IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70019

CARLOS TREVINO, 

 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 Western District of Texas

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Carlos Trevino (“Trevino”) seeks a certificate of appealability (“COA”) to 

appeal the district court’s dismissal, on the pleadings and without an 

evidentiary hearing, of his habeas corpus petition under 28 U.S.C. § 2254, 

claiming that he was deprived his Sixth Amendment right to effective 

assistance of counsel when his trial counsel allegedly failed to adequately 

investigate and present mitigation evidence at the punishment phase of his 

capital murder trial. The district court held that Trevino’s claim is procedurally 

barred, even under Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 

L.Ed.2d 272 (2012), and Trevino v. Thaler, –––U.S. ––––, 133 S. Ct. 1911, 185 

United States Court of Appeals

Fifth Circuit

FILED

July 11, 2016

Lyle W. Cayce

Clerk

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L. Ed. 2d 1044 (2013), because Trevino failed to sufficiently allege that his 

initial state habeas counsel rendered ineffective assistance. In the alternative, 

the district court held that his claim must be dismissed on the merits because 

the new mitigating evidence Trevino seeks to develop and admit, which the 

district court characterized as “double-edged,” could not outweigh the 

substantial aggravating evidence.

Trevino seeks a COA, arguing that reasonable jurists could debate 

whether the district court properly dismissed his claims on the pleadings and 

whether it erred by failing to hold an evidentiary hearing. For the reasons set 

out below, we conclude that reasonable jurists could debate whether the 

district court correctly dismissed his habeas claim with respect to potential 

evidence of his fetal alcohol syndrome (“FAS”) or, more broadly, fetal alcohol 

spectrum disorder (“FASD”). Indeed, reasonable jurists would agree that the 

district court erred in prematurely dismissing that claim. We also conclude 

that no reasonable jurist could debate whether the district court erred in 

dismissing his habeas claim with respect to his additional character witness 

testimony that is not relevant to an FASD diagnosis or whether the district 

court erred by failing to hold an evidentiary hearing before its dismissal on the 

pleadings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This is the second time this case has come before us and the first in which 

we reach beyond the procedural default issue to address the merits. Trevino 

contends that if his trial counsel had conducted a constitutionally sufficient 

investigation, he not only would have located more witnesses to testify about 

his character but also would have been able to discover and introduce evidence 

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that Trevino suffers from FASD. The background is set out more fully in the 

prior opinions in this case,1 but we summarize them here for convenience.

A. TRIAL2

Trevino was convicted for the June 9, 1996 gang rape and murder of 15-

year-old Linda Salinas in San Antonio, Texas. One of the other participants, 

Juan Gonzales (Trevino’s cousin), testified on behalf of the prosecution that he 

was with the group that night, though he walked away briefly during the 

murder. He testified that although Trevino did not rape Salinas himself, he 

held her down while another participant raped her; that Trevino encouraged 

Gonzales to rape her (though Gonzales refused); that Trevino discussed the 

need to get rid of Salinas as a witness; and that Trevino later appeared with 

blood on his shirt. Gonzales also testified that Trevino bragged after the 

murder that he had “learned how to kill in prison” and “learned how to use a 

knife in prison.” Thus, although Gonzales did not witness the murder itself, he 

presented substantial testimony of Trevino’s involvement in the crime.

Salinas’s body was discovered the day after her murder, and an autopsy 

revealed that she suffered two stab wounds to her neck, one of which was fatal, 

as well as other injuries consistent with sexual assault. The prosecution 

presented this autopsy evidence at Trevino’s trial. The prosecution also 

presented testimony from forensic and DNA experts establishing that fibers 

found on Salinas’s clothing were consistent with fibers from Trevino’s slacks 

and that Trevino’s DNA could not be excluded as a source of DNA found in 

Salinas’s panties.

 

1 See Trevino v. Thaler, 678 F. Supp. 2d 445, 467-71 (W.D. Tex. 2009), aff’d, 449 F. 

App’x 415 (5th Cir. 2011), vacated and remanded, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), 

and the district court’s subsequent opinion at Trevino v. Stephens, No. CIV. SA-01-CA-306-

XR, 2015 WL 3651534 (W.D. Tex. June 11, 2015).

2 The facts in this section come from our previous opinion. See 449 F. App’x at 416-18.

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Based on this and other evidence, the jury returned a guilty verdict. 

During the punishment phase, the prosecution presented substantial evidence 

regarding Trevino’s culpability and future dangerousness, including his former 

arrests and admitted membership in a violent street gang. Trevino’s state trial 

counsel called only one witness, Trevino’s aunt, who testified generally about 

his rough childhood and his mother’s alcoholism. Her testimony, comprising 

approximately five pages, made up the entirety of his mitigation case. 

At the conclusion of the punishment phase, the jury found (1) that he 

constituted a future risk of dangerousness, (2) that he had actually caused the 

death of Salinas or, if he did not actually cause her death, that he intended to 

kill her or another, or anticipated a loss of life, and (3) that there were 

insufficient mitigating circumstances to warrant a sentence of life 

imprisonment. In accordance with the verdict, the state trial court imposed a 

sentence of death.

B. POST-CONVICTION PROCEEDINGS

The Supreme Court summarized the post-conviction proceedings, which

are central to this COA application, as follows:

Eight days later the judge appointed new counsel to handle 

Trevino’s direct appeal. Seven months after sentencing, when the 

trial transcript first became available, that counsel filed an appeal.

The Texas Court of Criminal Appeals then considered and rejected 

Trevino’s appellate claims. Trevino’s appellate counsel did not 

claim that Trevino’s trial counsel had been constitutionally 

ineffective during the penalty phase of the trial court proceedings.

About six months after sentencing, the trial judge appointed 

Trevino a different new counsel to seek state collateral relief. As 

Texas’ procedural rules provide, that third counsel initiated 

collateral proceedings while Trevino’s appeal still was in progress. 

This new counsel first sought postconviction relief (through 

collateral review) in the trial court itself. After a hearing, the trial 

court denied relief; and the Texas Court of Criminal Appeals 

affirmed that denial. Trevino’s postconviction claims included a 

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claim that his trial counsel was constitutionally ineffective during 

the penalty phase of Trevino’s trial, but it did not include a claim 

that trial counsel’s ineffectiveness consisted in part of a failure 

adequately to investigate and to present mitigating circumstances 

during the penalty phase of Trevino’s trial. [See] Wiggins v. Smith,

539 U.S. 510, 523, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) 

(counsel’s failure to investigate and present mitigating 

circumstances deprived defendant of effective assistance of 

counsel).

Trevino then filed a petition in federal court seeking a writ of 

habeas corpus. The Federal District Court appointed another new 

counsel to represent him. And that counsel claimed for the first 

time that Trevino had not received constitutionally effective 

counsel during the penalty phase of his trial in part because of trial 

counsel’s failure to adequately investigate and present mitigating 

circumstances during the penalty phase. App. 438, 456–478. 

Federal habeas counsel pointed out that Trevino’s trial counsel 

had presented only one witness at the sentencing phase, namely 

Trevino’s aunt. The aunt had testified that Trevino had had a 

difficult upbringing, that his mother had an alcohol problem, that 

his family was on welfare, and that he had dropped out of high 

school. She had added that Trevino had a child, that he was good 

with children, and that he was not violent. Id., at 285–291.

Federal habeas counsel then told the federal court that Trevino’s 

trial counsel should have found and presented at the penalty phase 

other mitigating matters that his own investigation had brought 

to light. These included, among other things, that Trevino’s mother 

abused alcohol while she was pregnant with Trevino, that Trevino 

weighed only four pounds at birth, that throughout his life Trevino 

suffered the deleterious effects of Fetal Alcohol Syndrome, that as 

a child Trevino had suffered numerous head injuries without 

receiving adequate medical attention, that Trevino’s mother had 

abused him physically and emotionally, that from an early age 

Trevino was exposed to, and abused, alcohol and drugs, that 

Trevino had attended school irregularly and performed poorly, and 

that Trevino’s cognitive abilities were impaired. Id., at 66–67.

The federal court stayed proceedings to permit Trevino to raise 

this claim in state court. The state court held that because Trevino 

had not raised this claim during his initial postconviction 

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proceedings, he had procedurally defaulted the claim, id., at 27–

28; and the Federal District Court then denied Trevino’s 

ineffective-assistance-of-trial-counsel claim, id., at 78–79. The 

District Court concluded in relevant part that, despite the fact that 

“even the most minimal investigation . . . would have revealed a 

wealth of additional mitigating evidence,” an independent and 

adequate state ground (namely Trevino’s failure to raise the issue 

during his state postconviction proceeding) barred the federal 

habeas court from considering the ineffective-assistance-of-trialcounsel claim. Id., at 131–132. See Coleman v. Thompson, 501 U.S. 

722, 729–730, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).

Trevino appealed. The Fifth Circuit, without considering the 

merits of Trevino’s ineffective-assistance-of-trial-counsel claim, 

agreed with the District Court that an independent, adequate 

state ground, namely Trevino’s procedural default, barred its 

consideration. 449 Fed. Appx., at 426.3

In 2011, when the panel decided Trevino’s appeal, there was no 

applicable exception to the procedural default rule under any state habeas 

scheme. In 2012, however, the Supreme Court decided Martinez, which held 

that a federal habeas petitioner was not barred from asserting an ineffectiveassistance-of-trial-counsel claim if (1) the state habeas scheme (such as 

Arizona’s in Martinez) required a defendant convicted at trial to raise that 

claim during his first state habeas proceeding, and (2) defendant’s counsel 

during his initial state habeas proceeding was ineffective. Trevino filed a 

petition for a writ of certiorari, seeking a determination that the Martinez rule 

should also apply to the Texas habeas scheme. The Supreme Court explained

that although the Texas scheme did not require a defendant to raise an 

ineffective-assistance-of-trial-counsel claim in his first state habeas 

proceeding, the result should be the same:

[W]e believe that the Texas procedural system—as a matter of its 

structure, design, and operation—does not offer most defendants a 

 

3 Trevino, 133 S. Ct. at 1915-16 (emphasis in original).

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meaningful opportunity to present a claim of ineffective assistance 

of trial counsel on direct appeal. What the Arizona law prohibited 

by explicit terms, Texas law precludes as a matter of course. And, 

that being so, we can find no significant difference between this 

case and Martinez. The very factors that led this Court to create a 

narrow exception to Coleman in Martinez similarly argue for the 

application of that exception here.4

Thus, the Court applied the rule of Martinez to Texas’ scheme for postconviction relief, i.e.: “[A] procedural default will not bar a federal habeas court 

from hearing a substantial claim of ineffective assistance at trial if, in the 

initial-review collateral proceeding, there was no counsel or counsel in that 

proceeding was ineffective.”5 Accordingly, it remanded to the Fifth Circuit:

Given this holding, Texas submits that its courts should be 

permitted, in the first instance, to decide the merits of Trevino’s 

ineffective-assistance-of-trial-counsel claim. We leave that matter 

to be determined on remand. Likewise, we do not decide here 

whether Trevino’s claim of ineffective assistance of trial counsel is 

substantial or whether Trevino’s initial state habeas attorney was 

ineffective.

For these reasons we vacate the Fifth Circuit’s judgment and 

remand the case for further proceedings consistent with this 

opinion.6

We remanded to the district court as follows:

In light of the Supreme Court’s decision in Trevino v. Thaler, –––

U.S. ––––, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), we remand 

to the district court for full reconsideration of the Petitioner’s 

ineffective assistance of counsel claim in accordance with both 

Trevino and Martinez v. Ryan, –––U.S. ––––, 132 S. Ct. 1309, 182 

L. Ed. 2d 272 (2012). If the Petitioner requests it, the district court 

 

4 Id. at 1921.

5 Id. at 1921 (quoting Martinez, 132 S. Ct. at 1320).

6 Id.

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may in its discretion stay the federal proceeding and permit the 

Petitioner to present his claim in state court.7

C. DISTRICT COURT PROCEEDINGS ON REMAND

On remand, the district court, in April to July 2014, “granted Petitioner’s 

multiple requests for additional time to investigate and develop Petitioner’s 

remaining claims for relief and authorized Petitioner to expend resources in 

excess of the statutory cap set forth in 18 U.S.C. Section 3599(g) (2) for 

investigative and expert assistance.”8 On November 13, 2014, the district court 

held a status conference concerning pending motions,9 and it entered an order 

granting in part Trevino’s motions for additional time and for expert funding 

that same day, which reads, in part:

After hearing arguments from both parties, for the reasons 

discussed at length during the hearing, the parties are directed to 

file amended pleadings designed to clarify the issues remaining in 

this cause and Petitioner should be permitted to proceed with 

some, but not all, of the expert examination of Petitioner requested 

in the motion for expert assistance. Once the parties have clarified 

their positions and the issues are more focused, the Court will hold 

another hearing to ascertain how best to proceed with the 

remainder of this cause.10

On February 2, 2015, Trevino filed his second amended federal habeas 

petition, and the state filed its response on May 26, 2015.

On June 11, 2015, without holding a hearing or otherwise alerting the 

parties to its impending decision, the district court sua sponte issued its 36-

page memorandum opinion and order, based on the pleadings, denying all 

 

7 Trevino v. Stephens, 740 F.3d 378 (5th Cir. 2014). 8 Trevino v. Stephens, No. CIV. SA-01-CA-306-XR, 2015 WL 3651534, at *1 (W.D. Tex. 

June 11, 2015) (citations omitted).

9 See Minutes of Civil Proceedings, Docket Number SA-01-CA-306-XR, ECF Doc. 137 

(Nov. 13, 2014).

10 See Order Granting in Part Motion for Expert Funding and Setting New Filing 

Deadlines, Docket Number SA-01-CA-306-XR, ECF Doc. 138 (Nov. 13, 2014).

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relief under the second amended habeas petition and denying a COA.11 The 

court noted that it had rejected all five claims presented in Trevino’s first 

amended habeas petition on the merits and had alternatively held that two of 

them were procedurally defaulted, including the ineffective-assistance-of-trialcounsel claim now presented in his second amended petition.12 In its new order, 

it reasoned that Trevino failed to show cause for excusing his procedural 

default even under Martinez/Trevino, but even if he could overcome the 

procedural default, his claim would still be subject to dismissal on the merits 

because none of the “new” mitigating evidence referred to in the second 

amended petition changed the district court’s analysis set out in its earlier 

opinion, as discussed below.

1. MARTINEZ/TREVINO ISSUE

With respect to the Martinez/Trevino issue, the district court concluded 

that Trevino still had failed to overcome the procedural default bar. 

Specifically, it held that Trevino failed to sufficiently allege that his state 

habeas counsel was ineffective, on the ground that the evidence at issue was 

not available to the first state habeas counsel at the time.13 The court explained 

that none of the “new” mitigating evidence (including testimony from Trevino’s 

mother and evidence about his background and history) had been gathered by 

his state trial counsel.14 The district court reasoned that Trevino’s state habeas 

counsel 

cannot reasonably be faulted, much less declared “ineffective,” for 

failing to develop and present an ineffective assistance claim 

during Petitioner’s initial state habeas corpus proceeding 

premised upon “new” mitigating evidence absent some showing 

this “new” mitigating evidence was reasonably available to said 

 

11 2015 WL 3651534.

12 Id. at *2.

13 Id. at *5-6.

14 Id.

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counsel at the time of Petitioner’s initial state habeas corpus 

proceeding.15

On this basis, the district court held that Trevino had failed to show 

cause under Martinez/Trevino for his procedural default, and that his claim 

was still subject to dismissal on this ground alone. The district court also held 

that even if Trevino had overcome the procedural default bar, his claim should 

be dismissed on the merits.

2. MERITS OF THE CLAIM

On its merits determination, the district court relied extensively on its 

alternative holding in its 2009 opinion that the “new” mitigating evidence 

(concerning Trevino’s character, childhood abuse and neglect, alcohol and 

narcotics abuse, school performance, and possible FASD) could not outweigh 

the substantial aggravating evidence presented at trial.16 The district court 

listed some of the aggravating evidence, including Trevino’s “callous 

comments” following the murder of Salinas, his participation in the violent 

assault, and his gang membership, but the district court placed special 

emphasis on “the complete and total absence of any indication the Petitioner 

has ever expressed sincere contrition or genuine remorse over Salinas’

murder.”17 In the district court’s estimation, Trevino’s apparent lack of 

remorse seemed to be the primary piece of aggravating evidence:

The latter point cannot be over-emphasized. Salinas’ murder was 

particularly brutal and senseless. Yet Petitioner has consistently 

refused to acknowledge his role in her murder, even to his own trial 

 

15 Id. 16 Id. at *3-4 (quoting Trevino v. Thaler, 678 F. Supp. 2d at 471–72). The court also 

stated that “neither the Fifth Circuit nor the Supreme Court has rejected this Court’s legal 

conclusions or factual findings underlying its determination that Petitioner’s claims of 

ineffective assistance by his trial counsel asserted in his first amended petition lacked merit,” 

id., but it is more accurate to say that neither the Fifth Circuit nor the Supreme Court 

addressed the merits at all.

17 2015 WL 3651534 at *3-4.

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counsel, claiming instead to have been “too stoned” to remember 

exactly what happened that evening. Petitioner’s own affidavit, 

executed June 11, 2004, contains not even a scintilla of sincere 

contrition; instead Petitioner expresses hostility and blames his 

trial counsel for allegedly misrepresenting the terms of a proffered 

plea bargain for a life sentence without accepting any 

responsibility for his own rejection of the offer after it was 

accurately described to Petitioner.

Absent some indication the Petitioner has willingly accepted 

responsibility for his role in Salinas’ brutal rape and murder, the 

evidence showing Petitioner’s long history of alcohol and drug 

abuse, long history of criminal misconduct, and membership in 

violent street and prison gangs precludes this Court from finding 

this aspect of Petitioner’s ineffective assistance claims herein 

satisfies the prejudice prong of Strickland. There is simply no 

reasonable probability that, but for the failure of Petitioner’s trial 

counsel to present Petitioner’s capital sentencing jury with the 

additional, double-edged, mitigating evidence now before this 

Court, the outcome of the punishment phase of Petitioner’s capital 

trial would have been different.18

The district court concluded that the second amended petition did not 

change the balance because the “new” mitigating evidence was fundamentally 

the same “double-edged” evidence it had addressed in its earlier opinion.19 The 

district court summarized the “new” evidence as follows:

Petitioner asserts that trial counsel could have called various 

witnesses who would have offered supportive testimony (e.g., 

Janet Cruz, the mother of his two children; Mario Cantu, friend; 

Ruben Gonzalez, employer; Jennifer DeLeon, his sister).

One of the experts recently retained opines that Petitioner 

“presents with characteristics of Fetal Alcohol Affect”, and a “low 

average range of intellectual functioning.” She further opines that 

his “history of Fetal Alcohol Affect, along with his history of 

physical and emotional abuse” contributed to his “inability to make 

appropriate decisions.” She opines that this may also have 

 

18 Id. (quoting Trevino, 678 F. Supp. 2d at 471-72).

19 Id. at *4.

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contributed to Petitioner rejecting the plea offer made to him that 

would have spared him from the death sentence.

Another expert opines that based on his preliminary assessment, 

Petitioner suffers from “8 domains” of poor “cognitive functioning,”

(i.e., academics, verbal and visuospatial memory, visuospatial 

construction, processing speed, executive functioning, 

communication skills, daily living skills and socialization skills). 

This expert states that although his assessment is a “critical 

component in the FASD diagnostic process,” the diagnosis of FASD 

must be made by a medical doctor. According to this expert, yet 

unexamined is whether Petitioner’s “FASD has resulted in an 

organic brain disorder.” In summary, Petitioner argues that, had 

the “jury been able to consider [Petitioner’s] mixed up and 

unexplainable turbulent and chaotic life history on the mitigating 

side of the scale, there is unquestionably a reasonable probability 

that at least one juror would have struck a different balance.”20

The expert “recently retained” was Dr. Rebecca A. Dyer, Ph.D., of 

Forensic Associates of San Antonio, whose 18-page report dated May 6, 2004, 

was attached to Trevino’s earlier habeas petition that was the subject of the 

district court’s 2009 opinion, and was again attached to his second amended 

habeas petition.21

The district court correctly set out the standards for uncalled witnesses 

and uninvestigated facts as follows:

“To prevail on an ineffective assistance claim based upon uncalled 

witnesses, an applicant must name the witness, demonstrate that 

the witness would have testified, set out the content of the 

witness’s proposed testimony, and show that the testimony would 

have been favorable.” Gregory v. Thaler, 601 F.3d 347, 352 (5th 

Cir.), cert. denied, 562 U.S. 911, 131 S. Ct. 265, 178 L. Ed. 2d 175 

(2010). “An applicant ‘who alleges a failure to investigate on the 

part of his counsel must allege with specificity what the 

 

20 Id. at *7-8 (footnotes omitted).

21 2015 WL 3651534 at *8 n.12.

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investigation would have revealed and how it would have altered 

the outcome of the trial.’” Id.22

Applying these standards, the district court addressed two distinct 

categories of proposed evidence: (1) character witness testimony and (2) 

evidence pertaining to Trevino’s possible FASD.23 The district court explained 

that although the character witness testimony did contain some mitigating 

evidence, it contained a great deal of aggravating evidence as well, which 

would serve to bolster the prosecution’s case.24 Among the aggravating 

evidence was testimony that Trevino was “always high” from sniffing spray 

paint, that he was abusive to the mother of one of his children and had two 

sides to his personality, that he was “always jealous,” “angry,” “violent,” and 

“impulsive” even when he was not drunk, and that he always had a gun.25

Thus, the district court concluded that the “new” character witness testimony 

was “double-edged” and, if introduced, could not have affected the outcome.

Next, the district court found that the FASD evidence was also “doubleedged,” though the court’s language suggested that the FASD evidence may be 

more mitigating than aggravating:

Finally, this Court has previously noted the double-edged nature 

of a diagnosis of Fetal Alcohol Syndrome or Fetal Alcohol Effects. 

This Court has also noted that a diagnosis of Fetal Alcohol 

Syndrome or Fetal Alcohol Effects or Fetal Alcohol Spectrum 

Disorder was not within the mainstream of psychological diagnosis 

and treatment at the time of Petitioner’s 1997 capital murder trial.

In sum, the “new” evidence presented by Petitioner, while 

admittedly containing some mitigating aspects (particularly those 

concerning Petitioner’s mother’s alcoholism and the likelihood 

Petitioner suffers from Fetal Alcohol Spectrum Disorder), also 

 

22 Id. at *7.

23 Id. at *9-10.

24 Id. 25 Id.

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contains a plethora of information which would have assisted the 

prosecution in obtaining an affirmative answer to the Texas 

capital sentencing scheme’s future dangerousness special issue.26

After characterizing all of the proposed “new” evidence as “doubleedged,” the district court turned to the question of whether Trevino’s trial 

counsel rendered ineffective assistance, setting out the same standards we will 

apply here:

To establish ineffective assistance of counsel, a petitioner must 

show that counsel’s representation fell below an objective standard 

of reasonableness, and to establish prejudice he must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different. Williams v. Taylor, 529 U.S. 362, 390–91, 120 S. Ct.

1495, 146 L. Ed. 2d 389 (2000) (citing Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

A few highlights from Strickland should be noted. “Counsel also 

has a duty to bring to bear such skill and knowledge as will render 

the trial a reliable adversarial testing process.” Strickland, 466 

U.S. at 688. “Prevailing norms of practice as reflected in American 

Bar Association standards” are mere guides. Id.27

The district court concluded that Trevino had failed to satisfy either the 

performance or prejudice prong of Strickland. On the performance prong, the 

district court essentially concluded that the evidence simply was not available 

to his trial counsel at the time of his trial and therefore counsel’s failure to 

investigate it could not constitute deficient performance.28 The district court 

stated that “trial counsel was not wholly inattentive to developing mitigating 

 

26 Id. at *10 (footnotes omitted) (citing Sells v. Thaler, 2012 WL 2562666, *58 (W.D.

Tex. June 28, 2012), COA denied, 536 F. App’x 483 (5th Cir. July 22, 2013), cert. denied, –––

U.S. ––––, 134 S. Ct. 1786, 188 L. Ed. 2d 612 (2014) (“[P]ursuit of a defense at the punishment 

phase of petitioner’s trial premised upon petitioner suffering from fetal alcohol syndrome or 

fetal alcohol effects would have amounted to an admission by petitioner’s trial counsel that 

petitioner would, in fact, pose a substantial risk of future violent conduct.”)).

27 2015 WL 3651534 at *10-11.

28 Id. at *12.

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evidence,” in that he interviewed Trevino’s stepfather, and Trevino “failed to 

assist his trial counsel in identifying any family members or others who may 

have provided mitigating testimony.”29

With respect to the evidence of Trevino’s mother’s alcohol abuse during 

pregnancy, the court noted that Trevino’s mother did not provide a sworn 

statement until 2004 and did not state that she would have been available to 

testify at the 1997 trial.30 “Accordingly, it is difficult to understand how trial 

counsel could reasonably be blamed for not locating Ms. Trevino prior to 

Petitioner’s 1997 capital murder trial and presenting potentially mitigating 

evidence from this witness.”31 The court also found that the FASD claim should 

be denied primarily on the performance prong because Trevino failed to show 

that the evidence was available at the time of trial.32 In sum, the district court 

found that there was no evidence that Trevino’s state trial counsel knew or 

should have known about additional character witnesses or about the factual

basis for a possible FASD claim.

On the second prong of Strickland, the district court concluded that, even 

if Trevino could show that his trial counsel’s performance fell below an 

objectively reasonable standard, that failure did not result in prejudice. Again, 

the district court set out the correct legal standards, which are also applicable 

to this COA application, but the district court focused primarily on the 

character witness testimony:

In evaluating prejudice in the context of the punishment phase of 

a capital trial, a federal habeas court must re-weigh all the 

evidence in aggravation against the totality of available mitigating 

evidence (had the Petitioner’s trial counsel chosen a different 

course). Wong v. Belmontes, 558 U.S. 15, 20, 130 S. Ct. 383, 175 L. 

 

29 Id. 30 Id. 31 Id. 32 Id. at *13.

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Ed. 2d 328 (2009); Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct.

2527, 156 L. Ed. 2d 471 (2003). Strickland does not require the 

State to “rule out” or negate a sentence of life in prison to prevail; 

rather, it places the burden on the defendant to show a “reasonable 

probability” that the result of the punishment phase of a capital 

murder trial would have been different. Wong v. Belmontes, 558 

U.S. at 27. The prejudice inquiry under Strickland requires 

evaluating whether there is a “reasonable probability that, but for 

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

have been different.” Strickland, 466 U.S. at 694. “The likelihood 

of a different result must be substantial, not just conceivable.”

Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012) (citing 

Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d

624 (2011)), cert. denied, ––– U.S. ––––, 133 S. Ct. 1244, 185 L. Ed. 

2d 190 (2013).

Federal habeas corpus petitioners asserting claims of ineffective 

assistance based on counsel’s failure to call a witness satisfy the 

prejudice prong of the Strickland analysis only by naming the 

witness, demonstrating the witness was available to testify and 

would have done so, setting out the content of the witness’

proposed testimony, and showing the testimony would have been 

favorable to a particular defense. Woodfox v. Cain, 609 F.3d 774, 

808 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.

2009).33

The district court found it sufficient that Trevino’s trial counsel 

presented the testimony of his aunt, “albeit in a cursory fashion,” to explain 

“the facts that Petitioner’s mother was an alcoholic and Petitioner’s family 

lived on welfare in public housing.”34 The court concluded that the proposed 

“new” character witness testimony could not have changed the result because, 

“in addition to noting that Petitioner was raised in a very troubled household 

and neighborhood, and that he was kind and caring at times, these individuals 

also have described Petitioner as a man quickly prone to angry and violent 

 

33 2015 WL 3651534 at *12-13. 34 Id. at *13.

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outbursts.”35 In the district court’s view, the character witness testimony is 

only weakly mitigating and contains highly aggravating evidence, so there is 

no reason to believe it would serve any meaningful mitigation purpose.

In summing up its conclusion that the “new” evidence could not have 

changed the outcome (i.e., the failure to introduce it was not prejudicial under 

Strickland), the district court focused on the heinous nature of the crime, the 

fact that there was a great deal of aggravating evidence, and the fact that the 

proposed character witness testimony contained additional aggravating 

evidence in addition to fairly inconsequential mitigating evidence.36 In short, 

it concluded that the “new” mitigating evidence simply could not outweigh the 

aggravating evidence because it was “double-edged,” placing greater emphasis 

on the character witness testimony. Because the district court concluded that 

Trevino failed to satisfy either prong of Strickland, it denied relief on the 

merits.

3. DENIAL OF EVIDENTIARY HEARING

The district court did not hold an evidentiary hearing because it found 

Trevino “has failed to allege specific facts which, if proven, would entitle 

Petitioner to federal habeas corpus relief in this cause.”37 Because it based its 

decision on the pleadings, an evidentiary hearing could not affect the outcome.

4. DENIAL OF COA

Based on all the above, the district court denied all relief under the 

second amended petition. It also denied a COA. Although it noted that “[i]n 

death penalty cases, any doubt as to whether a CoA should issue must be 

resolved in the petitioner’s favor,” it concluded there was no such doubt here, 

 

35 Id. 36 Id. at *14.

37 2015 WL 3651534 at *15.

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at least with respect to the Martinez/Trevino procedural default issue (i.e., 

whether Trevino sufficiently alleged that his state habeas counsel rendered 

ineffective assistance for failing to raise the ineffective-assistance-of-trialcounsel claim) and the prejudice prong of Strickland. 38

II. APPLICABLE LAW

Before turning to the particular claims asserted by Trevino, we first 

address the applicable law; the framework for Strickland claims generally and 

the Wiggins inadequate investigation claim at issue here; and the law 

concerning “double-edged” evidence.

A. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction in this application for a COA from the district 

court’s denial of habeas relief under 28 U.S.C. § 2254 pursuant to 28 U.S.C. §§ 

1291 and 2253(c)(1)(B). As we set out in our 2011 opinion, the standard of 

review under AEDPA is usually highly deferential.39 AEDPA deference does 

not apply here, however, because the district court was not reviewing a state 

court decision on the merits of Trevino’s claim but rather addressing the merits

for the first time.40 Thus, AEDPA’s deferential standard of review does not 

apply, and we review the merits de novo.41

Under § 2254(b)(2), “An application for a writ of habeas corpus may be 

denied on the merits, notwithstanding the failure of the applicant to exhaust 

the remedies available in the courts of the State.” Because Trevino’s claim may 

be dismissed on either procedural default grounds or on the merits, he must 

 

38 Id. at *16 (citing Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, 558 

U.S. 993, 130 S. Ct. 536, 175 L. Ed. 2d 350 (2009); Bridgers v. Dretke, 431 F.3d 853, 861 (5th 

Cir. 2005), cert. denied, 548 U.S. 909, 126 S. Ct. 2961, 165 L. Ed. 2d 959 (2006)).

39 Trevino, 133 S. Ct. at 1921 (quoting Martinez, 132 S. Ct., at 1320).

40 See, e.g., Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009); Mercadel v. Cain, 179 

F.3d 271, 275 (5th Cir. 1999).

41 Id.

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demonstrate that reasonable jurists would debate the correctness of the 

district court’s dismissal on both grounds.

B. STRICKLAND AND WIGGINS

Strickland analysis is, of course, central to this COA application, 

especially as applied in Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 

156 L. Ed. 2d 471 (2003). Because Wiggins demonstrates the basis for Trevino’s 

entire claim, we examine the case in some detail.42

The petitioner, Wiggins, was convicted in August 1989, after a four-day 

jury trial, for a murder he committed in 1988. Prior to sentencing, his trial 

counsel moved for bifurcation of sentencing into two phases: in the first, 

counsel proposed to prove that Wiggins did not act as the principal in the 

murder, and in the second, they intended to present mitigating evidence. 

Counsel argued that bifurcation would prevent mitigation evidence from 

undercutting their argument that Wiggins was not primarily responsible for 

the murder. The trial judge denied the motion, and sentencing commenced in 

a single phase.

On October 12, the court denied the bifurcation motion, and 

sentencing proceedings commenced immediately thereafter. In her 

opening statement, Nethercott told the jurors they would hear 

evidence suggesting that someone other than Wiggins actually 

killed Lacs. Counsel then explained that the judge would instruct 

them to weigh Wiggins’ clean record as a factor against a death 

sentence. She concluded: “‘You’re going to hear that Kevin Wiggins 

has had a difficult life. It has not been easy for him. But he’s 

worked. He’s tried to be a productive citizen, and he’s reached the 

age of 27 with no convictions for prior crimes of violence and no 

convictions, period. . . . I think that’s an important thing for you to 

consider.’” During the proceedings themselves, however, counsel 

introduced no evidence of Wiggins’ life history.

 

42 The facts in this section all come from Wiggins, with citations provided only for 

quotations.

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Before closing arguments, Schlaich made a proffer to the court, 

outside the presence of the jury, to preserve bifurcation as an issue 

for appeal. He detailed the mitigation case counsel would have 

presented had the court granted their bifurcation motion. He 

explained that they would have introduced psychological reports 

and expert testimony demonstrating Wiggins’ limited intellectual 

capacities and childlike emotional state on the one hand, and the 

absence of aggressive patterns in his behavior, his capacity for 

empathy, and his desire to function in the world on the other. At 

no point did Schlaich proffer any evidence of petitioner’s life 

history or family background.43

The jury returned a sentence of death.

In 1993, Wiggins sought state habeas relief, “arguing that his attorneys 

had rendered constitutionally defective assistance by failing to investigate and 

present mitigating evidence of his dysfunctional background.”44 In support, he 

submitted testimony by a licensed social worker who had prepared an 

extensive social history report detailing severe physical and sexual abuse by 

his own father and mother as well as various foster parents. During these 

proceedings, one of Wiggins’ trial attorneys testified that he did not recall 

retaining a forensic social worker to prepare a social history, even though the 

State of Maryland made funds available for that purpose, and he testified that 

the trial team had, “well in advance of trial, decided to focus their efforts on 

‘retry[ing] the factual case’ and disputing Wiggins’ direct responsibility for the 

murder.”45

The state habeas courts denied relief on the ground that the decision not 

to investigate was “a matter of trial tactics” and therefore did not constitute 

deficient performance under Strickland. The state appellate court focused on 

the fact that trial counsel knew at least the general contours of Wiggins’ 

 

43 539 U.S. at 515-16 (citations omitted).

44 Id. at 516.

45 Id. at 517.

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childhood, and that at least one mitigating factor, Wiggins’ lack of prior 

convictions, was presented to the jury.

Wiggins filed a habeas petition in federal court, arguing that the state 

habeas courts’ rejection of his ineffective-assistance-of-trial-counsel claim was 

based on an unreasonable application of clearly established federal law. The 

federal district court agreed, concluding that trial counsel’s decision not to 

investigate Wiggins’ social history further could only be reasonable if it was 

“based upon information the attorney has made after conducting a reasonable 

investigation.”46 Reviewing de novo, the Fourth Circuit reversed. The Supreme 

Court granted certiorari and reversed the Fourth Circuit.

After setting out the Strickland standards and emphasizing the “heavy 

measure of deference” accorded to the judgments of trial counsel, the Supreme 

Court explained the limits of that deference:

Our opinion in Williams v. Taylor is illustrative of the proper 

application of these standards. In finding Williams’ ineffectiveness 

claim meritorious, we applied Strickland and concluded that 

counsel’s failure to uncover and present voluminous mitigating 

evidence at sentencing could not be justified as a tactical decision 

to focus on Williams’ voluntary confessions, because counsel had 

not “fulfill[ed] their obligation to conduct a thorough investigation 

of the defendant’s background.” 529 U.S., at 396, 120 S. Ct. 1495 

(citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, 

p. 4-55 (2d ed.1980)). While Williams had not yet been decided at 

the time the Maryland Court of Appeals rendered the decision at 

issue in this case, cf. post, at 2546 (SCALIA, J., dissenting), 

Williams’ case was before us on habeas review. Contrary to the 

dissent’s contention, ibid., we therefore made no new law in 

resolving Williams’ ineffectiveness claim. See Williams, 529 U.S., 

at 390, 120 S. Ct. 1495 (noting that the merits of Williams’ claim 

“are squarely governed by our holding in Strickland”); see also id.,

at 395, 120 S. Ct. 1495 (noting that the trial court correctly applied 

both components of the Strickland standard to petitioner’s claim 

and proceeding to discuss counsel’s failure to investigate as a 

 

46 Id. at 519 (quoting Wiggins v. Corcoran, 164 F. Supp. 2d 538, 558 (D. Md. 2001)).

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violation of Strickland’s performance prong). In highlighting 

counsel’s duty to investigate, and in referring to the ABA 

Standards for Criminal Justice as guides, we applied the same 

“clearly established” precedent of Strickland we apply today. Cf. 

466 U.S., at 690-691, 104 S. Ct. 2052 (establishing that “thorough 

investigation[s]” are “virtually unchallengeable” and underscoring 

that “counsel has a duty to make reasonable investigations”); see 

also id., at 688-689, 104 S. Ct. 2052 (“Prevailing norms of practice 

as reflected in American Bar Association standards and the like 

. . . are guides to determining what is reasonable”).

In light of these standards, our principal concern in deciding 

whether Schlaich and Nethercott exercised “reasonable 

professional judgmen[t],” id., at 691, 104 S. Ct. 2052, is not 

whether counsel should have presented a mitigation case. Rather, 

we focus on whether the investigation supporting counsel’s 

decision not to introduce mitigating evidence of Wiggins’

background was itself reasonable. Ibid. Cf. Williams v. Taylor, 

supra, at 415, 120 S. Ct. 1495 (O’CONNOR, J., concurring) (noting 

counsel’s duty to conduct the “requisite, diligent” investigation into 

his client’s background). In assessing counsel’s investigation, we 

must conduct an objective review of their performance, measured 

for “reasonableness under prevailing professional norms,”

Strickland, 466 U.S., at 688, 104 S. Ct. 2052, which includes a 

context-dependent consideration of the challenged conduct as seen 

“from counsel’s perspective at the time,” id., at 689, 104 S. Ct. 2052 

(“[E]very effort [must] be made to eliminate the distorting effects 

of hindsight”).47

The Court noted that trial counsel drew its mitigation case from three 

sources: an IQ test conducted by a psychologist, which revealed Wiggins had 

an IQ of 79; a presentence investigation report (“PSI”), which included a brief 

summary of his miserable personal history; and records kept by the Baltimore 

City Department of Social Services (“DSS”), which showed his various 

placements in the foster care system. They did not, however, develop any 

further social history, despite the availability of funds for that purpose.

 

47 Id. at 522-23 (emphasis in original).

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The Court held that this constituted constitutionally deficient 

investigation in light of not only Maryland’s standards but ABA Guidelines in 

place prior to his sentencing, including the admonition that “investigations 

into mitigating evidence ‘should comprise efforts to discover all reasonably 

available mitigating evidence and evidence to rebut any aggravating evidence 

that may be introduced by the prosecutor.’”48

Despite these well-defined norms, however, counsel abandoned 

their investigation of petitioner’s background after having 

acquired only rudimentary knowledge of his history from a narrow 

set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics 

counsel should consider presenting are medical history, 

educational history, employment and training history, family and 

social history, prior adult and juvenile correctional experience, and 

religious and cultural influences (emphasis added)); 1 ABA 

Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.

1982) (“The lawyer also has a substantial and important role to 

perform in raising mitigating factors both to the prosecutor 

initially and to the court at sentencing . . . . Investigation is 

essential to fulfillment of these functions”).49

Moreover, the Court found that “the investigation was also unreasonable 

in light of what counsel actually discovered in the DSS records,” including the 

fact that Wiggins’ mother was an alcoholic, that he had spent time in different 

foster homes, that he displayed emotional difficulties, that he was frequently 

absent from school, and that he was left without food for days at a time.50

As the Federal District Court emphasized, any reasonably 

competent attorney would have realized that pursuing these leads 

was necessary to making an informed choice among possible 

defenses, particularly given the apparent absence of any 

aggravating factors in petitioner’s background. 164 F.Supp.2d, at 

559. Indeed, counsel uncovered no evidence in their investigation 

 

48 539 U.S. at 524 (quoting ABA Guidelines for the Appointment and Performance of 

Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added in Wiggins)). 49 Id. at 524-25.

50 Id. at 525.

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to suggest that a mitigation case, in its own right, would have been 

counterproductive, or that further investigation would have been 

fruitless; this case is therefore distinguishable from our precedents 

in which we have found limited investigations into mitigating 

evidence to be reasonable. See, e.g., Strickland, supra, at 699, 104 

S. Ct. 2052 (concluding that counsel could “reasonably surmise . . . 

that character and psychological evidence would be of little help”);

Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d

638 (1987) (concluding counsel’s limited investigation was 

reasonable because he interviewed all witnesses brought to his 

attention, discovering little that was helpful and much that was 

harmful); Darden v. Wainwright, 477 U.S. 168, 186, 106 S. Ct.

2464, 91 L. Ed. 2d 144 (1986) (concluding that counsel engaged in 

extensive preparation and that the decision to present a mitigation 

case would have resulted in the jury hearing evidence that 

petitioner had been convicted of violent crimes and spent much of 

his life in jail). Had counsel investigated further, they might well 

have discovered the sexual abuse later revealed during state 

postconviction proceedings.51

In sum, the Court concluded that Wiggins’ trial counsel’s investigation 

was constitutionally inadequate under the performance prong of Strickland:

In finding that Schlaich and Nethercott’s investigation did not 

meet Strickland’s performance standards, we emphasize that 

Strickland does not require counsel to investigate every 

conceivable line of mitigating evidence no matter how unlikely the 

effort would be to assist the defendant at sentencing. Nor does 

Strickland require defense counsel to present mitigating evidence 

at sentencing in every case. Both conclusions would interfere with 

the “constitutionally protected independence of counsel” at the 

heart of Strickland, 466 U.S., at 689, 104 S. Ct. 2052. We base our 

conclusion on the much more limited principle that “strategic 

choices made after less than complete investigation are 

reasonable” only to the extent that “reasonable professional 

judgments support the limitations on investigation.” Id., at 690-

691, 104 S. Ct. 2052. A decision not to investigate thus “must be 

 

51 Id.

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directly assessed for reasonableness in all the circumstances.” Id.,

at 691, 104 S. Ct. 2052.52

The Court then turned to the prejudice prong of Strickland:

In order for counsel’s inadequate performance to constitute a Sixth 

Amendment violation, petitioner must show that counsel’s failures 

prejudiced his defense. Strickland, 466 U.S., at 692, 104 S. Ct.

2052. In Strickland, we made clear that, to establish prejudice, a 

“defendant must show that there is a reasonable probability that, 

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

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.,

at 694, 104 S. Ct. 2052. In assessing prejudice, we reweigh the 

evidence in aggravation against the totality of available mitigating 

evidence.53

The Court concluded that the failure to investigate and discover the 

“powerful” mitigation evidence was indeed prejudicial, in that it showed a 

history of severe abuse, starting with his “alcoholic, absentee mother” and 

continuing through an unbroken series of extreme hardships.54 In the Court’s 

words, Wiggins “thus has the kind of troubled history we have declared 

relevant to assessing a defendant’s moral culpability.”55

Given both the nature and the extent of the abuse petitioner 

suffered, we find there to be a reasonable probability that a 

competent attorney, aware of this history, would have introduced 

it at sentencing in an admissible form. While it may well have been 

strategically defensible upon a reasonably thorough investigation 

to focus on Wiggins’ direct responsibility for the murder, the two 

sentencing strategies are not necessarily mutually exclusive. 

Moreover, given the strength of the available evidence, a 

reasonable attorney might well have chosen to prioritize the 

mitigation case over the direct responsibility challenge, 

 

52 Id. at 533.

53 Id. at 534.

54 Id. at 534-35.

55 Id. at 535 (citing Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 

2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); 

Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)).

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particularly given that Wiggins’ history contained little of the 

double edge we have found to justify limited investigations in other 

cases. Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d

638 (1987); Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 

91 L. Ed. 2d 144 (1986).56

Accordingly, the Supreme Court held that the mitigating evidence, 

considered as a whole, could have resulted in a different sentence, and it 

reversed and remanded.

C. “DOUBLE-EDGED” EVIDENCE

The district court focused on the fact that Wiggins does not necessarily 

apply when the proposed “new” evidence is “double-edged,” as Wiggins itself 

explained. Therefore, the two cases the Supreme Court cited in Wiggins for 

such evidence, Burger and Darden, are worth examining briefly.

In Burger, the petitioner’s trial counsel was aware of some, but not all, 

of his troubled family history, including his “unhappy and unstable childhood,” 

one of his stepfathers getting him involved in marijuana and alcohol, his 

running away from home and being placed in a juvenile detention home, and 

similar facts.57 During his investigation, trial counsel had talked to the 

petitioner’s mother, an old friend of the petitioner’s, a psychologist counsel had 

employed to examine him prior to trial, and others, before deciding not to 

present evidence of his childhood.58 Counsel also decided not to have the 

petitioner testify on the ground that he showed no remorse and might actually 

brag about the crime on the witness stand.59

The petitioner argued that his attorney should have conducted more of 

an investigation, but the Court concluded that the proposed “new” testimony 

 

56 539 U.S. at 535 (emphasis added).

57 Burger, 483 U.S. at 789-90.

58 Id. at 790-91.

59 Id. at 791-92.

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could not have helped. The proposed testimony contained only meager 

mitigation evidence and a substantial amount of aggravating evidence, 

including the fact that he had spent time in juvenile detention, which had not 

been disclosed at trial, and that he had violent tendencies and seemed to have 

a split personality that resulted in unpredictable angry outbursts.60 As the 

Court noted, “Even apart from their references to damaging facts, the papers 

are by no means uniformly helpful to petitioner because they suggest violent 

tendencies that are at odds with the defense’s strategy of portraying 

petitioner’s actions on the night of the murder as the result of Stevens’ strong 

influence upon his will.”61

In short, the petitioner’s trial counsel in Burger had conducted a fairly 

extensive investigation into mitigation evidence and had made considered 

judgments in choosing not to present some seemingly mitigating evidence. The 

evidence trial counsel failed to discover through his investigation contained a 

great deal of aggravating evidence and therefore its absence could not have 

prejudiced him.

In Darden, the petitioner argued that he had received ineffective 

assistance of trial counsel on the ground that his attorney spent insufficient 

time preparing the mitigation case and had opted to “rely on a simple plea for 

mercy from petitioner himself.”62 The Court found that his trial counsel had 

spent hundreds of hours preparing his case, including mitigation. The problem 

was that there simply was no mitigating evidence that would not have 

permitted the state to bring in even stronger aggravating evidence to rebut it.63

Any argument that he was nonviolent would have allowed the state to bring in 

 

60 Id. at 793-95.

61 Id. at 793.

62 Darden, 477 U.S. at 186.

63 Id.

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evidence of his prior convictions, which had not previously been admitted in 

evidence, and any argument that he was incapable of committing the crimes 

would have allowed the state to introduce a psychiatric report indicating he 

very well could have based on his “sociopathic type of personality,” among other 

damaging rebuttal evidence.64 Accordingly, the Court concluded that the trial 

counsel’s decision to rely on a simple plea of mercy, following the investigation 

and consideration of potentially mitigating evidence, constituted a defensible 

trial strategy under Strickland.65

III. ANALYSIS

A. MARTINEZ/TREVINO ISSUE

Trevino argues (1) that he is entitled to an evidentiary hearing on the 

Martinez/Trevino issue, and (2) that he properly established cause for his 

procedural default under the Supreme Court’s Martinez/Trevino rule. Based 

on his pleadings alone, we conclude he has at least alleged sufficient cause, so 

we need not address his evidentiary hearing argument. As noted above, the 

Supreme Court in Trevino stated, “[A] procedural default will not bar a federal 

habeas court from hearing a substantial claim of ineffective assistance at trial 

if, in the initial-review collateral proceeding, there was no counsel or counsel 

in that proceeding was ineffective.”66 The district court, citing standards for 

appellate counsel, found that Trevino failed to show that his state habeas 

counsel was ineffective because he failed to show that the proposed “new” 

evidence was even available at the time.

Martinez suggests that a similar standard should apply to both state 

trial counsel and state habeas counsel. There, the Supreme Court explained 

 

64 Id. at 186-87.

65 Id. 66 133 S Ct. at 1921 (quoting Martinez, 132 S. Ct. at 1320).

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that the purpose of the exception is to recognize that the initial state habeas 

proceeding is virtually the same as a direct appeal for some purposes:

Where, as here, the initial-review collateral proceeding is the first 

designated proceeding for a prisoner to raise a claim of ineffective 

assistance at trial, the collateral proceeding is in many ways the 

equivalent of a prisoner’s direct appeal as to the ineffectiveassistance claim. This is because the state habeas court “looks to 

the merits of the clai[m]” of ineffective assistance, no other court 

has addressed the claim, and “defendants pursuing first-tier 

review . . . are generally ill equipped to represent themselves”

because they do not have a brief from counsel or an opinion of the 

court addressing their claim of error.67

Here, the crux of Trevino’s claim is not that his trial counsel made an 

informed decision not to present certain evidence following a constitutionally 

sufficient investigation, but that his trial counsel failed to conduct such an

investigation in the first place. Trevino argues that the state trial counsel’s 

failure to investigate would have been obvious to his state habeas counsel as 

well. Thus, he argues that his state habeas counsel’s failure to investigate the 

possibility of a Wiggins claim constitutes ineffective assistance, satisfying 

Martinez/Trevino.

Trevino’s second amended petition’s section titled “Petitioner’s State 

Habeas Counsel was Ineffective” is mostly devoted to the many failings of his 

state trial counsel, but it also squarely addresses his state habeas counsel’s 

alleged ineffective assistance:

Failing to raise such a claim after investigation, and making a 

thoroughly informed decision that there was no merit in raising 

that issue for review was an option to Attorney Rodriguez. Never 

investigating the possibility or merits of such a claim was not.

AS [sic] thoroughly demonstrated in the foregoing sections of this 

petition, there was an immense amount of material not included 

in the record indicating that trial counsel had indeed been 

 

67 Martinez, 132 S. Ct. at 1317.

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ineffective at the punishment phase of trial. State habeas counsel 

had a duty and obligation to undertake an investigation to at least 

determine whether such a claim was a viable one. Had such an 

investigation been undertaken, the magnitude of the error would 

have become evident. At that time, there was simply no scenario 

in which state habeas counsel’s actions and performance could be 

considered effective representation of any client - especially one 

sentenced to death who was relying on state habeas counsel for his 

one and only possible opportunity in existence at that time. 

State habeas counsel was undoubtedly ineffective in his failure to 

raise a claim that Petitioner’s trial counsel was ineffective at the 

punishment phase of Petitioner’s trial.68

Trevino essentially argues that the facially deficient investigation by the 

state trial counsel should have put his state habeas counsel on notice to 

investigate a claim for failure to investigate. The district court’s approach, on 

the other hand, suggests that Trevino’s state habeas counsel could not have 

rendered ineffective assistance for failing to assert a claim based on his trial 

counsel’s failure to investigate because there was no record evidence of what

mitigating evidence his trial counsel failed to discover.

We conclude Trevino has the better argument here. If state habeas 

counsel is not subject to the same Strickland requirement to perform some 

minimum investigation prior to bringing the initial state habeas petition, the 

Martinez/Trevino rule would have limited utility (if any) in addressing Wiggins

claims. There is a serious danger, under the district court’s reasoning, that a 

state trial counsel’s failure to investigate (and put into the record) mitigation 

evidence could insulate state habeas counsel from an ineffective assistance 

claim simply because the evidence was missing. That would only compound the 

problem with state trial counsel’s failure to conduct a reasonable investigation 

 

68 Second Amended Petition, Docket Number SA-01-CA-306-XR, ECF Doc. 143 at 52.

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in the first place, and Wiggins claims for deficient investigation might be 

effectively unreviewable under Martinez/Trevino.

In this case, Trevino’s state trial counsel presented only one mitigation 

witness and no other evidence during the punishment phase. The deficiency 

in that investigation would have been evident to any reasonably competent 

habeas attorney. Thus, we conclude that reasonable jurists not only could 

debate the correctness of the district court’s conclusion on the Martinez/Trevino

issue, but would agree that the district court reached the wrong conclusion. 

Trevino at least sufficiently pleaded that his state habeas counsel was 

ineffective so as to excuse his procedural default in failing to raise the 

ineffective-assistance-of-trial-counsel failure-to-investigate claim earlier.

B. WIGGINS CLAIM— STRICKLAND PERFORMANCE PRONG

Turning to the merits of Trevino’s ineffective-assistance-of-trial-counsel 

claim under Wiggins, we must determine whether Trevino satisfied both 

prongs of Strickland. First, we must determine whether Trevino’s trial 

counsel’s performance was deficient.

To demonstrate deficient performance, “the defendant must show 

that counsel’s representation fell below an objective standard of 

reasonableness” as measured by “prevailing professional norms.”

Our scrutiny of counsel’s performance is highly deferential. We 

“must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance; that 

is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action ‘might be considered sound 

trial strategy.’” To overcome this presumption, “[a] convicted 

defendant making a claim of ineffective assistance must identify 

the acts or omissions of counsel that are alleged not to have been 

the result of reasonable professional judgment.” Of central 

importance here, “choices made after less than complete 

investigation are reasonable [only] to the extent that reasonable 

professional judgments support the limitations on investigation.”

Factors affecting whether it is reasonable not to investigate 

include whether counsel has “reason to believe that pursuing 

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certain investigations would be fruitless or even harmful,”

resource constraints, and whether the information that might be 

discovered would be of only collateral significance.69

As set out above, the district court held that Trevino had failed to allege 

facts showing that the performance of his trial counsel was deficient and 

instead concluded that Trevino’s “trial counsel was not wholly inattentive to 

developing mitigating evidence,” in that he interviewed Trevino’s stepfather, 

and Trevino “failed to assist his trial counsel in identifying any family 

members or others who may have provided mitigating testimony.”70 Moreover, 

the court emphasized that because Trevino’s mother drank heavily during the 

time of trial in 1997, Trevino’s trial counsel could not be blamed for failing to 

locate her or discover evidence pertaining to FASD.71

Reasonable jurists could debate the correctness of the district court’s 

determination that Trevino failed to plead that his trial counsel conducted a 

constitutionally deficient investigation into mitigation evidence. The record 

shows that Trevino’s trial counsel only put forward one mitigation witness, 

Trevino’s aunt, and that he interviewed her briefly only on the day of her 

testimony. As Trevino argued in his COA application:

The relevant legal question is not whether counsel were “wholly 

inattentive” to developing mitigation evidence. Nor is it whether 

counsel’s client meaningfully assisted in the mitigation 

investigation. Nor is it whether one particular witness was easily 

locatable. Nor is it whether counsel successfully managed to 

investigate so little so as to remain completely ignorant about 

significant aspects of their client’s background. It is significant to 

note here that the one witness the trial counsel did present, 

Appellant’s aunt Juanita DeLeon, testified that Appellant’s 

mother could not be present to testify because she “had alcohol 

problems” and lived “in Elgin [Texas].” Clearly, Ms. DeLeon had 

 

69 Coleman, 716 F.3d at 903-04 (footnotes to Strickland omitted).

70 2015 WL 3651534 at *12.

71 Id.

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current knowledge of where Appellant’s mother was living, and of 

her current state of health. Had counsel simply asked that 

question of Ms. DeLeon during the trial preparation phase, instead 

of when she was on the stand, and followed up with a diligent 

investigation, significant mitigation evidence could have, and 

would have, been uncovered. It is also significant that, in the state 

habeas hearing, trial counsel testified that he knew Appellant’s 

mother had been in court - or at least in the courthouse - at some 

time before the appellant’s trial, but that he was “unable to get 

hold of her.” [record citations omitted].

This is a fair characterization of the evidence. The record shows that the 

minimal investigation conducted by Trevino’s trial counsel here is remarkably 

similar to the investigation in Wiggins that the Supreme Court held to be 

constitutionally deficient. Not only did Trevino’s trial counsel do an abysmal 

job of locating potential mitigation witnesses, but he failed to elicit easily 

obtainable information from the few interviews he conducted, most notably the 

whereabouts of Trevino’s mother. Trevino’s trial counsel also admitted in a

2003 affidavit that the trial team “did not ask for any experts in this case other 

than to check the DNA results” and that “[i]n hindsight, we should have gotten 

mitigation expert [sic] to do a psycho-social history of Carlos’ life. But 

mitigation experts were not used very much at the time of the trial (1997 in 

Bexar County).” As Wiggins pointed out, the ABA has called for intensive 

mitigation investigations in capital cases, including into a defendant’s family 

and social history, since well before Trevino’s sentencing in this case.72

Given that Trevino’s life was on the line, reasonable jurists would 

consider the mitigation investigation conducted by his trial counsel 

insufficient. We therefore conclude that not only would reasonable jurists 

debate the district court’s determination of the Strickland performance prong, 

they would agree that it erred. Trevino has at least sufficiently pleaded that 

 

72 Wiggins, 539 U.S. at 524-25.

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his trial counsel’s investigation into mitigation evidence was constitutionally 

deficient under Strickland and, more specifically, Wiggins.

C. WIGGINS CLAIM—STRICKLAND PREJUDICE PRONG

As explained above, the prejudice prong of Strickland allows relief only 

if there is a “reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.”73 “A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome.”74 “The likelihood of a different result must be substantial, not just 

conceivable.”75

As indicated above, the district court appears to have lumped all of the 

proposed “new” evidence together for much of its analysis, which heavily 

focused on the character witness testimony. It is worthwhile to distinguish 

between Trevino’s proposed character witness testimony and his proposed 

FASD evidence. The character witness testimony certainly falls under the 

classic “double-edged” evidence distinction discussed above in connection with 

Burger and Darden, but the FASD evidence potentially has far greater 

mitigation value.

Trevino’s proposed character witness testimony, as in Burger, contains 

only weak mitigation evidence but strong additional aggravating evidence, 

including Trevino’s unpredictable and violent behavior. Thus, no reasonable 

jurist would debate whether the district court correctly concluded that Trevino 

had failed to show prejudice in his trial counsel’s failure to discover and 

introduce the additional character witness testimony. However, that does not 

necessarily mean that no reasonable jurist would debate whether the district 

 

73 Strickland, 466 U.S. at 694.

74 Id. 75 Brown, 684 F.3d at 491.

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court properly found that trial counsel’s failure to discover and introduce FASD

evidence did not prejudice Trevino.

The district court characterized the FASD evidence as “double-edged” in 

that an FASD diagnosis could tend to show that Trevino would pose a risk of 

future violent conduct,76 but it did not discuss the issue at length. Notably, it 

also highlighted the FASD evidence as the most mitigating “new” evidence:

In sum, the “new” evidence presented by Petitioner [including the 

character witness testimony], while admittedly containing some 

mitigating aspects (particularly those concerning Petitioner’s 

mother’s alcoholism and the likelihood Petitioner suffers from 

Fetal Alcohol Spectrum Disorder), also contains a plethora of 

information which would have assisted the prosecution in 

obtaining an affirmative answer to the Texas capital sentencing 

scheme’s future dangerousness special issue.77

Dismissing the FASD out-of-hand as “double-edged” is problematic for a 

few reasons. First, Garza v. Stephens, 738 F.3d 669 (5th Cir. 2013), suggests 

that FASD evidence could potentially be admissible in this case. In Garza, the 

petitioner raised a new argument in his second state habeas petition based on 

FASD. The state failed to request dismissal on procedural default grounds, but 

the district court dismissed the claim on its merits, as did this court, reasoning:

Garza contends that trial counsel was ineffective in not 

investigating and introducing evidence of his possible fetal alcohol 

syndrome. But, as the district court observed, Garza fails to 

provide evidence that the underlying facts concerning such a 

syndrome were made known to trial counsel. Trial counsel had no 

leads to that effect. None of the family members mentioned the

mother’s alcohol or drug abuse to trial counsel; in fact, the witnesses 

spoke favorably of her at the punishment phase. Furthermore, such 

evidence was neither located in the TYC file, which contained 

three separate psychological evaluations of Garza, nor provided by 

Ferrell at any time. Given trial counsel’s investigation, and the lack 

 

76 2015 WL 3651534 at *10 (citing Sells v. Thaler, 2012 WL 2562666 at *58).

77 Id.

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of any evidence regarding the mother’s substance use, it was 

entirely reasonable to not investigate the possible effects of fetal 

alcohol syndrome. Accordingly, Garza cannot overcome the strong 

presumption that trial counsel’s representation on this front fell 

within the wide range of reasonable professional assistance. See 

Strickland, 466 U.S. at 689, 104 S. Ct. 2052.78

Garza concerns the performance prong of Strickland rather than the 

prejudice prong, but it suggests that knowledge of a defendant’s mother’s 

substance abuse should at least cause the trial attorney to investigate further. 

Although the Garza panel would have excluded the evidence under those 

circumstances, this case is distinguishable. First, Trevino’s claim is that his 

trial counsel did not conduct a constitutionally sufficient investigation in the 

first place. The district court noted in its 2009 opinion that a “wealth” of 

additional information would have been discovered with “even the most 

minimal investigation into petitioner’s background.”79 Second, even the single 

mitigation witness presented, Trevino’s aunt, testified that Trevino’s mother 

was an alcoholic and alluded to family problems.

It is worth examining more closely the FASD evidence Trevino seeks to 

develop further, especially the psychological report he has offered since it was 

completed in 2004: the April 16, 2004 Privileged and Confidential Forensic 

Psychological Evaluation by Dr. Rebecca A. Dyer, Ph.D., of Forensic Associates 

of San Antonio. Dr. Dyer’s report sets out the foundation for her report at the 

outset:

Based on reviews of his school records, interviews with his mother 

and family members, and information provided by Mr. Treviño, 

Mr. Futrell [one of Trevino’s federal habeas attorneys] reported 

that there was evidence suggesting that Mr. Treviño has a history 

of fetal alcohol syndrome and possible cognitive limitations as a 

result of prenatal exposure to alcohol. Mr. Wolf interviewed the 

 

78 738 F.3d at 681 (emphasis added).

79 678 F. Supp. 2d at 497.

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attorney who was the ‘Lead Defense Counsel’ at Carlos Treviño’s 

Capital Murder trial--Mr. Mario Treviño (not related), who 

acknowledged that information regarding Carlos’ childhood, 

including his pre-natal exposure to alcohol, was not explored or 

presented as potential mitigating factors in the punishment phase 

of Carlos’ trial. In the affidavit provided by Attorney Mario Treviño 

to Carlos’ habeas attorneys, Mario Treviño, indicated that the 

defense did not attempt to uncover mitigating evidence about 

Carlos Treviño’s life, as “mitigation experts were not used very 

much at the time of the trial.” It was requested that I evaluate 

Carlos Treviño regarding the possibility of fetal alcohol syndrome 

and the effects of prenatal alcohol exposure on his cognitive 

functioning at the time of the capital offense.

The opinions presented in this report are based on approximately 

twelve and a half hours of face-to-face contact with Mr. Treviño, 

all of which occurred at the Polunsky Unit of the Texas 

Department of Criminal Justice. During this time, I interviewed 

Mr. Treviño and I administered a comprehensive battery of 

psychological tests.

Dr. Dyer also conducted interviews with a mitigation specialist, with 

Trevino’s mother (face-to-face), and with the senior warden at the Polunsky 

unit. She reviewed a number of documents, including Trevino’s school records 

(from prior to the trial), juvenile probation records (from prior to the trial), 

detention records (from prior to the trial), various sworn affidavits and 

statements (post-trial), and miscellaneous documents largely concerning 

psychological tests and correspondence (apparently all post-trial). Based on all 

of the above, Dr. Dyer wrote the following summary and opinion:

Review of Mr. Trevino’s history indicates a number of factors that 

likely had a negative impact on his cognitive, behavioral and 

emotional development. Most notable is his heavy prenatal 

exposure to alcohol. Prenatal exposure to alcohol has been 

associated in the literature with the development of Fetal Alcohol 

Syndrome (FAS), a term that was first coined in 1973. Fetal 

Alcohol Syndrome is diagnosed when there is apparent facial 

dysmorphology, growth restriction, and central nervous system 

and neurodevelopmental abnormalities, with or without confirmed 

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prenatal exposure to alcohol. Additionally, extensive research has 

documented that individuals who were exposed to alcohol 

prenatally may present with some, but not all of the characteristics 

of FAS, which is described as being someone with Fetal Alcohol 

Effects (FAE). This term is frequently used to describe adults who 

were not identified with FAS as children, as longitudinal studies 

have found that as individuals age, some of the characteristic signs 

of FAS become less prominent, particularly the facial 

dysmorphology and growth restriction characteristics. However, 

studies have shown that individuals with signicant [sic] prenatal 

exposure to alcohol tend to demonstrate varying degrees of 

cognitive, academic, attentional and behavioral difficulties 

throughout child and adulthood. 

Based on my extensive interviews with Mr. Treviño, the results of 

a comprehensive battery of psychological tests, my interview with 

his mother, and my review of the documents associated with his 

medical, developmental, social and academic history, it is my 

opinion that Mr. Treviño presents with the characteristics of FAE. 

Though not clearly conclusive, his facial features include notable 

distinguishing eye characteristics. His stature is slightly below the 

norm for his age and ethnic group, although this finding is 

obviously a less distinguishing feature. His prenatal exposure to 

alcohol was significant, as was his low birth weight. It is 

unfortunate that early childhood medical records are unavailable, 

although Mr. Treviño’s mother admits that she largely neglected 

to obtain regular medical consultation and check-ups, as well as 

medical evaluation and treatment in the case of illness or what she 

determined to be minor, non-life threatening injuries. The results 

of the intellectual assessments indicate that Mr. Treviño is 

functioning within the low average range of intellectual 

functioning. His verbal, performance and full scale IQ scores are 

consistent with those found in individuals with FAE. Other 

characteristics consistent with FAE include a history of employing 

poor problem-solving strategies, attentional deficits, poor 

academic functioning, memory difficulties, and history of 

substance abuse, all characteristics that are present in Mr. 

Treviño’s history and test results. Although many of these 

characteristics are also consistent with a history of physical abuse, 

neglect, and other clinical and behavioral disorders, it is important 

to note that research has indicated that only individuals with 

FAS/FAE tend to present with long term problems with adaptive 

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functioning, regardless of home background, history of childhood 

abuse or trauma, social background, or history of clinical and/or 

behavioral problems. In essence, individuals with histories of 

significant prenatal exposure to alcohol have been shown to present 

with deficits in adaptive behavior, poor judgment, attentional 

deficits, and other cognitive deficits throughout childhood, 

adolescence and into adulthood, which is not the finding in 

individuals with other childhood difficulties. In addition, the 

deficits found in FAS/FAE children tend to become more 

debilitating as these individuals get older.

* * *

Based upon the current forensic psychological assessment, it is my 

opinion that Mr. Treviño’s history, his clinical presentation and 

the psychological test results are consistent with the 

characteristics of FAE. This finding does not indicate the presence 

of mental retardation. Based on my evaluation, Mr. Treviño’s 

history of FAS would not have significantly interfered with his 

ability to know right from wrong, or to appreciate the nature and 

quality of his actions at the time of the capital offense. However, 

his history of FAE clearly had an impact on his cognitive 

development, academic performance, social functioning, and 

overall adaptive functioning. These factors, along with his 

significant history of physical and emotional abuse, physical and 

emotional neglect, and social deprivation clearly contributed to Mr. 

Treviño’s ability to make appropriate decisions and choices about 

his lifestyle, behaviors and actions, his ability to withstand and 

ignore group influences, and his ability to work through and adapt 

to frustration and anger. These deficits would not only have 

impacted any of Mr. Treviño’s decisions to participate in or refrain 

from any activities that resulted in his capital murder charges, but 

also likely impacted his ability to understand and make 

appropriate decisions about the plea offer presented by his counsel. 

These findings are consistent with his description of his inability 

fully comprehend his attorney’s explanation of the original plea 

offer of a life sentence (“forty-years”), his social awareness with 

regard to his assumption of loyalty toward his friends and family 

members, and his ability to confide in his attorneys with regard to 

his apprehensions and perceived sense of mistrust. Likewise, as 

his original defense attorneys apparently did not explore, develop 

or present any mitigating evidence regarding Mr. Treviño’s 

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prenatal, developmental, social and academic background at the 

time of his trial, they were unlikely aware of his deficits.

Further, according to my review of visitation records from the 

Bexar County Detention Center, Mr. Treviño was held, pending 

his capital murder trial, his original attorneys visited and 

conferred with him on very few occasions, for short periods of time. 

Such minimal contact, coupled with the failure to explore and 

develop mitigating evidence regarding Mr. Treviño history of FAE 

would have made it difficult for his original defense attorneys to 

effectively assist him in making appropriate decisions with regard 

to his defense. [emphasis added]

Thus, Dr. Dyer’s report offers mitigating evidence that tends to counter 

at least some of the aggravating evidence offered by the state. The question 

under Strickland, of course, is not whether it offers any mitigating evidence at 

all, but whether that evidence, compared to the aggravating evidence, is 

weighty enough that it conceivably could have swayed at least one juror’s vote.

The district court’s own prior opinion in this case strongly suggests that 

FASD evidence, if properly developed and admitted, conceivably could have 

changed the result. As noted above, the district court emphasized in both its 

2009 and 2015 opinions that it considered the most aggravating factor to be 

Trevino’s apparent lack of remorse:

The latter point cannot be over-emphasized. Salinas’ murder was 

particularly brutal and senseless. Yet Petitioner has consistently 

refused to acknowledge his role in her murder, even to his own trial 

counsel, claiming instead to have been “too stoned” to remember 

exactly what happened that evening. Petitioner’s own affidavit, 

executed June 11, 2004, contains not even a scintilla of sincere 

contrition; instead Petitioner expresses hostility and blames his 

trial counsel for allegedly misrepresenting the terms of a proffered 

plea bargain for a life sentence without accepting any 

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responsibility for his own rejection of the offer after it was 

accurately described to Petitioner.80

The possible FASD evidence in this case goes to the heart of that most 

aggravating evidence, as the district court itself opined at the very end of its 

2009 opinion:

Petitioner’s third claim herein, i.e., his complaint of ineffective 

assistance arising from his trial counsel’s failure to adequately 

investigate petitioner’s background and develop and present 

mitigating evidence during the punishment phase of his trial 

regarding petitioner’s deprived and abusive childhood, was 

procedurally defaulted. Reasonable minds could not disagree on 

this point. Nonetheless, reasonable minds could disagree over 

whether petitioner has satisfied the “fundamental miscarriage of 

justice” exception to the procedural default doctrine in connection 

with this claim. Petitioner’s federal habeas counsel has presented 

this Court with evidence suggesting petitioner suffers from the 

effects of Fetal Alcohol Syndrome, including the inability to express 

remorse in a recognizable manner. Furthermore, petitioner has 

presented this Court with evidence showing even the most 

minimal investigation into petitioner’s background (through 

rudimentary interviews with family members and review of 

relevant school and medical records) would have revealed a wealth 

of additional mitigating evidence far more substantial that the 

superficial account of petitioner’s childhood given by petitioner’s 

lone witness during the punishment phase of trial. Under these 

circumstances, reasonable minds could disagree over whether 

petitioner has satisfied the fundamental miscarriage of justice 

exception to the procedural default doctrine with regard to his 

Wiggins claim, i.e., petitioner’s complaint that his trial counsel 

rendered ineffective assistance at the punishment phase of trial by 

failing to (1) adequately investigate petitioner’s background and 

(2) discover, develop, and present available mitigating evidence.81

 

80 Trevino v. Thaler, 678 F.Supp.2d at 471–72 (quoted in Trevino, 2015 WL 3651534 

at *3).

81 678 F. Supp. 2d at 497-98 (emphasis added).

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Thus, in its 2009 opinion, the district court drew the reasonable 

conclusion that the FASD evidence, if introduced, could tend to show that 

Trevino was unable “to express remorse in a recognizable manner,” which the 

district court continues to characterize as the most aggravating factor. Indeed, 

evidence of Trevino’s FASD could go to the very heart of that issue. 

Accordingly, reasonable jurists could not only debate the district court’s 

dismissal on the pleadings of Trevino’s FASD claim under the Strickland

prejudice prong, but would agree that the court erred.

In sum, we conclude that reasonable jurists would not debate the district 

court’s dismissal of his Wiggins claim pertaining to character witness 

testimony because, at a minimum, he has failed to show under Strickland that 

failure to discover and introduce that evidence prejudiced him in any way.

We also conclude that reasonable jurists would agree that Trevino has 

at least sufficiently pleaded an ineffective-assistance-of-trial-counsel claim 

pertaining to the failure to investigate and discover potential evidence of FASD 

on both the performance and prejudice prongs of Strickland, and that he 

sufficiently pleaded cause to excuse his procedural default under 

Martinez/Trevino. We are careful to note that his potential FASD evidence may 

go beyond the proposed expert testimony of Dr. Dyer or any other experts. 

Indeed, the FASD evidence may incorporate lay witness testimony, such as 

personal and family history interviews relevant to a possible FASD diagnosis,

that might otherwise have been excluded as character witness testimony under 

this opinion.

D. EVIDENTIARY HEARING

Finally, Trevino argues that the district court should have held an 

evidentiary hearing based on the court’s own representation that it would hold

some sort of hearing once Trevino filed his second amended petition. Neither 

Trevino nor the State cites any controlling case law, but the district court’s 

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decision is a classic discretionary decision. The district court’s dismissal was 

based not on findings of fact but on the pleadings alone. No reasonable jurists 

would debate whether the district court had the authority to forego an 

evidentiary hearing, which would resolve disputed facts, before entering a 

decision based on the pleadings alone, which implies the absence of disputed 

facts (or at least implies that any such disputes must be resolved in the 

petitioner’s favor). We therefore deny a COA on this issue.

IV. CONCLUSION

For the reasons set out above, we grant a COA issue on the questions of 

whether the district court erred by: (1) concluding that Trevino failed to 

sufficiently plead cause to excuse his procedural default under 

Martinez/Trevino; (2) concluding that Trevino’s trial counsel’s performance 

was not deficient under Strickland with respect to his failure to discover and 

introduce FASD evidence; and (3) concluding that Trevino’s trial counsel’s 

performance did not prejudice Trevino to the extent his counsel failed to 

investigate and present evidence, both expert and lay, showing that Trevino 

suffers from FASD. We reach this conclusion not only because reasonable 

jurists could debate whether the district court erred in dismissing his FASD

claim but because reasonable jurists would agree that the district court erred 

by doing so.

We deny a COA on all other issues, including the proposed character 

witness testimony.82

COA GRANTED IN PART AND DENIED IN PART.

 

82 We reiterate that Trevino’s FASD evidence may incorporate lay witness testimony 

relevant to his potential FASD diagnosis that might otherwise have been excluded as 

character witness testimony.

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