IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-70016

ABEL REVILL OCHOA, 

 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 Northern District of Texas

USDC No. 3:09-CV-2277

Before ELROD, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Abel Revill Ochoa was convicted for the murder of his wife and daughter 

in Texas state court. After his unsuccessful direct appeal and state habeas 

petition, Ochoa filed a federal habeas petition under 28 U.S.C. § 2254 in the 

district court, which denied habeas relief and declined to issue a certificate of 

appealability (COA). Ochoa also filed a motion requesting funds for a 

 

* Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth 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 Fifth Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 18, 2018

Lyle W. Cayce

Clerk

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mitigation investigator, which the district court denied. Ochoa now seeks a 

COA on three claims for habeas relief and appeals the denial of his funding 

motion. We DENY the COA on all three claims and AFFIRM the denial of 

Ochoa’s funding motion.

I.

Ochoa was convicted of capital murder of his wife and daughter in 2003. 

The state habeas court found the following:1 

1. The Court finds that the thirty-year-old Ochoa shot several 

family members after smoking crack cocaine on Sunday, August 

4, 2002. The record reflects that, twenty minutes after smoking 

a ten-dollar rock of crack, Ochoa entered his living room and 

systematically shot his wife Cecilia, their nine-month-old 

daughter (Anahi), Cecilia’s father (Bartolo), and Cecilia’s 

sisters (Alma and Jackie). Ochoa reloaded his .9mm Ruger and 

chased his 7-year-old daughter, Crystal, into the kitchen where 

he shot her four times. Of the six victims, only Alma survived.

2. The record reflects that, minutes after the shooting, the police 

stopped Ochoa while driving his wife’s Toyota 4Runner. Ochoa 

told the arresting officer that the gun he used was at his house 

on the table, that he could not handle the stress anymore, and 

that he had gotten tired of his life. In a search conducted after 

arrest, the police found a crack pipe, steel wool, and an empty 

clear baggie on Ochoa’s person. Ochoa gave the police a detailed 

written statement recounting his actions in the shootings. 

After a trial, the jury found Ochoa guilty and sentenced him to death. On direct 

appeal, the Texas Court of Criminal Appeals (CCA) affirmed his conviction and 

sentence. Ochoa v. State, No. AP-79,663, 2005 WL 8153976, at *1 (Tex. Crim. 

App. Jan. 26, 2005). Through appointed counsel, Ochoa filed a state 

application for habeas corpus on February 11, 2005, to which he added a pro 

se supplement. Ochoa then filed an additional pro se application on March 19, 

 

1 These facts are presumed to be correct and entitled to deference under 28 U.S.C. 

§ 2254(e)(1). 

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2007, to yet again supplement his previous application. The CCA denied state 

habeas relief. Ex parte Ochoa, No. WR-67,495-02, 2009 WL 2525740, at *1 

(Tex. Crim. App. Aug 19, 2009). The CCA also rejected Ochoa’s subsequent pro 

se application as an abuse of writ under Texas Code of Criminal Procedure 

Article 11.071, Section 5. Id.

Ochoa subsequently filed a federal petition for a writ of habeas corpus 

under 28 U.S.C. § 2254. Ochoa presented 21 claims for relief, including the 

three claims pertinent to his COA application, all of which the district court

rejected as unexhausted, procedurally defaulted, or meritless. Ochoa alleged 

in his federal petition—for the first time—that he was shackled during the 

punishment phase of his trial, his right to due process was violated as a result, 

and his trial counsel was ineffective for failing to object to shackling. Ochoa 

attached an affidavit of his trial mitigation investigator who attended his trial, 

stating:2

I recall being appalled when I saw Mr. Ochoa, who wore leg 

irons/shackles during his trial, walk to the witness stand. He 

passed by the jurors, who were sitting in the jury box, shuffling his 

feet due to the restraint the leg chains imposed. There could be no 

doubt that Mr. Ochoa was shackled when he walked to the witness 

stand[.] 

The district court rejected Ochoa’s due process claim as unexhausted and 

procedurally defaulted. The district court alternatively rejected this claim 

onthe merits, because “[t]he record [did] not reflect that Ochoa was even 

shackled, much less a reasonable probability that the jury was aware of it.” As 

to the shackling-based ineffective assistance of trial counsel (IATC) claim, the 

 

2 Without deciding the propriety of considering the affidavit, we note that 28 U.S.C. 

§ 2254(e)(2) “restricts the discretion of federal habeas courts to consider new evidence when 

deciding claims that were not adjudicated on the merits in state court.” Cullen v. Pinholster, 

563 U.S. 170, 186 (2011). 

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district court concluded that it was unexhausted, procedurally defaulted, and 

meritless. 

Ochoa also alleged that, during voir dire, the trial court limited his trial 

counsel’s ability to question the jurors whether they could fairly consider all 

mitigating evidence, and his trial counsel was ineffective for failing to timely 

object to such limitations. Ochoa claimed that, because of this error, the jurors 

were biased against him. Ochoa noted that, three days before jury selection 

was complete, one of the seated jurors was excused from service after 

remembering learning through pre-trial publicity that Ochoa shot his entire 

family and telling the court that she could not be fair and impartial. The 

district court rejected the voir dire-based IATC claim because it was 

unexhausted and procedurally defaulted. Alternatively, the district court 

concluded that this claim was meritless because the trial court dismissed the 

sole juror who had actual bias, and Ochoa merely speculated that the other 

jurors were biased. After denying relief, the district court declined to issue a 

COA for any claim. 

Along with his § 2254 petition, Ochoa also filed a motion for funds for a 

mitigation investigator under 18 U.S.C. § 3599 to pursue a Wiggins claim based 

on his trial counsel’s alleged failure to investigate mitigation evidence. 

See Wiggins v. Smith, 539 U.S. 510, 534–35 (2003) (concluding that counsel’s 

failure to investigate and discover mitigation evidence can be prejudicial). The 

district court denied this motion because “Ochoa [did] not complain that trial 

counsel did not know about the poverty, alcoholism or abuse to be investigated, 

and [did] not indicate how further investigation of these matters will 

substantially improve his chances of success.” 

Ochoa now seeks a COA for the three claims based on alleged shackling 

and voir dire, and appeals the denial of funds under § 3599. Ochoa has not 

sought a COA for the Wiggins claim and concedes that the funding request is 

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entirely unrelated to the three claims for which he seeks a COA in this 

proceeding. 

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA), a federal habeas petitioner must obtain a COA before appealing the 

denial of habeas relief. 28 U.S.C. § 2253(b), (c)(1); United States v. Williams, 

897 F.3d 660, 661 (5th Cir. 2018). “A COA may issue ‘only if the applicant has 

made a substantial showing of the denial of a constitutional right.’ ” Buck v. 

Davis, 137 S. Ct. 759, 773 (2017) (quoting 28 U.S.C. § 2253(c)(2)). Because the 

COA is a jurisdictional requirement, “[u]ntil the prisoner secures a COA, the 

[c]ourt of [a]ppeals may not rule on the merits of his case.” Id.

“The COA inquiry . . . is not coextensive with a merits analysis.” Id. The 

only question at this stage is whether “jurists of reason could disagree with the 

district court’s resolution of [the petitioner’s] constitutional claims or

. . . conclude the issues presented are adequate to deserve encouragement to 

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). “[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. Nevertheless, “when a court of appeals properly 

applies the COA standard and determines that a prisoner’s claim is not even 

debatable, that necessarily means the prisoner has failed to show that his 

claim is meritorious.” Buck, 137 S. Ct. at 774. 

If the district court denies relief on a procedural ground, petitioner must 

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

district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 

U.S. 134, 140–41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 

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III.

Ochoa contends that reasonable jurists could disagree with the district 

court’s resolution of his shackling-based and voir dire-based claims.3 For the 

following reasons, we hold that the district court’s conclusions are not 

debatable. 

A.

Ochoa argues that the district court’s resolution of his due process claim 

based on alleged shackling is debatable. Because of its inherently prejudicial 

nature, “[s]hackling a defendant is prohibited unless ‘justified by an essential 

state interest such as the interest of courtroom security.’ ” Hatten v. 

Quarterman, 570 F.3d 595, 603 (5th Cir. 2009) (quoting Deck v. Missouri, 544 

U.S. 622, 624 (2005)). If a court erroneously shackles a defendant during the 

punishment phase of a capital trial, the defendant’s appearance in shackles 

“almost inevitably implies to a jury, as a matter of common sense, that court 

authorities consider the offender a danger to the community” and “undermines 

the jury’s ability to weigh accurately all relevant considerations . . . .” Deck, 

544 U.S. at 633. Thus, ordinarily, the state must prove “beyond a reasonable 

doubt that the [shackling] error complained of did not contribute to the verdict 

obtained.” Id. at 635 (alteration in original) (quoting Chapman v. California, 

386 U.S. 18, 24 (1967)). On collateral review, however, a federal court grants 

relief only if the shackling error had a “substantial and injurious effect or 

influence in determining the jury’s verdict.” Hatten, 570 F.3d at 604 (quoting 

Fry v. Pliler, 551 U.S. 112, 121–22 (2007)). 

 

3 As Ochoa’s counsel conceded during oral argument, we can rule on the COA issues 

regardless of how we decide the funding issue because the two are completely unrelated. 

Oral Argument at 6:54–7:32; 10:18–43, Ochoa v. Davis (No.17-70016), 

http://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings.

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Ochoa has presented a highly unusual shackling claim, because, as the 

district court noted, the record does not show whether Ochoa was even 

shackled during his trial. If Ochoa was not even shackled, no reasonable jurist 

can debate whether shackling violated his right to due process. 

Assuming arguendo that Ochoa was, in fact, shackled, he is still not 

entitled to a COA. Federal courts may not grant habeas relief on unexhausted 

and procedurally defaulted claims. 28 U.S.C. § 2254(b)(1)(A); Norman v. 

Stephens, 817 F.3d 226, 231–32 (5th Cir. 2016). “If a claim is merely 

unexhausted but not procedurally defaulted, then, absent waiver by the state, 

a district court must either dismiss the federal petition or stay the federal 

proceeding while the petitioner exhausts the unexhausted claim in state 

court.” Norman, 817 F.3d at 231 n.1. Unexhausted claims become 

procedurally defaulted if “the state court to which the prisoner would have to 

present his claims in order to exhaust them would find the claims procedurally 

barred . . . .” Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005). The district 

court concluded that Ochoa’s unexhausted claim would be barred in state court 

under Article 11.071, Section 5. Ochoa concedes that “[t]his claim was not 

raised in state court and, thus, was unexhausted and likely defaulted . . . .” 

Appellant’s Br. 36; see also id. at 42 n.5 (“[T]he [IATC] claim, as well as the 

underlying due process claim, were defaulted . . . .”). Accordingly, no 

reasonable jurist would debate whether this claim is unexhausted and 

procedurally defaulted.

B.

Next, Ochoa argues that the district court’s resolution of his shacklingbased IATC claim is debatable. Again, Ochoa concedes that this IATC claim is 

both unexhausted and procedurally defaulted. Therefore, it is not debatable 

that this IATC claim is procedurally defaulted. 

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Nevertheless, a federal court may review the merits of a procedurally 

barred claim if the petitioner can “demonstrate cause for the default and actual 

prejudice as a result of the alleged violation of federal law . . . .” Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Under the Martinez/Trevino exception, 

the petitioner may establish cause “by showing that (1) his state habeas 

counsel was constitutionally deficient in failing to include the claim in his first 

state habeas application; and (2) the underlying ineffective-assistance-of-trialcounsel claim is ‘substantial.’ ” Reed v. Stephens, 739 F.3d 753, 774 (5th Cir. 

2014) (quoting Martinez v. Ryan, 566 U.S. 1, 14 (2012)); see also Trevino v. 

Thaler, 569 U.S. 413, 428–29 (2013) (applying Martinez to Texas). A claim is 

“insubstantial” if it “does not have any merit” or “is wholly without factual 

support.” Martinez, 566 U.S. at 16. 

Reasonable jurists would not disagree that Ochoa cannot overcome the 

procedural default, because Ochoa’s underlying shackling-based IATC claim is 

insubstantial. See id. To establish an IATC claim, the petitioner must show 

“both that counsel performed deficiently and that counsel’s deficient 

performance caused him prejudice.” Buck, 137 S. Ct. at 775; see also Strickland 

v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, the petitioner 

“must overcome a ‘strong presumption’ that the representation did fall ‘within 

the wide range of reasonable professional assistance.’ ” Beatty v. Stephens, 759 

F.3d 455, 463 (5th Cir. 2014) (quoting Strickland, 466 U.S. at 689). To 

establish prejudice, the petitioner must show “a reasonable probability that, 

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

been different.” Id.

The district court rejected this IATC claim because the underlying due 

process claim was meritless. It persuasively explained: 

Ochoa has not provided the information needed on federal habeas 

review to show that any shackling, if it indeed occurred, would 

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have been unjustified under Deck, that an objection at trial would 

have prevailed, or that a point of error on appeal would have been 

sustained. Ochoa has not established that the due process 

complaint [based on shackling] . . . has merit, much less that his 

counsel was ineffective for failing to assert it in an objection. 

Indeed, “[u]nsupported allegations and pleas for presumptive prejudice are not 

the stuff that Strickland is made of.” Sawyer v. Butler, 848 F.2d 582, 589 (5th 

Cir. 1988), reh’g, 881 F.2d 1273 (1989), aff’d sub nom. Sawyer v. Smith, 497 

U.S. 227 (1990). Thus, no reasonable jurist would disagree that Ochoa cannot 

overcome the procedural default. 

C.

Ochoa also asserts that the district court’s resolution of his voir direbased IATC claim is debatable. Because Ochoa concedes his failure to present 

this IATC claim in state court, reasonable jurists would not disagree that this 

claim is unexhausted and procedurally defaulted. 

Nor would reasonable jurists debate whether Ochoa can overcome the 

procedural default. This IATC claim is insubstantial. See Martinez, 566 U.S. 

at 16. As the district court noted, Ochoa cannot establish prejudice. See 

Strickland, 466 U.S. at 687. In Garza v. Stephens, this court rejected a habeas 

petitioner’s contention that his trial counsel failed to question the jurors about 

their views relating to the death penalty and the murder of a police officer. 738 

F.3d 669, 675 (5th Cir. 2013). There, the petitioner’s claim “rel[ied] solely on 

speculation” that “the jurors may not have been fair and impartial.” Id. at 676. 

The petitioner “[did] 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.” Id. Here, as in Garza, Ochoa’s contention is wholly 

insufficient. Although the trial court removed one juror because she professed 

her inability to be fair and impartial, Ochoa has provided no reason—other 

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than his speculation—why other jurors also may not have been fair and 

impartial. 

In addition to his failure to establish prejudice under Strickland, Ochoa 

failed to show his trial counsel’s deficiency. 466 U.S. at 687. By his own 

account, Ochoa’s trial counsel objected not once, but twice. After the trial court 

removed the biased juror, Ochoa’s trial counsel sought to question the 

remaining jurors. Id. In doing so, “[c]ounsel made a lengthy objection during 

which he referenced an earlier defense request to question the jurors about the 

accurate aggravating facts of the case but had been prohibited from doing so 

by the court.” Id. (emphasis added). Ochoa’s contention that his trial counsel 

should have objected sooner cannot overcome a strong presumption that the 

representation fell within the wide range of reasonable professional assistance. 

See Beatty, 759 F.3d at 463. Accordingly, no reasonable jurist would debate 

that this claim is procedurally barred. 

Because no reasonable jurist would disagree with the district court’s 

resolution of these three habeas claims, a COA is unwarranted. 

IV.

We now turn to Ochoa’s appeal of the denial of his 18 U.S.C. § 3599 

motion for funds to pursue his unexhausted Wiggins claim.4 We review a 

denial of a funding motion under a highly deferential abuse of discretion 

standard. Crutsinger v. Davis, 898 F.3d 584, 586 (5th Cir. 2018). “Section 

3599(a) authorizes federal courts to provide funding to a party who is facing 

the prospect of a death sentence and is ‘financially unable to obtain adequate 

representation or investigative, expert, or other reasonably necessary 

 

4 As noted above, the funding issue is completely unrelated to the COA issues, and 

Ochoa has not sought a COA on the Wiggins claim. 

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services.’ ” Ayestas v. Davis, 138 S. Ct. 1080, 1092 (2018) (quoting 

18 U.S.C. § 3599(a)). 

If the requested services are “reasonably necessary,” then a court “may 

authorize the [applicant’s] attorneys to obtain such services on [his] 

behalf . . . .” 18 U.S.C. § 3599(f). Rejecting this court’s “substantial need” test, 

the Supreme Court explained that “[a] natural consideration informing the 

exercise of that discretion is the likelihood that the contemplated services will 

help the applicant win relief.” Ayestas, 138 S. Ct. at 1094. “Proper application 

of the ‘reasonably necessary’ standard thus requires courts to consider the 

potential merit of the claims that the applicant wants to pursue, the likelihood 

that the services will generate useful and admissible evidence, and the 

prospect that the applicant will be able to clear any procedural hurdles 

standing in the way.” Id. “[T]he touchstone of the inquiry is ‘the likely utility

of the services requested’ and that ‘§ 3599(f) cannot be read to guarantee that 

an applicant will have enough money to turn over every stone.’ ” Crutsinger, 

898 F.3d at 586 (quoting Ayestas, 138 S. Ct. at 1094). 

The district court denied Ochoa’s funding motion under the prior 

“substantial need” standard before Ayestas was decided. Ochoa asks us to 

remand so the district court may consider his motion under the correct 

standard. While we have twice remanded funding denials after Ayestas, in 

other cases, we have decided that remand was unnecessary. Compare 

Robertson v. Davis, 729 F. App’x 361, 362 (5th Cir. 2018) (remanding to the 

district court), and Sorto v. Davis, 716 F. App’x 366, 366 (5th Cir. 2018) (same), 

with Crutsinger, 898 F.3d at 586–87 (deciding the funding issue without 

remanding), and Mamou v. Davis, No. 17-70001, 2018 WL 3492821, at *3–*5 

(5th Cir. July 19, 2018) (same). 

Here, remand is unnecessary, because “the reasons the district court 

gave for its ruling remain sound after Ayestas . . . .” Mamou, 2018 WL 3492821, 

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at *3. The requested funds cannot help Ochoa win relief on his unexhausted, 

procedurally defaulted, and meritless Wiggins claim.

Ochoa concedes that his Wiggins claim is unexhausted and procedurally 

defaulted. As the district court determined, Ochoa cannot overcome the 

procedural default because he “has not shown a lack of diligence by his original 

state habeas counsel in those proceedings, but even if he had, such counsel 

could not be found ineffective for the purpose of the Martinez exception for 

failing to present a meritless claim.” See also Reed, 739 F.3d at 774. It is 

unlikely that Ochoa will clear these procedural hurdles. See Ayestas, 138 S. 

Ct. at 1094. 

As to the merits, the district court astutely observed:

In the instant case, even if the claim comes within the exception to 

procedural bar, the alternative merits analysis is correct. Ochoa’s 

motion focuses on his complaint that trial counsel was ineffective 

for failing to investigate and present mitigating evidence at his 

trial. Ochoa does not complain that trial counsel did not present 

evidence of his background, but merely that he did not present 

enough of it. But this was not a case where an abusive background 

could help to explain a long criminal history or other pattern of 

misbehavior that inexorably led to the crime. This was a case 

where the defendant was a hard-working, family man who did not 

have as much as a traffic ticket before the afternoon when he 

murdered five people, including his wife, her family members and 

their children. Trial counsel chose to focus on the power of Ochoa’s 

cocaine addiction to explain this sudden anomaly that occurred 

after his wife refused to buy him more drugs.

At trial, counsel presented evidence from multiple expert and lay 

witnesses touching on Ochoa’s life, background, character, 

culpability, potential for rehabilitation, and projected conditions of 

confinement if sentenced to life. Ochoa’s complaint does not 

identify an area or subject that was not generally covered by the 

evidence trial counsel presented to the jury. Instead, he points to 

additional evidence of Ochoa’s background that may have been 

cumulative of what was already presented or less relevant than 

the evidence actually presented. For example, he argues that 

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additional evidence should have been presented regarding his 

early life in Mexico. Ochoa’s father testified about their poor living 

conditions there, but Ochoa testified at trial that his earliest 

memories were living on a farm in Texas. Ochoa also now argues 

that additional testimony should have been provided regarding 

Ochoa’s father, specifically regarding his alcoholism and abuse of 

Ochoa’s family. But Ochoa and his brother testified that their 

father was an alcoholic that would beat their mother, requiring the 

assistance of Ochoa and his brothers to get their father off of her, 

and that this upset Ochoa greatly. Ochoa’s father also testified 

about the history of alcohol abuse in their family, and that he used 

[to] get drunk and beat his family, but that he stopped after he had 

an accident while driving intoxicated. Defense expert Dr. Edward 

Nace also testified about the addiction problem in Ochoa’s family, 

including his father’s alcoholism and its impact on Ochoa. 

Not only is this allegation insufficient to warrant habeas relief, it 

would be insufficient to grant investigative funding.

We agree with this persuasive analysis. Because extensive mitigation 

evidence was available to Ochoa’s defense and later presented to the jury, it is 

unlikely that the contemplated services will help Ochoa win relief on the 

Wiggins claim. See Ayestas, 138 S. Ct. at 1094. Moreover, Ochoa has not 

explained how further investigation would yield evidence that is different from 

what was available at the time of his trial. Instead, Ochoa is simply seeking 

to “turn over every stone,” and § 3599 does not entitle him to do so. Id. The 

district court did not abuse its discretion in denying funding as the funding is 

not reasonably necessary. 

V.

 For the foregoing reasons, we DENY Ochoa’s application for a COA and 

AFFIRM the denial of funds under § 3599(f). 

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