UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 99-41216

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ALBERTO VALDEZ,

Petitioner - Appellee,

versus

JANIECOCKRELL, Director,TexasDepartment ofCriminalJustice,

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 panelrehearing is DENIED. In denying rehearing, the panel believes that the

opinion properly holds that the district court abused its discretion when it excluded four exhibits

relevant to the issue ofwhether Valdez’s counselwere 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
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mentally retarded. Moreover, to the extent that the district court excluded the exhibits as a sanction

for alleged discoveryviolationsin priorstate court proceedings, the panelstillbelievesthat the district

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

court’s discretion to 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’sfailure to complywith an order issued bythe district court in hisfederalhabeas proceeding.

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

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

failure to produce these exhibitssooner 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.
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JAMES L. DENNIS, Circuit Judge, dissenting from the denial of panel rehearing:

In his petition for panelrehearing, Alberto Valdez requeststhat the panel opinion be amended

to affirmthe district court’s exclusion of four exhibitsfromhisfederal evidentiary hearing. The panel

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

erroneous evidentiary ruling will be reversed only where a substantialright of a party is affected. See

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. LAFAVE ET AL., CRIMINAL PROCEDURE § 20.6(a) (2d ed. 1999). The 1990

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

exhibits. Because the Director did not comply until the first day of the federal evidentiary

hearing—several years later—I find it impossible to conclude that the district court abused its

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

testimony or documents that a proponent fails to timely identify or produce when under a legal

obligation to do so. See, e.g., Campbell v. Keystone Aerial Surveys, Inc., 138 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 retardation may have been investigated and

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

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

waived t he opportunity 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
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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 existence 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 different. See Strickland v. Washington, 466 U.S. 668, 694–96 (1984). Evidence for

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

Because the Director failed to demonstrate the relevancy of the exhibits, the district court did not

abuse its discretion in excluding them. See 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.