heard from

his lawyer that if he was mentally retarded, then the Supreme Court’s decision

in Atkins would bar his execution.

Additionally, Tussay testified that during her interview of Esparza she

noticed that Esparza was “able to speak very well.” She discovered that his

family had done migrant farm work and thus “he was not really ever very rooted

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in any one school.” Esparza had been in special education classes and failed the

ninth grade three times before dropping out of high school. Tussay also stated

that Esparza told her that he failed the test for a GED but that the instructor

issued a GED so that the instructor would be compensated.

Tussay also spoke with Esparza’s older sister who indicated that Esparza

had a “history of adaptive problems.” His sister had “difficulty in teaching him

how to tie his shoes, how to dress himself. It took longer and he was older before

he was able to attain those skills.” Esparza did not “play like the other

children.” For example, he did not develop “imaginary games.”

2. Recording of Jail Phone Calls

Esparza was moved from death row to Bexar County Jail during the time

of the state writ evidentiary hearing. Sergeant Mark Gibson of the Bexar

County Sheriff’s office submitted a recording of three phone calls made by

Esparza during his stay at county jail. The recording was played at the writ

hearing. Esparza identified himself at the beginning of each phone call. He

helped arrange a three-way conference call. He spoke to his attorney about the

impending court proceedings. He referred to the Supreme Court’s opinion in

Atkins as the “2002 case.” Esparza boasted that his attorney was very good and

had gotten other inmates off death row. Esparza recounted to another person

what his attorney had told him about the need to postpone the hearing. In one

phone call, Esparza was advising another inmate’s family regarding that

inmate’s civil suit against jail officials. Esparza also informed one person that

he could only have visitors on Mondays and Wednesdays. He complained that

the phone cards were unfairly charging too much money for the minutes

provided.

3. Dr. Kern

The State called Dr. Paul Kern, Ph.D., a psychologist at the University

Health System, Detention Health Care Services. Dr. Kern testified that Joanna

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W. Guerrero, a psychometrist with a master’s degree, administered two different

intelligence tests and an achievement test to Esparza. Esparza scored in the

mildly mentally retarded range on the intelligence tests, and his achievement

test score suggested very poor basic academic skills. Dr. Kern interviewed

Esparza and interpreted the test scores.

Together Dr. Kern and Guerrero compiled a Summary of Intellectual

Testing that was submitted to the state court. This report provided that, based

on Guerrero’s clinical impression, she estimated Esparza’s intelligence was

within the low average range. The report provided that Esparza “displayed an

1

extremely low level of motivation while responding to knowledge-based

questions, providing a large number of ‘I don’t know’ responses and displaying

a strong hesitance to venture guesses.” His responses to knowledge-based

questions “were almost always incorrect.” Esparza responded that the current

President of the United States was “Ford.” He reported that the United States

flag colors are red, white, and green. Based on his responses, it was “strongly

suspected that he was intentionally performing below the level of his

capabilities.” For example, “it was subsequently learned that although he

provided a blatantly incorrect definition of a thermometer during the mental

status examination, he had previously provided a correct definition for the same

term during the psychological testing.” Esparza performed very poorly on a

simple memory task. The examiner noted that “it is rare . . . to see performance

as poor as Mr. Esparza’s on the task even among young children with low

intelligence and relatively severe Attention/Deficit Hyperactivity Disorder.”

Also, during the time Esparza was not being asked knowledge-based questions,

his presentation “was suggestive of a much higher level of functioning, and a

clinical estimate of his intelligence based on both his general presentation and

 Guerrero did not testify at the hearing. 1

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the available historical information would place it somewhere within the Low

Average range.”

Dr. Kern testified that Esparza was able to read and understand his

rights. Indeed, during one meeting, Esparza stopped the interview and asked

for counsel in order to obtain advice regarding whether to cooperate. Esparza

retrieved his attorney’s business card from his cell and successfully contacted his

attorney. After consulting with counsel, Esparza decided to complete the

interview. Dr. Kern testified that Esparza’s presentation during the interview

did not appear to be that of a mentally retarded person. Dr. Kern concluded that

Esparza’s motivation to do well on the I.Q. tests “was very low” and that the test

results were invalid or inaccurate. Esparza’s test score on the Vineland adaptive

behavior scale, which had been previously administered by Tussay, indicated

that he was profoundly retarded. Dr. Kern explained that a person of that level

of intelligence or adaptive behavior “would be capable of doing almost nothing.

A profoundly mentally retarded person, for example, would have no hope at all

of ever learning language at all. They would have no hope at all of . . . ever

having a job, probably. They would not be able to communicate at all.” Such a

person “would probably spend their whole life in an institution for the mentally

retarded sitting in a corner oblivious to anything.” Dr. Kern explained that a

person can test below their intelligence level but not above it. He further

testified that I.Q. scores generally do not change over a person’s life. Dr. Kern

opined that Esparza’s scores of 88 and 86 in the penitentiary packets were

consistent with his clinical assessments regarding Esparza’s functioning.

Further, Esparza’s taped phone conversations suggest a higher level of

functioning than the current test scores indicate. In Dr. Kern’s opinion, the

current test results provide “dramatic underestimates of Mr. Esparza’s

knowledge and ability and are best viewed as invalid.”

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Dr. Kern also noted that during Esparza’s 2001 trial Dr. Arambula, a

forensic psychiatrist, had testified that he did not have Esparza tested for

mental retardation because he thought Esparza’s intelligence was “normal.” Dr.

2

Kern is familiar with Dr. Arambula and relied in part upon his opinion in

assessing Esparza. Finally, Dr. Kern testified that, based on the test results and

his clinical assessments, he did not think that Esparza was mentally retarded.

Instead, as set forth in his report, Esparza’s “intellectual capabilities most likely

fall somewhere within the Low Average range.”

4. Dr. Sparks

The State also called Dr. John Sparks, a psychiatrist and medical director

of the Bexar County Detention Center. Previously, in his capacity as the medical

director, Dr. Sparks had seen Esparza because of a treatment issue. Dr. Sparks

testified that Esparza “conveyed to me what he needed in a very clear and

concise way.”

At the request of the state court, Dr. Sparks interviewed Esparza and also

reviewed the report issued by Dr. Kern. Dr. Sparks’ evaluation of Esparza

provides that he “is aware that it may lead to the death sentence if he is not

retarded or may lead to life in prison if he is retarded.” Dr. Sparks concluded

that Esparza was not mentally retarded. Although Dr. Sparks acknowledged

that the current test scores were in the mildly mentally retarded range, his

evaluation provided as follows:

[E]vidence from multiple sources suggest that the present test

results provide marked underestimates of his intellectual

capabilities. He displayed “pervasive evidence of poor test taking

attitude characterized by low motivation, poor attention and

concentration, and low task involvement and persistence.”[ ] He

3

Dr. Arambula’s testimony will be more fully discussed infra in the context of 2

Esparza’s claim of ineffective assistance.

 Dr. Sparks’ evaluation was quoting from Dr. Kern’s report.

3

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made minimal effort in the testing although his abilities to

communicate and his ability to handle general living situations

seem well above the mentally retarded range. He had long term

gainful employment and knew how to drive and passed the drivers

test.

Dr. Sparks’ evaluation also found that Esparza’s functioning “was well

above the retardation level.” Dr. Sparks found that Esparza communicated very

well. Although Esparza does not write well, he “understands language better

than a retarded person can.” Esparza did not receive a good education and thus

“has difficulty in writing communications.” However, his “adaptive ablity is

excellent.” Dr. Sparks found that the I.Q. scores of 86 and 88 contained in the

prison records were consistent with his opinion that Esparza is not mentally

retarded. Although Dr. Sparks initially estimated that Esparza had borderline

intellectual functioning, after hearing Esparza’s taped phone conversations, he

estimated that Esparza’s I.Q. would be “77 or 78, closer to 80, which would be

then low average.”

5. Esther Moncada

Esparza’s older sister, Esther Moncada, testified at the hearing that

Esparza was a “slow learner” and had trouble tying his shoe laces. Their mother

was hospitalized after a mental breakdown when Esparza was about five or six

years old. Their father moved out of state, and the children were placed in an

orphanage until an uncle brought them back to San Antonio. Their father died

when Esparza was ten or eleven years old. Moncada further testified that

Esparza ate with his hands and had difficulty dressing himself. He dropped out

of school after failing ninth grade three times and worked as a laborer. Esparza

could read and write “a little.”

6. State Court Finding of No Mental Retardation

The state trial court denied relief on this claim, concluding that Esparza

had failed to establish that he is mentally retarded. The Court of Criminal

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Appeals expressly adopted this finding. Esparza challenges the state court’s

finding, contending that there was sufficient evidence to find that he was

mentally retarded.

As previously set forth, Esparza has the burden of proving by a

preponderance of the evidence that he is mentally retarded. Salazar, 443 F.3d

at 432. The first prong of the test is whether he has significant subaverage

intellectual function, usually defined as an I.Q. score of 70 or below. Briseno,

135 S.W.3d at 7.

We first note that Judge Mary Roman of the 175th Judicial District Court

of Bexar County presided over both Esparza’s trial and the state evidentiary

hearing. As such, Judge Roman was able to observe Esparza testify in his own

defense during his capital trial. During trial Esparza was asked to read a

request that he had handwritten at the jail. From the witness stand, Esparza

read aloud as follows: “I would like to ask you if I can be in segregation by

myself because I no longer trust nobody because there is a lot of people that don’t

like me because of a charge that I have, Capital case. I would like to be housed

by myself for my own safety.” Moreover, we agree with the federal district court

that “[t]hroughout his trial testimony, [Esparza] furnished coherent, even

combative testimony fully responsive to both his own trial counsel’s and the

prosecutor’s questions and demonstrated a detailed understanding of the

testimony and other evidence introduced during his capital murder trial.”

Additionally, Esparza’s penitentiary packets provided that he had an I.Q.

of 86 in 1985 and an I.Q. of 88 in 1993. The experts’ testimony provided that

these scores are well above what a mentally retarded person would score. Dr.

Kern testified that a person’s intelligence score generally is stable and does not

change over a lifetime. There was expert testimony that although a person can

score below their actual level of intelligence, a person cannot score above their

actual level of intelligence.

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In stark contrast to his previous I.Q. scores in the low average range in his

penitentiary packets, Esparza scores fell within the range of mental retardation

when he knew that he was being tested to determine whether he was eligible for

the death penalty. Indeed, one test score placed him in the range of profoundly

retarded. Dr. Sparks, Dr. Kern, and Guerrero, who administered the tests for

Dr. Kern, believed that Esparza had low motivation to actually perform on the

4

tests and believed the test results were invalid. Dr. Sparks testified that

Esparza understood that if he was deemed mentally retarded then he could not

be executed.

On the other hand, Esparza’s expert, Tussay, discounted the higher

previous I.Q. scores of 86 and 88 because the packets did not provide what test

was used. Tussay concluded that Esparza was mentally retarded. Tellingly,

Tussay admitted that this case was the first time she had evaluated an

incarcerated individual for mental retardation. Both Dr. Kern and Dr. Sparks,

however, had years of experience interacting with incarcerated individuals.

Indeed, Dr. Kern was a psychologist at the University Health System, Detention

Health Care Services, and Dr. Sparks was the medical director of the Bexar

County Detention Center. Finally, Dr. Arambula, Esparza’s expert, testified

during the punishment phase of the capital murder trial and opined that

Esparza was of normal intelligence and thus he had not had Esparza tested for

mental retardation. Under these circumstances, Esparza has not shown that the

finding of no subaverage intellectual functioning is debatable among reasonable

jurists. Because Esparza has failed to make a substantial showing on the first

prong of the test, there is no need to address the remaining two prongs. See

Salazar, 443 F.3d at 432 (“To state a successful claim, an applicant must satisfy

Guerrero’s clinical impression of Esparza was that his intelligence was in the low 4

average range. 

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all three pongs of this test.” (citation omitted)). Accordingly, we DENY a COA

with respect to his Atkins claim.

B. JURY FINDING ON MENTAL RETARDATION

Citing Ring v. Arizona, Esparaza also contends that he is entitled to obtain

a jury finding on the issue of whether he is mentally retarded. 536 U.S. 584

(2002). In Ring, the Supreme Court held that because a death sentence was

authorized only if an aggravating factor was present, the Sixth Amendment

required that the aggravating factor must be proved to a jury. Id. at 603–09.

This Court has rejected the instant claim, explaining that neither Ring nor

Atkins “render the absence of mental retardation the functional equivalent of an

element of capital murder which the state must prove beyond a reasonable

doubt.” In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003); see also Woods v.

Quarterman, 493 F.3d 580, 585 n.3 (5th Cir. 2007).

Moreover, contrary to Esparza’s argument, the holding in Ring cannot be

applied retroactively on collateral review. As a general matter, the Supreme

Court has explained that “Ring announced a new procedural rule that does not

apply retroactively to cases already final on direct review.” Schriro v.

Summerlin, 542 U.S. 348, 358 (2004). Although Esparza recognizes that

holding, he nonetheless contends that the decision should be revisited. We, of

course, are bound by the Supreme Court’s decision. United States v. Jones, 132

F.3d 232, 242 (5th Cir. 1998). Further, this Court has rejected his precise

contention in the context of a claim of mental retardation, explaining that this

“claim does not meet the requirements of § 2244(b) because the claim that a jury

must determine mental retardation does not rely upon a new rule of

constitutional law made retroactive by the Supreme Court.” In re Woods, 155 F.

App’x 132, 134 (5th Cir. 2005). Accordingly, we are constrained to find that this

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claim is not debatable among reasonable jurists. We DENY his motion for a

COA as to this claim.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Esparza argues that his Sixth Amendment right to effective assistance of

counsel was violated during the sentencing phase of his trial. He contends that

his trial counsel failed to adequately investigate and present mitigating evidence

with respect to his mental retardation.

To establish ineffective assistance of counsel, Esparza must show (1)

defense counsel’s performance was deficient and (2) this deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We

must find that trial counsel “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. The

Supreme Court instructs courts to look at the “norms of practice as reflected in

the American Bar Association and the like” and to consider “all the

circumstances” of a case. Id. at 688. While “[j]udicial scrutiny of counsel’s

performance must be highly deferential,” Esparza can demonstrate deficient

performance if he shows “that counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. However, “[t]here is a ‘strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” United States v. Webster, 392 F.3d 787, 793 (5th Cir.

2004) (quoting Strickland, 466 U.S. at 689). Strickland’s “prejudice” prong

requires a reasonable probability that, but for the deficient performance of his

trial counsel, the outcome of his capital murder trial would have been different.

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id.

1. Performance Prong

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As previously set forth, Esparza contends that trial counsel rendered

ineffective assistance by failing to investigate and present mitigating evidence

of his mental retardation during the sentencing phase of his trial. In

determining whether trial counsel’s performance was deficient, our “focus [is] on

whether the investigation supporting counsel’s decision not to introduce

[additional] mitigating evidence of [a petitioner’s] background was itself

reasonable.” Wiggins v. Smith, 539 U.S. 510, 522–23 (2003). Thus, we must

consider the reasonableness of trial counsel’s investigation.

With respect to investigation, the record reveals that counsel requested the

appointment of a forensic psychologist, a private investigator, and a DNA expert.

Counsel also filed numerous discovery motions. Counsel interviewed at least

two members of Esparza’s family—the two sisters who testified at the

punishment phase of trial. Because Esparza has not submitted an affidavit from

trial counsel, the record does not contain the full extent of counsel’s

investigation. However, as previously stated, Esparza must demonstrate that

counsel’s performance was deficient, Strickland, 466 U. S. at 687, and there is

a strong presumption that counsel’s investigation was reasonable. Webster, 392

F.3d at 79.

Counsel obtained the appointment of Dr. Arambula, a forensic

psychiatrist. Dr. Arambula evaluated Esparza and testified during the

punishment phase that he could not identify a specific mental illness. Dr.

Arambula also testified that Esparza was more unstable than a “normal” person

because when he was six years old his mother was institutionalized for mental

illness. As a result, he was temporarily sent to an orphanage. Although unable

to diagnose an illness, Dr. Arambula suspected that Esparza had inherited a

“genetic load” from his mentally ill mother.

Dr. Arambula testified that after Esparza’s mother remarried and his

father died, Esparza’s stepfather would regularly beat him. It was Dr.

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Arambula’s opinion that the neglect and abuse Esparza suffered as a child did

not allow him to trust other people and made him prone to disagreement and

physical altercations. Dr. Arambula explained that a victim of domestic violence

can repeat the violent behaviors he has suffered.

Dr. Arambula noted that Esparza obtained a GED in prison. On cross

examination, the prosecutor asked whether he had administered any I.Q. tests

on Esparza. Dr. Arambula responded: “No. I didn’t believe that I needed to,

based on the evaluation.” The prosecutor then inquired: “Because he seems to

have normal intelligence?” Dr. Arambula responded: “Yes.” Accordingly,

defense counsel had a mental health expert evaluate Esparza, and the expert’s

conclusion was that Esparza was of “normal intelligence.” Moreover, as

previously discussed, the evidence Esparza relies on to demonstrate his mental

retardation is unpersuasive. Under these circumstances, Esparza has failed to

make a substantial showing that counsel’s performance with respect to

investigating the issue of mental retardation was deficient.

It is not clear from the briefing, but it also appears that Esparza is arguing

that counsel’s presentation of the mitigating evidence about his childhood is

deficient. Counsel was able to elicit testimony that Esparza’s mother was

institutionalized when he was six years old, and, as a result, he was sent

temporarily to an orphanage. Subsequently, Esparza and his siblings were sent

to live with their grandmother. His sisters testified that his mother was in the

hospital once or twice a year due to her mental illness. The testimony also

demonstrated that Esparza was beaten by his stepfather. Further, one sister

was asked “how much schooling” Esparza had, and she replied: “Not much. . . .

I know he stopped going to school because he had to help my mom to pay bills

and all.” Esparza then began working in a restaurant and in construction.

Additionally, counsel elicited testimony from Dr. Arambula that the highly

structured setting in prison would make Esparza less likely to be a future

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danger, which is mitigating evidence with respect to the first question given to

the jury after the punishment phase. Although Esparza claims counsel’s

5

questioning of the mitigation witnesses was “very superficial,” he has wholly

failed to explain what else counsel should have elicited from the mitigation

witnesses. As such, he has failed to demonstrate that reasonable jurists would

find debatable his claim that counsel’s performance with respect to investigating

and presenting the evidence in mitigation was deficient.

2. Prejudice Prong

Because Esparza made an insufficient showing on the first prong of the

test, it is unnecessary for this Court to address the second prong–whether

counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 689.

Nonetheless, we briefly state that it is clear that Esparza has failed to make a

sufficient showing of prejudice. In the context of a claim that counsel failed to

discover and present mitigating evidence, to determine whether a petitioner has

shown the required prejudice, “we reweigh the evidence in aggravation against

the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.

Here, the aggravating evidence included evidence that Esparza kidnapped

a 7-year old girl from her home in the middle of the night, raped and sodomized

her, and strangled her to death. Esparza had a previous conviction for

aggravated sexual assault, and the victim of that crime testified at the

punishment phase of this trial. She recounted how Esparza hit her in the head

The first question is: “Do you find from the evidence beyond a reasonable doubt that 5

there is a probability that the Defendant, Guadalupe Esparza, would commit criminal acts of

violence that would constitute a continuing threat to society?” The second question is:

State whether, taking into consideration all the evidence, including the

circumstances of the offense, the defendant’s character and background, and the

personal moral culpability of the Defendant, there is a sufficient mitigating

circumstance or are sufficient mitigating circumstances to warrant that a

sentence of life imprisonment rather than a death sentence be imposed.

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with his gun and raped her at gunpoint after asking her for a ride home in her

car. Another victim testified that Esparza choked her and attempted to rape

her. Shortly before the instant crime, Esparza put his hand underneath the

clothes of a little girl as she was sleeping. The evidence showed that as a

juvenile he attempted to rob another child of his mini-bike at knife point.

Esparza also was the “getaway” driver when two other individuals were stealing

parts from a vehicle. Finally, Esparza had received disciplinary reports in

prison, including an incident in which he was kicking another inmate in the side

while the inmate was lying on the ground.

With respect to his claimed evidence of mental retardation, as we

previously discussed, the evidence indicates that Esparza was not actually

mentally retarded. Thus, in light of the aggravating evidence presented to the

jury, we are unpersuaded that Esparza has made a substantial showing that

there is a reasonable probability that, had his additional mitigating evidence

been presented, the outcome of the sentencing hearing would have been

different. In other words, we are persuaded that reasonable jurists would not

find Esparza’s claim of ineffective assistance of counsel debatable. We therefore

DENY a COA as to his claim of ineffective assistance of counsel.

IV. CONCLUSION

For the above reasons, the motion for COA is DENIED.

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