IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-70005

WALTER ALEXANDER SORTO, 

 Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent–Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-613

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

This is an appeal of the district court’s denial of habeas relief in the case 

of Walter Alexander Sorto, who was convicted of capital murder and sentenced 

to death in Texas in 2003. 

Sorto first argues the district court abused its discretion in denying 

requests for funding that would have enabled him to hire an expert to 

determine whether he has an intellectual disability. He asserts that these 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 1, 2016

Lyle W. Cayce

Clerk

 Case: 16-70005 Document: 00513780048 Page: 1 Date Filed: 12/01/2016
No. 16-70005

2

funds were necessary in order to develop his claim under Atkins v. Virginia, 

536 U.S. 304 (2002). A certificate of appealability (“COA”) is not required for 

Sorto to appeal the district court’s denial of funds. Woodward v. Epps, 580 F.3d 

318, 333 n.8 (5th Cir. 2009). In connection with this issue, Sorto may file a 

supplemental brief discussing whether 28 U.S.C. § 2254(b)(1)(B)(ii) applies in 

the present case. The supplemental brief may be filed with this Court no later 

than thirty days after the date of this order and should address only matters

that have not already been briefed. If Sorto files a supplemental brief, Appellee

may file a response no later than twenty days thereafter, also limited to 

matters that have not already been briefed.

In addition, Sorto requests COAs with respect to claims that (1) he was 

subjected to custodial interrogation prior to being warned of his rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and (2) his trial counsel 

provided ineffective assistance by failing to develop and present certain 

mitigation evidence. For the following reasons, we DENY COAs with respect 

to Sorto’s Miranda and ineffective assistance of counsel (“IAC”) claims. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 2002, the police found two deceased women in a vehicle in an 

industrial area of Houston, Texas. The police identified the women as Maria 

Rangel and Roxana Capulin, both of whom had been missing since leaving 

their jobs at a restaurant the previous night. Rangel had been shot twice in the 

head, and Capulin had died from a single gunshot wound. Both bore signs of 

sexual trauma. 

A. Police Interviews

At approximately 7:45 p.m. on August 20, 2002, Harris County Sheriff’s 

Deputy Miguel Gonzalez and Detective Alejandro Ortiz met Sorto and a 

confidential informant in a hotel room. Sorto told the officers that although he 

was not a participant in the offense, he had seen Edgardo Cubas and Eduardo 

 Case: 16-70005 Document: 00513780048 Page: 2 Date Filed: 12/01/2016
No. 16-70005

3

Navarro abduct Rangel and Capulin and had followed them to a remote 

location. Sorto claimed he left the scene of the crime when he heard gunshots.

Considering Sorto a witness to the crime, Detective Ortiz asked him to 

continue the interview at the Harris County Sheriff’s homicide office. The 

police and Sorto traveled to the police station in separate vehicles. During a 

videotaped interview that commenced at 9:52 p.m., Sorto initially repeated the 

story he had told the officers at the hotel. At 10:48 p.m., Detective Ortiz asked 

Sorto to provide a saliva sample to the police. Sorto was “kind of stunned” by 

the request and asked: “What is this exam? Is it pretty good, 100 percent or 

what?” According to Detective Ortiz, after providing the saliva sample, Sorto 

began to change his story. Sorto said that after Cubas had shot the two women, 

Cubas forced Sorto to return to the scene and have sexual intercourse with 

Rangel’s corpse.

Around 11:21 p.m., the police read Sorto his Miranda warnings in 

Spanish, although they still did not consider him to be in custody. During a 

series of interrogations that occurred over the next few hours, Sorto admitted 

to committing several crimes, many of which involved Cubas. At 1:10 a.m., 

after learning that Sorto had an outstanding arrest warrant, Detective Ortiz 

formally took Sorto into custody. In an interview beginning around 8:25 a.m. 

the following morning, Sorto gave the police a third version of the events—he 

admitted that he had participated in sexually assaulting Rangel but 

maintained he was not involved in the women’s murders. 

B. Trial

The State of Texas charged Sorto with capital murder for intentionally 

and knowingly killing Rangel and Capulin during the same criminal 

transaction. The State also notified Sorto that it intended to seek the death 

penalty. 

 Case: 16-70005 Document: 00513780048 Page: 3 Date Filed: 12/01/2016
No. 16-70005

4

Sorto’s trial counsel moved to suppress Sorto’s statements to police, 

arguing that he was in custody long before the police read him the Miranda

warnings. The defense also contended that, even after the Miranda warnings 

were read, Sorto did not understand the constitutional rights he had waived. 

After a lengthy hearing, the trial court refused to suppress Sorto’s statements 

to police. 

During the trial that followed, the jury instructions provided that Sorto 

could be convicted if: (1) he actually shot the victims; (2) he was a party to the 

offense; or (3) he conspired to kill the victims. The State supported its 

argument that Sorto was a party to or conspirator in the murders by pointing 

to an earlier crime, in which fifteen-year-old Esmeralda Alvarado had been 

raped and murdered. DNA evidence linked Sorto and Cubas to Alvarado’s rape, 

and Sorto had confessed to involvement in the rape, though he maintained that 

Cubas was the shooter. The State argued that Sorto knew Cubas would kill 

Rangel and Capulin after the sexual assaults because Cubas had previously 

killed Alvarado. The jury found Sorto guilty of capital murder. 

After a Texas jury has convicted a capital defendant, the appropriate 

sentence is determined pursuant to state law through answers to special issue 

questions that are presented to the jury. In this case, the trial court instructed 

the jury to decide whether (1) Sorto would be a future danger to society, 

(2) Sorto caused the two killings or anticipated that a human life would be 

taken, and (3) sufficient circumstances mitigated against the imposition of a 

death sentence. Both parties presented extensive evidence during the 

sentencing phase. Ultimately, the jury answered the special issues in a manner 

that required imposition of a death sentence. 

C. Direct Appeal and Habeas Proceedings

Sorto raised sixteen claims on automatic direct appeal. The Texas Court 

of Criminal Appeals (“TCCA”) affirmed Sorto’s conviction and sentence. Sorto 

 Case: 16-70005 Document: 00513780048 Page: 4 Date Filed: 12/01/2016
No. 16-70005

5

v. Texas, 173 S.W.3d 469, 471 (Tex. Crim. App. 2005). In 2005, during the 

pendency of his direct appeal, Sorto also filed a state habeas application 

pursuant to Article 11.071 of the Texas Code of Criminal Procedure, raising 

fifteen claims, including an IAC claim under Wiggins v. Smith, 539 U.S. 510 

(2003). The TCCA dismissed the 2005 state habeas application, adopting the 

trial judge’s findings and conclusions and denying habeas relief. Ex parte Sorto, 

No. WR-71,381-01, 2009 WL 483147, at *1 (Tex. Crim. App. Feb. 25, 2009) (per 

curiam). 

Sorto then brought the present case seeking a writ of habeas corpus in 

federal district court. On July 12, 2010, the district court issued an order 

staying the case and directing Sorto to present an unexhausted Atkins claim 

in state court. 

Accordingly, Sorto filed a state habeas application with the TCCA on 

November 8, 2010, arguing that he should be granted relief under Atkins. Sorto 

also asserted an expanded IAC claim under Wiggins and supplied the TCCA 

with additional evidence in support of that claim. On April 20, 2011, the TCCA 

issued a short order dismissing Sorto’s 2010 state habeas application pursuant 

to Article 11.071, Section 5(a). Ex parte Sorto, No. WR-71381-03, 2011 WL 

1533377, at *1 (Tex. Crim. App. Apr. 20, 2011) (per curiam). Section 5(a) states 

that if a prisoner files a subsequent habeas application after filing an initial 

application, Texas courts will not consider the merits or grant relief unless the 

subsequent application contains sufficient specific facts establishing that one 

of three narrow exceptions applies. Tex. Code Crim. Proc. art. 11.071, § 5(a).1

Examining Sorto’s Wiggins claim under the relevant exception, the court 

 

1 In relevant part, Section 5(a) states the application must contain “sufficient specific 

facts establishing that . . . (3) by clear and convincing evidence, but for a violation of the 

United States Constitution no rational juror would have answered in the state’s favor one or 

more of the special issues that were submitted to the jury in the applicant’s trial.” Tex. Code 

Crim. Proc. art. 11.071, § 5(a).

 Case: 16-70005 Document: 00513780048 Page: 5 Date Filed: 12/01/2016
No. 16-70005

6

concluded that “the application does not contain sufficient specific facts 

establishing that but for a violation of the United States Constitution, no 

rational juror would have answered one or more of the special issues in the 

State’s favor.” Ex parte Sorto, 2011 WL 1533377, at *1.

The case then returned to the federal district court. On September 30, 

2015, the district court issued a memorandum and order denying habeas relief 

on all claims and declining to issue a COA. Sorto subsequently filed a motion 

to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), 

which the district court denied. Sorto now appeals.

II. STANDARD OF REVIEW

Sorto may only appeal the district court’s denials of habeas relief with 

respect to his Miranda and IAC claims if this Court grants COAs for those 

claims. 28 U.S.C. § 2253(c)(1). A COA may be issued “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2). For claims denied on the merits, a defendant must demonstrate 

that “reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues 

presented were ‘adequate to deserve encouragement to proceed further.’” Slack 

v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 

880, 893 (1983)). For claims denied on procedural grounds, the defendant must 

show that “jurists of reason would find it debatable whether the petition states 

a valid claim of the denial of a constitutional right, and that jurists of reason 

would find it debatable whether the district court was correct in its procedural 

ruling.” Id. at 478.

When a defendant seeks a COA on a claim that was adjudicated in state 

court, the claim must be reviewed in light of 28 U.S.C. § 2254(d). Miller-El v. 

Cockrell, 537 U.S. 322, 340 (2003). Section 2254(d) “imposes a highly 

deferential standard for evaluating state-court rulings and demands that 

 Case: 16-70005 Document: 00513780048 Page: 6 Date Filed: 12/01/2016
No. 16-70005

7

state-court decisions be given the benefit of the doubt.” Hardy v. Cross, 132 S. 

Ct. 490, 491 (2011) (per curiam) (quoting Felkner v. Jackson, 131 S. Ct. 1305, 

1307 (2011) (per curiam)). Thus, when § 2254(d) applies, a federal court may 

not grant habeas relief unless the state-court adjudication (1) “resulted in a 

decision that was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court” 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).

III. DISCUSSION

A. Custody During the 9:52 p.m. Interview

During the state court proceedings, Sorto claimed that the state trial 

court should have suppressed statements he made before the police warned 

him of his constitutional rights under Miranda at 11:21 p.m. He contended 

that he was subjected to custodial interrogation prior to receiving that 

warning. On appeal, this Court must determine whether reasonable jurists 

would debate whether the state court’s holding that Sorto was not in custody 

was contrary to, or involved an unreasonable application of, clearly established 

federal law, as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d).

In Miranda, the Supreme Court explained that “custodial interrogation” 

means “questioning initiated by law enforcement officers after a person has 

been taken into custody or otherwise deprived of his freedom of action in any 

significant way.” 384 U.S. at 444. According to case law elaborating on 

Miranda, “‘custody’ is a term of art that specifies circumstances that are 

thought generally to present a serious danger of coercion.” Howes v. Fields, 132 

S. Ct. 1181, 1189 (2012). “Two discrete inquiries are essential to the 

determination [of whether a defendant was in custody]: first, what were the 

circumstances surrounding the interrogation; and second, given those 

 Case: 16-70005 Document: 00513780048 Page: 7 Date Filed: 12/01/2016
No. 16-70005

8

circumstances, would a reasonable person have felt he or she was not at liberty 

to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 

112 (1995) (footnote omitted). A court should consider the totality of the 

circumstances, including (1) “the length of the questioning”; (2) “the location of 

the questioning”; (3) “the accusatory, or non-accusatory, nature of the 

questioning”; (4) “the amount of restraint on the individual’s physical 

movement”; and (5) “statements made by officers regarding the individual’s 

freedom to move or leave.” United States v. Wright, 777 F.3d 769, 774–75 (5th 

Cir. 2015) (cataloguing relevant cases).

In light of the facts presented, it does not appear that the state court’s 

decision was contrary to, or involved an unreasonable application of, clearly 

established federal law. See Yarborough v. Alvarado, 541 U.S. 652, 665 (2004). 

In Alvarado, the Supreme Court suggested that the facts that the interview 

was conducted at the police station, the interview lasted for two hours, and 

Alvarado was not told he was free to leave all weighed in favor of the view that 

Alvarado was in custody. Id. at 665. However, given that Alvarado arrived at 

the station voluntarily, the officers did not threaten him or suggest he would 

be placed under arrest, and the officers twice asked Alvarado if he wanted to 

take a break, the Supreme Court ultimately concluded that the state court had 

not unreasonably applied the custody standard. Id. at 664–65.

Similarly, in the instant case, Sorto notes that the interview lasted over 

an hour before he was read his rights; it was conducted at a police station; and 

at least after the oral swab was taken, the officers considered him a suspect.

However, during the suppression hearing in state court, the government 

presented evidence suggesting that Sorto came to the homicide office on his 

own and without pressure; the police never handcuffed Sorto throughout the 

interviews that night or the following morning; Detective Ortiz never told Sorto 

he could not leave; and the officers never locked the door to the interview room.

 Case: 16-70005 Document: 00513780048 Page: 8 Date Filed: 12/01/2016
No. 16-70005

9

These facts suggest that Sorto made his statements voluntarily and in a 

noncoercive atmosphere. Because there was evidence suggesting Sorto was not 

in custody, we hold that reasonable jurists would agree that the state court did 

not unreasonably apply the Supreme Court’s custody standard. See Id. at 664–

65. Accordingly, we deny a COA with respect to Sorto’s Miranda claim.

B. Ineffective Assistance on the Mitigation Special Issue

Sorto also argues that he should be granted a COA for his claim that his 

trial attorneys provided ineffective assistance under Wiggins and Strickland 

v. Washington, 466 U.S. 668 (1984). He claims that his trial counsel 

inadequately defended against a death sentence by failing to subpoena 

witnesses who were key to the mitigation special issue. Sorto suggests that 

testimony from these witnesses “very well could have influenced the jurors to 

answer the mitigation special issue differently and sentence Sorto to life in 

prison rather than to death.” 

In the proceedings below, the district court held that “[b]ecause the state 

courts procedurally barred Sorto’s attempt to expand his Strickland claim in 

the 2010 state habeas application, the only claims properly before the Court 

are the claims and evidence Sorto submitted in the 2005 state habeas 

application.” However, in the interests of justice, the district court considered 

the evidence presented in both the 2005 and 2010 applications. The district 

court held that, regardless of which application was reviewed, it was 

reasonable for the state court to conclude that counsel did not provide 

ineffective assistance. On appeal, Sorto contends that (1) the district court 

erred in concluding his 2010 IAC claim was procedurally barred and (2) it was 

unreasonable to conclude that counsel’s assistance was sufficient under 

Wiggins and Strickland. 

 Case: 16-70005 Document: 00513780048 Page: 9 Date Filed: 12/01/2016
No. 16-70005

10

1. Procedural Bar

“If a state court clearly and expressly bases its dismissal of a prisoner’s 

claim on a state procedural rule, and that procedural rule provides an 

independent and adequate ground for the dismissal, the prisoner has 

procedurally defaulted his federal habeas claim.” Nobles v. Johnson, 127 F.3d 

409, 420 (5th Cir. 1997). This Court has held that Article 11.071, Section 5(a)

of the Texas Code of Criminal Procedure constitutes an independent and 

adequate state procedural ground for dismissal in the IAC context; therefore, 

an IAC claim is procedurally defaulted if the TCCA dismisses it under 

Section 5(a). Barrientes v. Johnson, 221 F.3d 741, 758–59 & n.10 (5th Cir. 

2000); Nobles, 127 F.3d at 422–23; Emery v. Johnson, 139 F.3d 191, 195–96 

(5th Cir. 1997). 

The TCCA clearly and expressly based its dismissal of Sorto’s 2010 IAC 

claim on Section 5(a). Ex parte Sorto, 2011 WL 1533377, at *1. Contrary to 

Sorto’s contentions on appeal, the TCCA’s specific reference to the relevant 

exception in Section 5(a) did not make the language of the order ambiguous—

rather, it made clear that Sorto had failed to make the requisite showing under 

that exception. See id. (holding that “the application does not contain sufficient 

specific facts establishing that but for a violation of the United States 

Constitution, no rational juror would have answered one or more of the special 

issues in the State’s favor”). Accordingly, we hold that reasonable jurists would 

agree that the district court was correct in concluding that the IAC evidence 

raised in Sorto’s 2010 state habeas application was procedurally barred and 

thus that the district court could only consider the evidence raised in Sorto’s 

2005 state habeas application. 

Sorto also argues that his 2010 IAC claim is procedurally viable under 

Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 

(2013), because his state habeas counsel in 2005 was ineffective. “A prisoner 

 Case: 16-70005 Document: 00513780048 Page: 10 Date Filed: 12/01/2016
No. 16-70005

11

may obtain federal review of a defaulted claim by showing cause for the default 

and prejudice from a violation of federal law.” Martinez, 132 S. Ct. at 1316. In 

Martinez, the U.S. Supreme Court held that the ineffectiveness of a prisoner’s 

postconviction attorney in the initial state habeas proceeding can be used to 

establish cause for a procedural default. Id. at 1320; see also Trevino, 133 S. 

Ct. at 1921 (applying Martinez to Texas’s habeas framework). To meet this 

exception to the procedural default rule, however, the prisoner must show that 

(1) his postconviction attorney in the initial state habeas proceeding was 

“ineffective under the standards of Strickland” and (2) “the underlying 

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say 

that the prisoner must demonstrate that the claim has some merit.” Martinez, 

132 S. Ct. at 1318. 

Here, the district court considered the evidence presented in Sorto’s 2010 

state habeas application and concluded that the additional evidence did not 

establish that Sorto’s IAC claim had merit. As discussed below, the district 

court’s assessment of the merits of the 2010 expanded IAC claim was correct.

Therefore, we hold that reasonable jurists would agree with the district court’s 

conclusion that Sorto has not shown the underlying IAC claim is substantial 

and therefore has not shown cause for the procedural default.

2. Sufficiency of Counsel’s Assistance

Generally, to prove an IAC claim, the defendant must show that 

(1) “counsel’s representation fell below an objective standard of 

reasonableness” and (2) “the deficient performance prejudiced the defense.” 

Strickland, 466 U.S. at 687–88. With respect deficient performance, there is “a 

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

reasonable professional assistance.” Id. at 689–90. With respect to prejudice, 

the “defendant must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

 Case: 16-70005 Document: 00513780048 Page: 11 Date Filed: 12/01/2016
No. 16-70005

12

different.” Id. at 694. In federal habeas proceedings, our review of an IAC claim 

is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The 

state court’s decision will be upheld if the state court had a reasonable basis 

for concluding that counsel satisfied Strickland’s deferential standard.

Harrington v. Richter, 562 U.S. 86, 105 (2011). 

a. 2005 state habeas application

In his 2005 state habeas application, Sorto alleged that his trial counsel 

was ineffective for failing to adequately investigate and present evidence of 

post-traumatic stress disorder (“PTSD”) and exposure to hazardous chemicals. 

Sorto provided only an affidavit from himself in support of his IAC claim. In 

response, Sorto’s trial counsel filed affidavits describing their efforts to develop 

evidence of Sorto’s PTSD and chemical exposure and explaining why they 

chose not to raise these issues during the sentencing phase. 

The state habeas court found that Sorto had failed “to demonstrate that 

witnesses or evidence were available to support [his] claims regarding PTSD

and/or hazardous chemical exposure.” In addition, the state court found that 

“the defense team conducted extensive research and investigation 

regarding . . . chemical exposure,” including reviewing documents, consulting 

with people who knew Sorto, consulting with a university chemistry 

department, conducting a brain scan that revealed no evidence of organic 

disruption, and consulting with a psychiatrist. Considering the trial attorneys’ 

efforts, the evidence they collected, and the lack of evidence Sorto supplied in 

support of his IAC claim, the state court concluded that “trial counsels’ 

investigation of [Sorto’s] potential mitigating evidence was objectively 

reasonable and consistent with a coherent trial strategy.” 

In reviewing the state court’s decision, the district court aptly noted that 

“this is not a case where trial counsel ‘failed to pursue known leads’ or 

‘ignored . . . useful information.’” See Skinner v. Quarterman, 576 F.3d 214, 

 Case: 16-70005 Document: 00513780048 Page: 12 Date Filed: 12/01/2016
No. 16-70005

13

220 (5th Cir. 2009). On the contrary, there is extensive evidence that trial 

counsel sought to develop defenses based on PTSD and chemical exposure but 

ultimately concluded there was insufficient evidence to support these defenses. 

Accordingly, we hold that reasonable jurists would agree that the state court 

had a reasonable basis for concluding that trial counsel’s assistance was 

sufficient under Wiggins and Strickland.

b. 2010 state habeas application

In his 2010 state habeas application, Sorto claimed his attorneys should 

have conducted a broader investigation into his background that would have 

revealed a “wealth of mitigating evidence,” including his PTSD, exposure to 

warfare, exposure to hazardous chemicals, intellectual disability, extreme 

poverty and malnutrition, forced child labor, and beatings and severe 

punishment. In support, Sorto provided affidavits from eight witnesses who 

were willing to testify in his 2003 trial. Although the TCCA did not reach the 

merits of Sorto’s 2010 claim, see Ex parte Sorto, 2011 WL 1533377, at *1, 

during the federal habeas proceedings, the district court reviewed Sorto’s 

expanded IAC claim de novo and concluded Sorto had failed to show deficient 

performance and prejudice. 

This Court “must be particularly wary of arguments that essentially 

come down to a matter of degrees. Did counsel investigate enough? Did counsel 

present enough mitigating evidence?” Skinner, 576 F.3d at 220 (quoting 

Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)). When the unpresented 

evidence is not “shocking and starkly different than that presented at trial,” 

this Court has held that the IAC claim is not viable. Blanton v. Quarterman, 

543 F.3d 230, 239–40 n.1 (5th Cir. 2008); Coble v. Quarterman, 496 F.3d 430, 

437 (5th Cir. 2007) (holding that the state court’s decision was not 

unreasonable where much of the evidence defendant argued should have been 

developed more effectively was nonetheless presented at trial).

 Case: 16-70005 Document: 00513780048 Page: 13 Date Filed: 12/01/2016
No. 16-70005

14

Here, it appears that the evidence presented at trial was not starkly 

different from the evidence Sorto contends should have been presented. Sorto’s 

trial counsel called six witnesses who testified on his behalf during the 

punishment phase. Four family members testified regarding his childhood, 

including his exposure to the Salvadoran civil war, poverty and malnutrition, 

beatings and severe punishment, abandonment by his mother, poor academic 

record, and work fumigating crops. In addition, a forensic psychiatrist testified 

about Sorto’s background, including the beatings and sexual abuse Sorto 

experienced as a child, and discussed Sorto’s risk for future dangerousness. 

The evidence presented at trial touched on the same issues Sorto raised in his 

2010 state habeas application, albeit not to the degree Sorto contends was 

warranted. Thus, it seems that Sorto’s 2010 IAC claim did not make a 

sufficient showing of deficient performance.

In assessing prejudice, a court must “evaluate the totality of the 

available mitigation evidence—both that adduced at trial, and the evidence 

adduced in the habeas proceeding—in reweighing it against the evidence in 

aggravation.” Williams v. Taylor, 529 U.S. 362, 397–98 (2000). The district 

court noted that the evidence suggested Sorto had engaged in a pattern of 

escalating offenses “from violent robberies, to the rape and murder of one 

woman, to the rape and murder of two women.” Given the severity of the 

offense and Sorto’s apparent pattern of criminal activity, we hold that 

reasonable jurists would agree Sorto has not shown any reasonable probability 

that the additional mitigating evidence would have swayed the jury to impose 

a lesser sentence. Thus, we deny a COA with respect to Sorto’s IAC claims.

IV. CONCLUSION

For the foregoing reasons, we DENY COAs with respect to Sorto’s 

Miranda and IAC claims. In connection with his Atkins claim, supplemental 

 Case: 16-70005 Document: 00513780048 Page: 14 Date Filed: 12/01/2016
No. 16-70005

15

briefing will be permitted on the question of whether 28 U.S.C. 

§ 2254(b)(1)(B)(ii) applies in the present case.

 Case: 16-70005 Document: 00513780048 Page: 15 Date Filed: 12/01/2016