UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 99-41216

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ALBERTO VALDEZ,

Petitioner - Appellee,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justi c e,

Institutional Division,

Respondent-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

April 2, 2002

ON PETITION FOR PANEL REHEARING

(Opinion 12/3/01, 5th Cir., 2001, 274 F.3d 941)

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The petition for panel rehearing is DENIED. In denying rehearing, the panel believes that the

opinion properly holds that the district court abused its discret io n when it excluded four exhibits

relevant to the issue of whether Valdez’s counsel were ineffective for not investigating and presenting

evidence at sentencing of his alleged mental retardation. As the opinion states, the exhibits are

relevant because they existed at the time of the 1988 trial and undercut Valdez’s assertion that he is-2-

mentally retarded. Moreover, to the extent that the district court excluded the exhibits as a sanction

for alleged discovery violations in prior state court proceedings, the panel still believes that the district

court abused its discretion. Although, as the dissent notes, there are many cases supporting a district

court’s dis cret io n t o fashion appropriate sanctions for failing to comply with the Federal Rules of

Civil Procedure and pretrial orders, those facts are not present here. Valdez is not objecting to the

Director’s failure to comply with an order issued by the district court in his federal habeas proceeding.

Rather, Valdez is objecting on the ground that the State failed to comply with discovery requests in

earlier proceedings in state court. Finally, the panel notes that Valdez has not shown that the State’s

failure to produce these exhibits sooner prejudiced him. The exhibits at issue indicate that Valdez was

not mentally retarded. Consequently, the State’s failure to introduce them at Valdez’s earlier capital

murder trial and state habeas hearing actually worked to Valdez’s advantage.-3-

JAMES L. DENNIS, Circuit Judge, dissenting from the denial of panel rehearing:

In his petition for panel rehearing, Alberto Valdez requests that the panel opinion be amended

to affirm the district court’s exclusion of four exhibits from his federal evidentiary hearing. The panel

opinion correctly states that we review evidentiary rulings for abuse of d iscretion and that an

erroneous evidentiary ruling will be reversed only where a substantial right of a party is affected. S ee

Valdez v. Cockrell

, 274 F.3d 941, 957 (5th Cir. 2001). But, for the reasons that follow, I do not see

how the district court’s exclusion of the four exhibits at issue constitutes an abuse of discretion.

First, the exclusion of evidence is a recognized sanction or remedy for discovery violations.

See 4 WAYNE R. L A F AVE ET AL

., C RIMINAL P ROCEDURE § 20.6(a) (2d ed. 1999). The 1990

subpoena issued during the state habeas proceeding obligated the Director to produce the four

e xhibits. Because the Director did not comply until the first day of the federal evident iary

hearing—several years later—I find it impossible to conclude that th e distri ct court abused i ts

discretion in excluding the exhibits. Indeed, a district court may abuse its discretion by a dmitting

testimony or documents that a proponent fai ls t o t imely identify or produce when under a legal

obligation to do so. S ee, e.g., Campbell v. Keystone Aerial Surv eys, Inc., 1 38 F.3d 996 (5th Cir.

1998). Moreover, had the State produced the exhibits prior to Valdez’s murder trial in response to

his trial counsel’s discovery request, the issue of mental retardati on may have been investigated and

presented to the jury during the penalty phase of the trial. Thus, quest ions of relevancy

notwithstanding, the district court could concl ude, without abusing its discretion, that the State

waived t he o ppo rtunity to present the exhibits by failing to produce them in a timely manner. By

overturning the district court’s decision regarding the exhibits, the panel opinion rewards the State-4-

for failing to do what it should have done over a decade ago.

Second, I also find that the district court’s exclusion of the exhibits as irrelevant was within

its sound discretion. Although the panel opinion relies on the e xistence of these documents prior to

Valdez’s trial and habeas hearing, Strickland asks whether there is a reasonable probability that, but

for counsel’s failure to investigate Valdez’s possible retardation, the result of the 1988 trial would

have been diffe rent. See Strickland v. Washington , 466 U.S. 668, 694–96 (1984). Evidence for

which the Director cannot establish availabilit y at that time is not relevant to the Strickland inquiry.

Because the Director failed to demonstrate the relevancy of the exhibits, the distri ct court di d not

abuse its discretion in excluding them. S ee United States v. McClatchy

, 249 F.3d 348, 358 (5th Cir.

2001). Because the district court did not err, inquiry into the substantial rights of the Director is

unnecessary.

The panel majority’s review of the district court’s ruling on the exhibits seems far closer to

de novo than it does to abuse of discretion, which may unfortunately reflect my colleagues’ opinion

as to the ultimate merits of this case. The district court did not abuse its discretion; accordingly, I

dissent from the denial of panel rehearing.