United States Court of Appeals

Fifth Circuit

FILED

July 31, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-50021

_____________________

MICHAEL DEAN GONZALES,

Petitioner - Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION,

Respondent - Appellee.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Texas, Midland

USDC No. MO-99-CV-72

_________________________________________________________________

Before JONES, Chief Judge, JOLLY, and GARZA, Circuit Judges.

PER CURIAM:

Michael Dean Gonzales was found guilty of capital murder

and sentenced to death. During federal habeas proceedings, the

State conceded that he is entitled to a new sentencing hearing.

The issues here include an alleged Brady claim and two

ineffectiveness allegations. Finding no error that meets the

demanding AEDPA review standards, we AFFIRM.

I. BACKGROUND

A Texas jury convicted Gonzales of killing Manuel and

Merced Aguirre. Gonzales stabbed the Aguirres to death in their

home in Odessa, Texas on the night of April 21, 1994. Mr. Aguirre

was stabbed eleven times and Mrs. Aguirre had stab wounds too
1 These facts are largely taken from the opinion of the Texas Court of

Criminal Appeals affirming Gonzales’s conviction on direct appeal. Gonzales v.

State, No. 72,317 (unpublished).

2

numerous to count, including many defensive wounds. A blood

spatter expert testified that Mr. Aguirre was overcome quickly, but

Mrs. Aguirre fought even after falling to the floor in the attack.

The medical examiner testified that she had been “basically

butchered.”1

The police investigation of the crimes quickly focused on

Gonzales, who, along with his mother, wife, and child, lived in the

house next door to the Aguirres. Prior to the night of the

murders, the Aguirres had complained to the police about being

disturbed by Gonzales’s late night activities. The Aguirres’ son

testified that their fear of Gonzales was one of the reasons why

they had put bars on their windows.

Gonzales was taken into custody for questioning

approximately sixteen hours after the murders, and he consented to

a luminol test of his arms, hands, and shoes. Except for the site

on Gonzales’s arm where the police had drawn blood that day, the

luminol test did not indicate the presence of blood on the portions

of Gonzales’s body that were tested. Gonzales was released from

custody after being questioned.

The police found a “blood transfer” stain on a camper

parked in the alley between the Aguirre and Gonzales houses.

Police also noticed that the alley had recently been swept clean.

An anonymous Crime Stoppers informant reported that Gonzales had
3

swept the dirt in that alley the morning after the murders.

Police also found a red pepper on the floor underneath

Mrs. Aguirre’s body. The same type of pepper was found on

Gonzales’s back doorstep, and a bowl of the same peppers was found

in his refrigerator. Detective Snow Robertson testified at trial

that he had attempted, unsuccessfully, to locate such peppers in

local stores. There was evidence that these peppers were not

native to Texas and were unique to a certain area of Mexico.

Linda Olivarez testified that on the night of the

murders, Gonzales and his wife and child came to her home around

10:15 p.m. Gonzales had brought with him a plastic bag that he

left outside by Olivarez’s front gate. Gonzales left with a man in

a truck, and returned shortly thereafter. He asked his wife to

pick up the plastic bag when they left. The State’s theory was

that the plastic bag contained the bloody clothing Gonzales had

worn when he stabbed the Aguirres.

On the day after the murders, a neighbor found property

belonging to the victims in front of the dumpster located on the

route from Gonzales’s house to the Olivarez home. Police later

found more of the Aguirres’ property in or around the dumpster. 

Although there was no sign of forced entry, the Aguirres’

son had identified a microwave, a VCR, a camera, a stereo, and a

.22 pistol as missing from their house. Less than a week after the

murders, Gonzales asked Olivarez and her husband, Julian, if they

wanted to buy a microwave oven. Julian told Gonzales he would have
4

to see it first. Julian, Linda, and Gonzales went to Gonzales’s

house, where Gonzales showed them a VCR, a camera, and a stereo for

sale. The Olivarezes purchased the microwave, VCR, and stereo.

Gonzales also showed Julian a .22 caliber pistol, but told him it

was not for sale. Gonzales said, “They are on to me.” When Julian

asked what he meant, Gonzales replied, “No, I can’t tell you.”

After the Olivarezes took the items to their home,

Gonzales retrieved the stereo because they had not paid for it yet

and he had already sold it to someone else. During interrogation,

Daniel Lugo, a member of Gonzales’s gang, told the police that he

had the Aguirres’ stolen stereo, which he had gotten from Gonzales.

Gonzales’s fingerprint was found on the back of the stereo. The

pistol was eventually recovered from Delia Sanchez, who testified

that she purchased it from Gonzales. All of these items were later

identified as those stolen from the Aguirres’ home. Some empty

shell casings found in a box at Gonzales’s house were determined to

have been fired from the Aguirres’ gun.

Police also found a white Dexter & Russell kitchen knife

in Gonzales’s home. The medical examiner testified at trial that

this type of knife could have caused both of the victims’ wounds.

On cross examination, the medical examiner stated that he could not

rule out the possibility that Mrs. Aguirre was stabbed with more

than one knife.

Gonzales was arrested fifteen days after the murders and

charged with capital murder for the murder of more than one person
2 Detective Robertson suspected that two other gang members, Daniel

Lugo and Jesse Perkins, were involved in the murders. Julian Olivarez believed

that both of them probably had something to do with the murders. Lugo had told

a friend that there were dead bodies in the Aguirres’ house at least an hour

before the crime was reported by the Aguirres’ son.

3 In part of his habeas petition for which this court did not grant

a COA, Gonzales argued that his counsel was ineffective for failing to impeach

Kenimer with the somewhat different statement Kenimer made soon after this

confession. Then, Kenimer reported that: 

I was escorting [Gonzales] back to his cell, in D Block. He then

blurted out “They can’t pin nothing on me”. I told him I don’t

know, I’m not familiar with what your case is. Michael Gonzales is

my third cousin, on my mother’s side, and he knows I’m his cousin.

Michael then said “I did it, but they can’t pin nothing on me.” I

then told him I don’t know what you’re talking about. He replied

was (sic) “On the murder of the old man and the old lady.”

5

during the same criminal transaction. Upon arrest, Gonzales had

two teardrop tattoos on his face; at trial, an officer testified

that these tattoos were a gang symbol signifying the number of

people a person has killed. Gonzales was in a gang called “Homies

Don’t Play.” No one else was charged in the murders.2

On the day Gonzales was arrested, Charles Kenimer, a

guard at the local jail and Gonzales’s relative, saw Gonzales leave

a police station interrogation room with Detective Robertson and a

Texas Ranger. Kenimer testified that Gonzales seemed upset and

that he tried to calm Gonzales by stating, “Boy, you really got

these officers upset. I don’t know what you said.” Kenimer

testified that Gonzales responded, in Spanish, “They’re trying to

pin this rap on me, this murder rap on me. They can’t do it. They

don’t have any evidence. Although I did it, you know, but they

don’t have anything to go on.”3

During the guilt-innocence phase, the defense strategy

was to highlight evidence of other parties’ involvement in the
6

offense, and to emphasize the State’s burden of proof. The

prosecution did not request a jury instruction on the law of

parties. Thus, the jury was required to find that Gonzales

intentionally caused the death of both victims by stabbing them.

During closing argument, defense counsel argued that the evidence

strongly suggested that other suspects were involved, and that

there was no direct evidence that Gonzales murdered both victims.

Defense counsel repeatedly reminded the jury that Gonzales could

not be held responsible for an accomplice’s criminal conduct.

Nevertheless, during his final closing argument, the prosecutor

argued, without objection, that Gonzales was guilty of capital

murder even if he killed only one of the victims and aided and

abetted someone else in the killing of the other victim. During

deliberations, the jury asked the following question: “we need

clarification on capital murder versus murder verdict. If Mr.

Gonzales murdered one individual only, then does his association

make him guilty of both.” The trial judge responded by referring

the jury to the charge.

The jury found Gonzales guilty of capital murder.

Following the punishment phase, the jury answered the special issue

on future dangerousness affirmatively and answered the special

issue on mitigation negatively; thus, Gonzales was sentenced to

death. The Texas Court of Criminal Appeals affirmed the conviction

on direct appeal in June 1998. Gonzales v. State, No. 72,317

(unpublished). Gonzales’s state habeas application was denied by
7

the trial court and the Texas Court of Criminal Appeals. Ex Parte

Michael Dean Gonzales, No. 72,317, Writ No. D-23,370.

Gonzales filed his federal habeas petition in January

2000, raising six claims for relief: (1) the prosecutor denied him

due process by concealing the exculpatory negative result of a

luminol test for blood; (2) he was denied effective assistance of

counsel on direct appeal because his attorney did not appeal the

denial of his motion for new trial; (3) he was denied effective

assistance of counsel at the guilt and punishment phases of his

trial (nine sub-claims); (4) his unwarned confession to Kenimer

violated his Fifth Amendment right against self-incrimination;

(5) he was denied due process because the prosecutor knowingly

failed to correct Kenimer’s false testimony that he spontaneously

confessed to him; and (6) the prosecutor denied him due process by

knowingly allowing a police officer to give the jury the false

impression that his teardrop tattoos meant that he had killed two

people. 

Gonzales filed a supplemental petition in August, 2000,

asserting that the State’s psychological expert witness testified,

unconstitutionally, that race is an indicator of future

dangerousness. The State conceded that this claim is valid and

entitled Gonzales to a new sentencing hearing. The district court

so ordered, and neither party has appealed its ruling on this

point.

In March 2001, the district court held a two-day evidentiary
8

hearing on the Brady and ineffective assistance claims. The

district court denied relief in a carefully written opinion and

denied Gonzales’s request for a certificate of appealability

(“COA”).

II. DISCUSSION

This court granted a COA for Gonzales’s claims that: 

(1) the prosecutor withheld exculpatory evidence in

violation of the Due Process Clause by concealing the negative

result of a luminol test;

(2) trial counsel rendered ineffective assistance by

failing to refute a police officer’s testimony that the two

teardrops tattooed on Gonzales’s face represented the number of

people he had killed; and

(3) trial counsel rendered ineffective assistance by

failing timely to object to a police officer’s testimony that

Gonzales’s mother hid knives from Gonzales because she feared that

he was going to kill her and his family.

This court denied a COA for Gonzales’s procedurally

barred claims and his cumulative ineffective assistance of counsel

claim. See Gonzales v. Dretke, No. 03-50021 (5th Cir. Feb. 7,

2005). 

A. Standards of Review

Gonzales is not entitled to federal habeas relief on

these claims unless the state court’s adjudication of the claims

(1) resulted in a decision that was contrary to, or
9

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A decision is “contrary to . . . clearly

established Federal law, as determined by the Supreme Court of the

United States . . . if the state court arrives at a conclusion

opposite to that reached by th[e] Court on a question of law or if

the state court decides a case differently than th[e] Court has on

a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000). A decision

“involve[s] an unreasonable application of [] clearly established

Federal law, as determined by the Supreme Court of the United

States . . . if the state court identifies the correct governing

legal principle from th[e] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id.

at 413, 120 S. Ct. at 1523. The inquiry into reasonableness is

objective rather than subjective, and the court is not authorized

to grant relief simply because the court concludes in its

independent judgment that the state court decision applied clearly

established federal law erroneously or incorrectly. Instead,

habeas relief may be granted only if the state court’s decision is

both incorrect and objectively unreasonable. Id. at 409-11, 120

S. Ct. at 1521-22. A state court’s findings of fact are presumed

to be correct unless the petitioner rebuts the presumption by
10

“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Federal law concerning the disclosure of exculpatory

evidence is clearly established: The prosecution must disclose to

the defense evidence that is favorable and material to the

defendant’s guilt or punishment. United States v. Bagley, 473 U.S.

667, 674-75, 105 S. Ct. 3375, 3379 (1985); Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 1196 (1963). To establish a Brady

violation, a defendant must show: “The evidence at issue must be

favorable to the accused, either because it is exculpatory, or

because it is impeaching; that evidence must have been suppressed

by the State, either willfully or inadvertently; and prejudice must

have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119

S. Ct. 1936, 1948 (1999).

The law governing ineffective assistance claims also is

well-established: To succeed on these claims, Gonzales must show

that his counsel’s performance was deficient and that he was

actually prejudiced by the deficient performance. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

Whether counsel’s performance was deficient is determined by

examining whether the challenged representation fell below an

objective standard of reasonableness. Kitchens v. Johnson, 190

F.3d 698, 701 (5th Cir. 1999). The court’s “scrutiny of counsel’s

performance must be highly deferential.” Strickland, 466 U.S. at

689, 104 S. Ct. at 2065. “[C]ounsel is strongly presumed to have

rendered adequate assistance and to have made all significant
11

decisions in the exercise of reasonable professional judgment.”

Id. at 690, 104 S. Ct. at 2066. 

The test for prejudice under Brady and Strickland is the

same: Gonzales must establish that there is a reasonable

probability that, if the evidence had been disclosed, and/or if

counsel had not performed deficiently, the result of the proceeding

would have been different. A reasonable probability of a different

result is shown when the suppressed evidence or counsel’s mistakes

undermine confidence in the outcome of the trial. Kyles v.

Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995);

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

The issue before this court is not whether Gonzales made

the required showing under Brady and Strickland. Instead, under

AEDPA, the issue is whether the state court’s decision——that

Gonzales did not make the required showing——was contrary to, or an

unreasonable application of, that clearly established federal law.

See Busby v. Dretke, 359 F.3d 708, 717 (5th Cir. 2004).

B. Merits

1. Disclosure of the Luminol Test

Gonzales argues first that the state court unreasonably

applied clearly-established federal law when it decided that the

prosecutor did not unconstitutionally withhold exculpatory evidence

by concealing from the defense that the luminol test was negative.

When Gonzales was taken into custody for questioning
12

sixteen to eighteen hours after the murders, police officers

Lambert and Thomas conducted a luminol test on Gonzales’s hands,

arms, and shoes. Luminol becomes fluorescent when it comes into

contact with any traces of blood. The only area that appeared

fluorescent was at the crook of Gonzales’s arm, where blood had

been drawn shortly before the test. Lambert’s report characterized

the test result as “inconclusive.”

Defense counsel were aware of the report describing the

luminol test as “inconclusive.” When, after trial, they learned

that the result was actually negative, they sought a new trial,

arguing that the prosecution’s deception violated Gonzales’s due

process rights.

At the hearing on the motion for new trial, the

prosecutor conceded that the perpetrator probably would have become

bloodstained if he had inflicted all of the stab wounds that the

victims sustained. Detective Thomas testified that, on the day of

the test, he orally informed Detective Robertson that the result

was negative. Robertson did not recall receiving that information

from Thomas and did not mention it in his report.

Lambert and Thomas testified that they did not ask

Gonzales whether he had washed his hands and arms in the sixteen

hours before the test because they did not think it could have

affected the result. Gonzales appeared well-groomed and clean at

the time of the test. Thomas believed that it would have been

“very difficult” for Gonzales to have completely removed all of the
13

blood from his skin before the luminol test. Lambert testified

that luminol can reveal invisible traces of blood on a surface that

appears to be clean. Both officers agreed that “negative” would

have been more accurate than “inconclusive” to describe the test

result. 

Detective Robertson believed, in contrast, that Gonzales

could have washed all of the blood from his skin in the interval

between the murders and the luminol test. Wilson Young, a

serologist with the Texas Department of Public Safety, testified

that Gonzales could have successfully removed all invisible traces

of blood from his skin during the time between the murders and the

luminol test. He admitted that he did not know whether it was more

difficult to remove invisible traces of blood from human skin than

from other surfaces, because he had no training or experience using

luminol on skin. 

The trial court denied the motion for new trial.

Gonzales raised the issue in his state habeas application. The

state court recommended that relief be denied, stating that there

was no necessity for a fact finding hearing as there was ample

evidence in the record for the court to rule on the relief sought,

and that this claim was fully litigated in the hearing on

Gonzales’s motion for a new trial. The Texas Court of Criminal

Appeals accepted that recommendation.

The federal district court held that the prosecutor had

an obligation to reveal the negative test result even though
4 Gonzales argues that the district court applied a too-stringent

materiality standard in holding that the evidence “would not have changed” the

jury’s verdict. The issue at this stage, however, is not whether the federal

district court applied the wrong standard, but whether the state court’s decision

was an unreasonable application of federal law. Based on our conclusion that the

test result was not concealed from Gonzales’s defense, we need not reach the

question of materiality under Brady.

14

defense counsel had access to the prosecutor’s entire file,

including Lambert’s report, and even though Gonzales was present

when the test was conducted and the results were immediately

obvious to him. The district court concluded, however, that the

negative test result was not material because there is no

reasonable probability that it would have changed the jury’s

finding that Gonzales caused the death of both victims.4 The court

observed that Gonzales could have worn clothes that concealed his

skin and could have disposed of any bloody clothing prior to

entering his home. Thus, evidence that there was no blood on his

skin sixteen or eighteen hours after the murders did not negate

evidence that implicated him. The court was not persuaded by

Gonzales’s argument that the bloody hand-print found on the kitchen

wall near Mrs. Aguirre’s body proved that the perpetrator did not

wear gloves when committing the crime. The court noted that the

hand-print was not used as evidence against Gonzales although it

could have belonged to the perpetrator; the hand-print could also

have been that of the victim or of a second assailant. The court

stated further that, after having reviewed a videotape of the crime

scene, introduced into evidence at the guilt-innocence phase of

trial, the court was convinced that the blood was surprisingly
5 At the hearing, Gonzales presented the testimony of a forensics

expert who performed an experiment to demonstrate the unlikelihood of a negative

luminol test on a person who had just committed a bloody crime. This experiment

did not duplicate the conditions of the crime and the test conducted on Gonzales.

The expert coated his left hand with blood, let it sit for an hour while playing

a computer game, took a shower to remove the blood, and then a few hours later

applied luminol. In contrast, Gonzales had at least sixteen hours to remove any

blood from his skin. The expert’s test did not prove that blood could not be

removed under the circumstances of this case, and the expert testified that he

had never seen any reference to luminol on human skin.

15

isolated and not the bloody scene Gonzales described in support of

his Brady claim.

The state court’s decision to deny relief is not

unreasonable, even when considered in the light of new evidence

presented at the federal evidentiary hearing,5 as the test result

was not concealed. Gonzales was present during the test and saw

the result. Even assuming that he did not understand the

implications of the test, his attorneys had access to an open file

that contained Lambert’s report describing the test result as

“inconclusive.” Although defense counsel chose not to investigate

further because of Lambert’s conclusion, they acknowledged that

“inconclusive” could cut either way. Had counsel asked Gonzales

what had happened during the test, his response would have alerted

counsel to the possibility that the evidence could be exculpatory.

In short, defense counsel knew of information that would have

enabled them to discover the actual test result if they had

questioned Gonzales or the police officers who administered the

test.

2. Ineffective Assistance: Teardrop Tattoos
16

Gonzales’s principal ineffective assistance claim is that

the state court unreasonably applied federal law when it decided

that trial counsel were not ineffective although they failed to

refute Detective Robertson’s testimony about Gonzales’s teardrop

tattoos.

When Gonzales was arrested two weeks after the offense,

he had two teardrops tattooed on his face. At trial, Detective

Robertson testified that teardrops tattooed on a gang member’s face

represent the number of people that the individual has killed.

Defense counsel objected on the ground that Robertson was

unqualified to give an expert opinion on the subject. After

Robertson described his gang-related training, the trial court

overruled the objection and admitted the testimony. Defense

counsel did not cross-examine Robertson about the tattoos, and did

not present expert testimony about the possible meaning of the

tattoos at the guilt phase of trial. In closing argument, the

prosecutor characterized the tattoos as an admission of the murders

of two people:

Some of the days that you were here, you saw me wearing

a Shriner pin. I am a Shriner. I am proud of that, and

I wear that symbol proudly. Well, gangsters in their own

way have their symbols and they wear them proudly. Two

teardrops. What does that mean? That means he has

killed two people. And the symbol is there for those of

his kind to see and appreciate. He doesn’t try to hide

it. It is as much as leaping out and saying to you, “I

did it, but they will never prove it.”

On direct appeal, Gonzales argued that Robertson’s

testimony about the two teardrop tattoos was offered to prove that
6 In a motion for rehearing, Gonzales reiterated that Robertson’s

testimony about the teardrop tattoos was related to an extraneous offense. He

asserted that the Court of Criminal Appeals ignored that Robertson referred to

“people” in relation to the tattoos but called the victims by their names

elsewhere in his testimony. Gonzales’s motion for rehearing concluded: “A

review of all the testimony of Robertson clearly shows that the evidence of

tattoos did not relate to the instant offense.” The Court of Criminal Appeals

denied rehearing.

17

he had committed two extraneous murders, and that his counsel

rendered ineffective assistance by failing to object to the

testimony on that ground. The Texas Court of Criminal Appeals

disagreed, stating that, from the context of the testimony,

Robertson seemed to be presenting evidence that Gonzales committed

the murders of Mr. and Mrs. Aguirre. The court concluded that,

because the testimony was not extraneous offense evidence, trial

counsel did not render ineffective assistance by failing to object

to it as such.6

In his state habeas application, Gonzales raised three

claims with respect to Robertson’s testimony about the teardrop

tattoos: (1) the prosecution violated Brady by failing to reveal

that teardrop tattoos on the face of a gang member have many

possible meanings, as opposed to the false testimony at trial that

they mean that the person bearing such marks murdered someone;

(2) the prosecution allowed Detective Robertson to present false

testimony concerning the teardrop tattoos; and (3) trial counsel

rendered ineffective assistance by failing to investigate

(including by consulting with a gang expert or Gonzales) the

meaning of the teardrop tattoos and failing to use the fact that
18

such tattoos can have many different meanings, and by failing to

object to Robertson’s testimony as evidence of an extraneous

offense. 

In support of his state habeas application, Gonzales

presented three affidavits, all stating that teardrop tattoos have

multiple meanings. In one, Gonzales himself averred that

The tear drop tattoos on my face did not mean that I had

killed two people.

Gonzales also presented the affidavit of a private investigator,

who related a hearsay conversation with a gang expert about what

meaning the tattoos can have and was told that they have “many

meanings.” Finally, a probation officer averred that the meaning

of the tattoos “varies from gang to gang,” and is most commonly

associated with violence. Only the third affidavit elicited even

arguably admissible evidence. The state habeas court denied

relief, stating that the ineffective assistance claim had been

treated on direct appeal.

In his federal habeas petition, Gonzales asserted for the

first time that because the tattoos were the only evidence that he

murdered both of the Aguirres, trial counsel rendered ineffective

assistance by failing to rebut Robertson’s opinion about the

meaning of the tattoos. Gonzales argued further that trial counsel

could have nullified Robertson’s opinion with the testimony of a

street gang expert and that the prosecution knowingly allowed

Detective Robertson to give the jury the false impression that his
19

teardrop tattoos meant that he had killed any two people, including

the Aguirres, when Robertson knew that such tattoos can signify the

killing of a member of a rival gang.

At the federal evidentiary hearing, Robertson testified

that, before trial, he did not talk to Gonzales’s counsel about the

teardrop tattoos. He testified that, if they had asked him about

the tattoos, he would have researched the topic more thoroughly and

would have discovered that the tattoos had alternative, innocent

meanings. Officer McCann, the Odessa police department’s gang

expert, testified that he would have told counsel, had they

interviewed him, that teardrop tattoos have many meanings,

including mourning for a dead or imprisoned gang member, or prior

incarceration. Finally, a gang expert testified that teardrop

tattoos relating to killings committed by the wearer usually have

a different appearance and location than the ones on Gonzales’s

face. He opined that Gonzales’s tattoos are the “mourning” type

and that Robertson’s trial testimony was misleading.

The State offers two theories why the evidence presented

at the federal evidentiary hearing should not be considered.

First, the State contends, albeit in a footnote, that Gonzales was

not entitled to any federal evidentiary hearing, as he “failed to

develop the factual basis” of his teardrop tattoo claim with

admissible evidence in state court. The State correctly relies on

AEDPA for its formulation of the narrow grounds on which federal

courts can conduct evidentiary hearings on habeas petitions from
20

state convictions. See 28 U.S.C. § 2254(e)(2) (permitting a

federal evidentiary hearing if the defendant “has failed to develop

the factual basis of a claim in State court proceedings” only if

the federal claim relies on a new rule of constitutional law, a

newly discovered factual predicate, or actual innocence supported

by clear and convincing evidence). But see Guidry v. Dretke, 397

F.3d 306, 323 (5th Cir. 2005) and opinion on denial of rehearing en

banc. Second, the State argues that this evidence is “unexhausted”

because it was not offered in state court. It is true that “[e]ven

if the petitioner raises precisely the same legal claims in state

and federal proceedings, reliance in the two proceedings upon

different factual grounds that ‘fundamentally’ alter the legal

claim will foreclose a conclusion that the claim is exhausted.” 2

RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE

§ 23.3c, at 1087 (2005); see Graham v. Johnson, 94 F.3d 958, 968

(5th Cir. 1996). Here, it is not clear that Gonzales has presented

“material additional evidentiary support that was not presented to

the state court.” Graham, 94 F.3d at 968. Instead, the testimony

offered in the federal hearing simply reinforces his state court

affidavits. In any event, we need not discuss these powerful

procedural contentions further, because even if the evidence

presented at the federal evidentiary hearing is considered,

Gonzales has not proved that the state courts unreasonably

determined his ineffectiveness claim.

While the district court found Gonzales’s attorneys
7 Gonzales asserts that the district court may have confused the facts

of this case with another case, because the murder weapon was a knife, no

fingerprint evidence was recovered from the scene, and there has never been any

fingerprint or ballistic evidence implicating him in both murders. It is

Gonzales who errs. One of Gonzales’s fingerprints was found on the back of the

stereo stolen from the victims’ home. Also, ballistics testing indicated that

some empty shell casings found in a box at his home had been fired from the

victims’ .22 caliber gun that also was stolen from their home on the night of the

murders. Accordingly, the district court was not confused when it referred to

ballistic and fingerprint evidence in this case.

8 This argument is contrary to his state court contention that the

teardrops were evidence of extraneous murders, and thus could be said to

represent an unexhausted or procedurally defaulted claim. The State does not so

contend, however, and it seems reasonable that the implications of the tattoos

may be considered irrespective whether they pertained to the Aguirres’ murder,

as the state courts found, or to extraneous murders.

21

deficient, it also concluded that Gonzales was not prejudiced under

Strickland because, considering all of the evidence against him,

the tattoos were not critical to his conviction for both murders.

The district court reasoned that the tattoos’ significance

concerning the murders was open to interpretation, even absent

objection, and that the tattoos were not definitive like the

fingerprint and ballistic evidence that implicated Gonzales in both

murders.7 It therefore concluded that there is not a reasonable

probability that the result would have changed with expert

testimony or argument challenging the meaning of the tattoos and

when Gonzales acquired them.

Gonzales contends that Robertson’s testimony that the two

teardrops meant he had killed two people was extremely damaging

because it was the only physical evidence that he personally killed

both victims.8 He asserts that even if his counsel chose not to

dispute the meaning of the tattoos, they could have argued that the
22

tattoos were irrelevant because the State failed to prove that he

acquired them after the Aguirres were murdered.

Gonzales also urges that the detective’s interpretation

of the tattoos was highly significant in the context of the whole

trial. The prosecution emphasized in closing argument that

Gonzales had two tattoos; the prosecutor obviously regarded the

testimony as important to proving that Gonzales killed two people.

Defense counsel did not object to Robertson’s testimony, did not

present any alternative theory as to the tattoos’ meaning during

the guilt phase of trial, and never mentioned the tattoos in

closing argument, despite the fact that the prosecutor referred to

them as a silent confession to murdering the two victims. The

jurors were not informed that the meaning of the tattoos was open

to interpretation——they had only heard Detective Robertson’s

testimony that they meant that Gonzales had killed two people.

Finally, although the State never proved when the tattoos were

obtained, the defense never pointed that fact out to the jury

during the guilt phase.

Despite Gonzales’s comprehensive argument, we, like the

district court, conclude that Gonzales was not prejudiced by his

trial counsel’s failure to refute Robertson’s testimony regarding

the meaning of the tattoos. That testimony is subject to

interpretation, as evidenced by the fact that Gonzales himself

argued in state court that the testimony related to extraneous

offenses, and not to the charged murders of Mr. and Mrs. Aguirre.
23

The lack of evidence concerning whether Gonzales got the tattoos

before or after the murders would have been obvious to the jury.

Most important, however, is that Gonzales’s expert in the federal

habeas proceedings could not rule out the possibility that the

number of teardrops represented the number of people Gonzales had

killed. If counsel had presented such expert testimony at trial,

the prosecution would still have countered that Gonzales’s two

tattoos meant that he had killed two people. At best, defense

attorneys could have argued that teardrop tattoos have multiple

meanings, one of which is inculpatory to Gonzales. 

Further, expert testimony about the tattoos would not

change the fact that Gonzales confessed to Kenimer, nor would it

refute the other substantial circumstantial evidence that he

committed both murders. The evidence presented at trial easily

lends itself to the inference that Gonzales stabbed Mr. Aguirre,

who was easily overcome, and then moved on to murder Mrs. Aguirre,

who fought back valiantly. Gonzales alone sold and profited from

the Aguirres’ possessions. “[A]ny arguable weakening of the

State’s [teardrop tattoo] evidence resulting from testimony

questioning [the meaning of the tattoos] must be viewed in light of

the totality of the evidence the State produced at trial.” Leal v.

Dretke, 428 F.3d 543, 549 (5th Cir. 2005).

Given the strength of the evidence against Gonzales, it

was not unreasonable for the state courts to decide both that

Gonzales could not show a reasonable probability of a different
24

result and that counsel’s failure to investigate the tattoos, even

if deficient, did not undermine confidence in the outcome of the

trial. We are mindful of the requirement that we must look

“through the prism of AEDPA deference.” Ward v. Dretke, 420 F.3d

479, 499 (5th Cir. 2005). As noted in Ward: “While we may take

issue with the correctness of this determination, we cannot say

that it constitutes an objectively unreasonable application of

federal law to the facts of this case. “[W]e must always keep in

mind that the statutory term ‘unreasonable’ requires a very high

deference to state court decisions.” Neal v. Puckett, 286 F.3d

230, 249 (5th Cir. 2002) (en banc) (Jolly, concurring); see also

id. at 246 (per curiam) (“[O]ur focus on the ‘unreasonable

application’ test under Section 2254(d) should be on the ultimate

legal conclusion that the state court reached and not on whether

the state court considered and discussed every angle of the

evidence.”).

3. Ineffective Assistance: Gonzales’s Mother’s Testimony

Finally, we consider whether the state court unreasonably

applied federal law when it decided that trial counsel did not

render ineffective assistance by failing timely to object to

Detective Robertson’s testimony that Gonzales’s mother hid knives

from him because she was afraid that he was going to kill her and

his family.

Detective Robertson testified on direct examination that,
25

after Gonzales’s arrest, police found knives hidden under a couch

cushion in the house where Gonzales lived with his mother, wife,

and child. The prosecutor asked who led the police to those

knives, and Robertson responded: “The criminalistics team found

them. Michael Gonzales’ mother told me about them.” The

prosecutor asked, “And why were they in there?” Robertson

responded: “Because she was afraid that he was going to kill her

and his family.” After the jury heard this testimony, defense

counsel objected:

Excuse me, your Honor, I was a little slow in getting on

my feet on that one. It’s obviously hearsay and it is a

rather extremely wild accusation that this lady harbored

this fear from her son. I object to that answer. I

object to the conclusion that this witness has drawn.

There is no predicate for it. There is nothing involved

in this case that would cause an investigation to be made

of such an allegation and I think that this statement was

made simply for the purposes of showmanship in front of

the jury.

Counsel asked the trial court to strike “the last remark” that

Robertson made and instruct the jury to disregard it. The trial

court granted the motion and instructed the jury not to consider

“the last remark” for any purpose.

On direct appeal, the Texas Court of Criminal Appeals

characterized the testimony as “improper.” It concluded, however,

that Gonzalez had not demonstrated prejudice under Strickland

because he had “set[] forth no argument as to why the instruction

to disregard did not cure the error.” The state habeas court

denied relief on this claim on the ground that it was treated on
26

direct appeal.

Gonzales argues that he has proved prejudice: counsel

should have done more to prevent the jury from hearing this

damaging testimony or to protect Gonzales from it by requesting a

mistrial. He contends that the jury was never told to disregard

the irrelevant fact that knives were found hidden under a cushion

in the home he shared with his mother; and that the testimony the

jury was instructed to ignore was so inflammatory that no

reasonable juror could have been expected to ignore it. He asserts

that the state court’s conclusion that the instruction to disregard

the testimony cured the error is unreasonable, in the light of the

enormous prejudice caused by a hearsay accusation that a client’s

mother thought him capable of murdering her and his family.

The federal district court stated that it was hard to

imagine that a juror could disregard testimony that Gonzales’s

mother hid her knives because she feared her son. Nevertheless,

the district court concluded that the state court’s decision was

objectively reasonable and denied relief. We agree. Gonzales has

not demonstrated that the state court unreasonably concluded that

the trial court’s instruction to disregard that testimony was

adequate to cure any error, or that the state court unreasonably

applied Strickland when it decided that counsel did not render

ineffective assistance by failing to request a mistrial.

III. CONCLUSION
27

The state courts did not unreasonably apply Strickland

and Brady. The judgment of the district court denying Gonzales’s

petition for federal habeas relief on these conviction-related

issues is, therefore,

AFFIRMED.