IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-70025

VICTOR HUGO SALDAÑO, 

 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 Eastern District of Texas

USDC No. 4:08-CV-00193

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Victor Hugo Saldaño was convicted of capital murder and sentenced to 

death in 1996. Texas later confessed constitutional error in the punishment 

stage—namely, introduction of racist testimony to support a finding of future 

dangerousness. Saldaño was again sentenced to death in 2004. He now appeals 

the district court’s denial of habeas relief. We GRANT a certificate of 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 28, 2017

Lyle W. Cayce

Clerk

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appealability (“COA”) on two issues: whether Saldaño was denied due process 

because he was not competent to stand trial and because the trial court failed 

to hold a competency hearing, and whether trial counsel was ineffective in 

failing to request a competency hearing. We DENY a COA on all other issues 

raised by Saldaño in his petition for habeas corpus.

I. BACKGROUND

A. Saldaño’s First Trial

Saldaño, a citizen of Argentina, faces the death penalty for murdering

Paul King in November 1995. A jury convicted Saldaño of capital murder in 

July 1996. As required by Texas law when the state seeks to impose the death 

penalty, the trial court then held a separate proceeding in which the jury 

considered two special issues: (1) “whether there is a probability that the 

defendant would commit criminal acts of violence that would constitute a 

continuing threat to society”; and (2) whether mitigating circumstances 

warranted life imprisonment instead of death. Tex. Code Crim. Proc. art. 

37.071, § 2(b)(1), (e). During this proceeding, the state elicited testimony from 

Dr. Walter Quijano, a clinical psychologist, about the likelihood of Saldaño’s 

future dangerousness. Dr. Quijano testified that Saldaño’s race (Hispanic) 

made him more likely to commit acts of violence in the future. The jury found 

that (1) there was a probability that Saldaño would commit criminal acts of 

violence constituting a threat to society, and (2) mitigating circumstances did 

not warrant life imprisonment rather than the death penalty. Accordingly, the 

trial court sentenced Saldaño to death. 

On direct appeal, Saldaño challenged Dr. Quijano’s racist testimony. The 

Texas Court of Criminal Appeals (“TCCA”) affirmed the sentence. After the 

Texas Attorney General confessed error, however, the Supreme Court vacated 

the judgment and remanded the case back to the TCCA for further 

consideration. Saldano v. Texas, 530 U.S. 1212 (2000). On remand, the TCCA 

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again affirmed the sentence. Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. 

App. 2002).

Saldaño then filed a federal habeas petition. After the Attorney General 

again confessed constitutional error, the district attorney responsible for 

prosecuting Saldaño tried to intervene in order to defend the death sentence. 

See Saldano v. Roach, 363 F.3d 545, 550 (5th Cir. 2004). The district court 

denied this motion to intervene and granted Saldaño’s habeas petition, finding 

that “the admission of and reference to expert opinion testimony to the effect 

that a person is more likely to be dangerous in the future because he is a 

member of a racial or ethnic group that happens to be over-represented in the 

prison population is constitutional error.” Saldano v. Cockrell, 267 F. Supp. 2d 

635, 642 (E.D. Tex. 2003). This Court affirmed the district court’s denial of the 

motion to intervene and dismissed the district attorney’s appeal of the order 

granting habeas relief. Saldano, 363 F.3d at 556. Accordingly, Saldaño was 

granted a new punishment trial.

B. Saldaño’s Punishment Retrial

Saldaño’s punishment retrial took place in November 2004. By that time, 

Saldaño’s mental health had appeared to deteriorate. For example, Saldaño 

attempted to commit suicide in 2001; his behavior grew erratic and his speech 

disorganized; he often refused to shower; he reported hearing voices; and he 

ate his own feces. Saldaño started misbehaving as well: among other things, 

he started fires in his cell; masturbated in public; and threw feces at prison 

guards. 

Mental health professionals disagreed on why Saldaño’s mental state 

had appeared to deteriorate. Dr. Orlando Peccora, a psychiatrist who treated 

Saldaño at the Jester IV Psychiatric Facility of the Texas Department of 

Criminal Justice (“TDCJ”), submitted a declaration in which he diagnosed 

Saldaño with depression which “sometimes involved psychotic ideations, 

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hallucinations and delusions.” Dr. Peccora also noted Saldaño’s “diminished 

cognitive ability” and “diminished ability to react in emotionally appropriate 

fashion to events around him,” although he did not believe Saldaño was 

incompetent. Dr. Peccora attributed Saldaño’s misbehavior on death row to his 

mental deterioration, and attributed his mental deterioration to the isolation 

of death row. Some TDCJ doctors diagnosed Saldaño with forms of psychosis—

specifically, schizophrenia and schizoaffective disorder, which involve 

cognitive and behavioral dysfunction. Am. Psychiatric Ass’n, Diagnostic and 

Statistical Manual of Mental Disorders 99–101, 105–07 (5th ed. 2013). Other

TDCJ doctors, however, diagnosed Saldaño with antisocial personality 

disorder. In their opinion, the hallucinations, delusions, and suicidal ideations

Saldaño reported were fabricated in order to obtain drugs. 

Saldaño’s mental state was a recurring issue throughout the punishment 

retrial. Indeed, the record reflects Saldaño’s abnormal behavior during voir 

dire and the trial itself: Saldaño masturbated inside his prison clothes before 

the jury on several occasions; he refused to wear nonprison clothes; and during 

voir dire, he read magazines and at one point yawned loudly. In addition, 

Saldaño did not always speak coherently. For example, the following exchange 

occurred after the first masturbation incident:

[THE COURT:] So, having said all that, [counsel] has said that you 

intend not to act out anymore in the courtroom. Is that correct?

THE DEFENDANT: (No audible response)

THE COURT: You intend to do—

THE DEFENDANT: (In English) Well, according—according by 

the Supreme Court of the United States, the rules of the law will 

be provided in this case, according by—according by the rule of the 

law.

THE COURT: I’m not—go ahead.

THE DEFENDANT: (In English) You believe in the Texas Penal 

Code is (unintelligible).

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THE COURT REPORTER: I can’t understand what he’s saying, 

Judge.

THE COURT: I’m sorry. I could not understand either.

THE DEFENDANT: (unintelligible)

THE INTERPRETER: Five years for murder; for manslaughter.

THE DEFENDANT: (In English) According by the—by the rule—

the Texas Penal Code, so at this point what I—I agree with 

everything you do right. You do everything right. I—

THE COURT: Well, I appreciate that.

The trial transcript is littered with other instances of incoherent or disordered 

speech.

The record also reflects the judge’s and counsel’s concerns about 

Saldaño’s mental state. During voir dire, on October 5, 2004, Saldaño’s counsel 

raised the issue of competency with the court after receiving Dr. Peccora’s 

declaration and noting Saldaño’s strange behavior. The judge gave defense 

counsel authority to seek a competency evaluation. The judge inquired about 

the status of this evaluation a couple days later. Defense counsel again 

requested a competency evaluation after one of the masturbation incidents. 

But the two psychiatrists who examined Saldaño a total of three times during 

the trial found him competent each time.1 Therefore, defense counsel never 

requested a competency hearing, and the judge indicated near the end of the 

trial that he had no reason to believe Saldaño was legally incompetent. 

Although defense counsel never argued that Saldaño was incompetent, 

counsel did argue in a pretrial motion that (1) retrying Saldaño after years of 

mental deterioration while on death row was unconstitutional, and 

 

1 The results of the examinations are not in the record. Moreover, it is unclear whether 

the psychiatrists actually examined Saldaño in person; when defense counsel first brought 

up the issue of competency on October 5, defense lawyer John Tatum stated that they would 

direct a psychiatrist “to make the inquiry, evaluation, solely based on this affidavit of a 

treating psychiatrist”—seemingly referring to Dr. Peccora’s declaration. 

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(2) evidence of Saldaño’s misbehavior while on death row (which featured 

prominently in the state’s case for future dangerousness) should be excluded. 

At the November 5, 2004 hearing on this motion, the defense sought to put Dr. 

Peccora on the stand. But the trial court ruled that under Lagrone v. State, 942 

S.W.2d 602 (Tex. Crim. App. 1997), the state must have an opportunity to 

examine Saldaño with its own expert before the defense expert could testify 

about Saldaño’s mental state. Defense counsel expressed concern that a 

Lagrone examination “could actually be used against [Saldaño] at trial”; 

accordingly, counsel invoked Saldaño’s Fifth Amendment right and refused to 

give the state an opportunity to conduct a Lagrone examination. 

Defense counsel later filed a motion seeking to limit the scope of a 

Lagrone examination, which the trial court denied on November 12, 2004. At 

that time, the trial court clarified that if Dr. Peccora were to testify on 

Saldaño’s behalf, then the state would be able to introduce its own expert 

testimony “about anything relevant to his mental state, including future 

dangerousness.” Defense counsel again chose not to put Dr. Peccora on the 

stand. Likewise, defense counsel declined to put Saldaño’s mother before the 

jury because she too intended to testify about Saldaño’s mental state. The 

defense’s case for mitigation focused on Saldaño’s intoxication when he 

committed the crime, his lack of a prior criminal record, and the fact that it 

was his co-defendant’s idea to commit the crime. As in the first trial, the jury 

answered the two special issues such that the court imposed the death penalty. 

Defense counsel then filed a motion for a new trial, which the trial court 

denied. On direct appeal, the TCCA affirmed Saldaño’s sentence. Saldano v. 

State, 232 S.W.3d 77, 82 (Tex. Crim. App. 2007).

C. Habeas Petitions

Saldaño filed a petition for habeas corpus in state court on February 15, 

2007. He raised a number of grounds for relief, including ineffective assistance 

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of trial counsel, incompetency to stand trial, and the trial court’s failure to hold 

a competency hearing. Saldaño offered several affidavits in support of his 

petition, including one by psychiatrist Dr. Robert Cantu who opined that 

Saldaño was incompetent at the punishment retrial. The state trial court 

issued 511 findings of fact and conclusions of law and recommended denying 

relief. The TCCA adopted the state trial court’s findings except for the findings

that Saldaño forfeited his competency claim by failing to raise it on direct 

review. Ex parte Saldano, No. WR-41,313-04, 2008 WL 4727540, at *1 (Tex. 

Crim. App. Oct. 29, 2008) (per curiam) (not designated for publication). 

Saldaño filed a second petition in state court on October 30, 2007, claiming 

ineffective assistance of counsel for failure to preserve issues related to 

Lagrone; the TCCA denied this petition as an abuse of the writ. Ex parte 

Saldano, No. WR-41,313-03, 2008 WL 152732, at *1 (Tex. Crim. App. Jan. 16, 

2008) (per curiam) (not designated for publication).

Saldaño filed his federal habeas petition on October 26, 2009. He raised

fifteen claims, including ineffective assistance of counsel, incompetency to 

stand trial, and claims related to the trial court’s application of Lagrone and 

Texas’s future dangerousness inquiry as well as the trial court’s failure to hold 

a competency hearing. The district court denied relief on all grounds but 

dismissed without prejudice Saldaño’s claim that he may not be executed on

account of present incompetency. The court also declined to issue a COA on 

any of Saldaño’s claims. 

II. STANDARD OF REVIEW

Saldaño’s habeas petition is governed by provisions of the Antiterrorism 

and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a federal court 

may not grant habeas relief to a state prisoner whose claim was adjudicated 

on the merits in state court unless the state court’s decision was either

(1) “contrary to, or involved an unreasonable application of, clearly established 

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Federal law” or (2) “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).

Before a state prisoner may appeal a district court’s denial of his habeas 

petition, he must first obtain a COA. 28 U.S.C. § 2253(c)(1). The court may 

issue a COA “only if the applicant has made a substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The required substantial 

showing of the denial of a constitutional right must have some footing in the 

law.” Ruiz v. Davis, 850 F.3d 225, 228 (5th Cir.), cert. dismissed, 137 S. Ct. 

1393 (2017).

The Supreme Court has recently cautioned that “[t]he COA inquiry . . .

is not coextensive with a merits analysis.” Buck v. Davis, 137 S. Ct. 759, 773 

(2017). “At the COA stage, the only question is whether the applicant has 

shown that ‘jurists of reason could disagree with the district court’s resolution 

of his constitutional claims or that jurists could conclude the issues presented 

are adequate to deserve encouragement to proceed further.’” Id. (quoting 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). If the district court dismisses 

a claim on procedural grounds, a COA should only issue if (1) “jurists of reason 

would find it debatable whether the petition states a valid claim of the denial 

of a constitutional right” and (2) “jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “Where the petitioner faces the death 

penalty, any doubts as to whether a COA should issue must be resolved in the 

petitioner’s favor.” Rhoades v. Davis, 852 F.3d 422, 427 (5th Cir. 2017) (quoting 

Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015)).

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III. DISCUSSION

A. Lagrone Issues

The first three issues raised on appeal concern the state trial court’s 

application of Lagrone. On direct appeal, the TCCA found that Saldaño failed 

to preserve his Lagrone claims by not making contemporaneous objections. 

Saldano, 232 S.W.3d at 88. Accordingly, the district court held that these 

claims are procedurally barred. The district court also found that Saldaño’s

Lagrone claims “involve nothing more than the application of state law.”

Saldaño first challenges the district court’s finding that his Lagrone

claims are procedurally barred. Second, Saldaño argues that the trial court’s 

application of Lagrone violated his Fifth and Sixth Amendment rights, an issue 

that the district court did not address on the merits. Third, Saldaño argues 

that the district erred in finding that his Lagrone claims involve nothing more 

than the application of state law. At the COA stage, all three of these issues 

hinge on whether Saldaño “has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). This he has failed to do.

We address Saldaño’s Sixth Amendment claim first. Saldaño argues that 

the trial court violated the Sixth Amendment when it failed to inform defense 

counsel about the scope of the state’s Lagrone examination. This claim is based 

on Powell v. Texas, 492 U.S. 680 (1989) (per curiam). There, the trial court 

ordered a psychiatric examination to determine the defendant’s competency

and sanity. Id. at 681. The state later used evidence from this examination to 

show future dangerousness. Id. at 682. The Court held that this was error 

because defense counsel was not informed that the examination would be used 

for this purpose. Id. at 686. Accordingly, “the evidence of future dangerousness 

was taken in deprivation of petitioner’s right to the assistance of counsel” 

under the Sixth Amendment. Id. (citing Satterwhite v. Texas, 486 U.S. 249 

(1988); Estelle v. Smith, 451 U.S. 454 (1981)). Here, however, Powell is 

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inapposite because defense counsel was clearly aware of the potential scope of 

a Lagrone examination. Counsel noted at the pretrial hearing that a 

psychiatric examination by the state “could actually be used against him at 

trial. Faced with that possibility, we can’t have . . . our defendant examined for 

the purposes of this pretrial motion. It’s just a risk that we can’t run.” 

Moreover, the judge later clarified that Dr. Peccora’s testimony at trial “would 

probably open everything up,” meaning the state’s “witness would be entitled 

to testify about anything relevant to [Saldaño’s] mental state, including future 

dangerousness.” Thus, reasonable jurists would not debate that Saldaño has 

failed to state a valid claim of the denial of his Sixth Amendment right to 

effective assistance of counsel. 

Saldaño’s Fifth Amendment claim challenges the trial court’s refusal to 

limit the scope of the Lagrone examination. It is well-established that “[a]

criminal defendant, who neither initiates a psychiatric evaluation nor 

attempts to introduce any psychiatric evidence, may not be compelled to 

respond to a psychiatrist if his statements can be used against him at a capital 

sentencing proceeding.” Smith, 451 U.S. at 468. But “a different situation 

arises where a defendant intends to introduce psychiatric evidence at the 

penalty phase.” Id. at 472. “If a defendant requests an examination on the issue 

of future dangerousness or presents psychiatric evidence at trial, the defendant 

may be deemed to have waived the fifth amendment privilege.” Vanderbilt v. 

Collins, 994 F.2d 189, 196 (5th Cir. 1993). Nonetheless, “testimony based on a 

court-ordered psychiatric evaluation is admissible only for a ‘limited rebuttal 

purpose.’” Kansas v. Cheever, 134 S. Ct. 596, 603 (2013) (quoting Buchanan v. 

Kentucky, 483 U.S. 402, 424 (1987)).

Here, Saldaño intended to offer Dr. Peccora’s testimony in support of two 

legal arguments made in a pretrial motion: (1) the future dangerousness 

inquiry was unconstitutional as applied to Saldaño; and (2) the state should 

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not be able to use evidence of Saldaño’s misbehavior on death row to show 

future dangerousness. Defense counsel did not intend to offer this testimony 

at the trial itself. The trial court held that under Lagrone, the state must have 

an opportunity to rebut Dr. Peccora’s testimony by having its own expert 

examine Saldaño.2 The trial court also indicated that the state would be able 

to use the Lagrone examination in the trial itself to show future 

dangerousness. So defense counsel opted not to submit Saldaño to a psychiatric 

examination by the state, and Dr. Peccora was unable to testify in support of 

Saldaño’s pretrial motion.

The trial court may have erred in suggesting that submitting to a 

Lagrone examination for purposes of the pretrial motion would open up the 

issue of Saldaño’s mental state at the trial itself. A state may not use evidence 

from a compelled psychiatric examination for any purpose whatsoever because 

“[s]ubmitting to a psychiatric or psychological examination does not itself 

constitute a waiver of the fifth amendment’s protection.” Battie v. Estelle, 655 

F.2d 692, 702 (5th Cir. 1981); see also Lagrone, 942 S.W.2d at 611 (noting that 

“the defendant has not actually waived his Fifth Amendment rights until he 

has actually presented expert testimony on the issue of future dangerousness 

at trial”). Instead, “testimony based on a court-ordered psychiatric evaluation 

is admissible only for a ‘limited rebuttal purpose.’” Cheever, 134 S. Ct. at 603 

(quoting Buchanan, 483 U.S. at 424). The scope of a Fifth Amendment waiver 

is also “limited to the issue raised by the defense.” Williams v. Lynaugh, 809 

F.2d 1063, 1068 (5th Cir. 1987) (citing Vardas v. Estelle, 715 F.2d 206, 209–10

(5th Cir. 1983)). If Saldaño had not introduced psychiatric testimony at trial 

 

2 We have previously held that requiring a defendant “to undergo a psychiatric 

examination as a condition upon his offering psychiatric evidence” does not violate the Fifth 

Amendment. United States v. Hall, 152 F.3d 381, 400 (5th Cir. 1998), abrogated on other 

grounds by United States v. Martinez-Salazar, 528 U.S. 304 (2000).

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(again, he had no intention to do so), then the state would have nothing to 

rebut. Accordingly, merely submitting to the Lagrone examination may not 

have opened up the issue of Saldaño’s mental state at trial.

Nevertheless, Texas offers an additional reason to reject Saldaño’s 

constitutional claims: the trial court’s error, if any, was harmless. Under the 

“actual prejudice” test set out in Brecht v. Abrahamson, 507 U.S. 619, 637 

(1993), habeas “relief is proper only if the federal court has ‘grave doubt about 

whether a trial error of federal law had substantial and injurious effect or 

influence in determining the jury’s verdict,’” Davis v. Ayala, 135 S. Ct. 2187, 

2197–98 (2015) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). “There 

must be more than a ‘reasonable possibility’ that the error was harmful.” Id. 

(quoting Brecht, 507 U.S. at 637).

Texas argues that the trial court’s Lagrone rulings were harmless 

“because Dr. Peccora’s testimony would not have led to a different ruling on 

Saldaño’s pretrial motion.” We find that all reasonable jurists would agree. 

Had he testified, Dr. Peccora would have attributed Saldaño’s bad acts while 

on death row to his mental deterioration, which in turn he would have

attributed to the isolation of death row itself. This testimony was not 

absolutely critical to Saldaño’s motion; Saldaño presented another witness—

Susan Perryman-Evans—who also suggested that Saldaño’s bad acts were 

caused by the severe isolation of death row. Additionally, Dr. Peccora, having

treated Saldaño from 1997 or 1998 to 2001, could offer only a snapshot of 

Saldaño’s mental health. As a state psychiatrist noted in his November 12, 

2004 affidavit, a psychiatric evaluation from 1996 indicated that Saldaño 

suffered from an antisocial personality disorder even before his time on death 

row. The state could have used this fact to rebut Dr. Peccora’s testimony. 

Finally, the claims made in Saldaño’s pretrial motion, which are essentially 

identical to the future dangerousness issues discussed below, lacked legal 

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support. We find that jurists of reason would agree that there is no reasonable 

probability of a different result had the trial court properly limited the scope 

of a Lagrone examination. Thus, reasonable jurists would not debate that the 

trial court’s error was harmless and that Saldaño has failed to state a valid 

claim of the denial of his Fifth Amendment right against self-incrimination.

We deny a COA on Saldaño’s first three issues. 

B. Future Dangerousness Issues

Saldaño’s fourth, fifth, and sixth issues all relate to Texas’s future 

dangerousness inquiry. As to Saldaño’s fourth issue, he claims that “[i]t 

violates basic notions of fairness for a State to impose a death sentence tainted 

with racist testimony, battle for eight years to prevent its being set aside while 

the prisoner mentally decompensates in severe isolation, and then to subject 

the now mentally ill defendant to a new death penalty sentencing where the 

key issue is the defendant’s future dangerousness.” Although this was one of 

the grounds upon which Saldaño’s pretrial motion (discussed above) was based, 

Saldaño failed to raise this claim before the district court. Thus, we find that 

it is waived. See Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007).

On the merits, we note that Saldaño cites no applicable law in support 

of his fourth claim. He merely analogizes this case to other situations, such as

the forced administration of antipsychotic drugs, see Riggins v. Nevada, 504 

U.S. 127 (1992), and the state’s failure to provide a speedy trial, Doggett v. 

United States, 505 U.S. 647 (1992). These analogies fall short of “[t]he required 

substantial showing of the denial of a constitutional right,” which “must have 

some footing in the law.” Ruiz, 850 F.3d at 228. Additionally, Saldaño’s 

argument against a punishment retrial flies in the face of the well-established 

rule that the government may retry persons whose convictions have been 

overturned due to constitutional error in prior proceedings. United States v. 

Tateo, 377 U.S. 463, 468 (1964). We deny a COA on Saldaño’s fourth issue.

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As to Saldaño’s fifth issue, he claims that Texas’s future dangerousness 

inquiry is unconstitutionally vague in his case. The district court rejected this 

claim on the merits. The district court noted, and Saldaño concedes, that this 

Court has upheld Texas’s future dangerousness special issue against facial 

attacks. See, e.g., Scheanette v. Quarterman, 482 F.3d 815, 827–28 (5th Cir. 

2007); Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005). Moreover, Saldaño’s 

challenge focuses on how Texas law is unfair rather than explaining how Texas 

law is vague. As the district court found, “whether it was fair for the jury to 

consider [evidence of bad acts on death row] has nothing to do with whether 

the statute is unconstitutionally vague.” We deny a COA on Saldaño’s fifth 

issue.

As to Saldaño’s sixth issue, he articulates a fruit of the poisonous tree 

argument. He argues that admitting evidence of Saldaño’s bad acts on death 

row violated the Fourteenth Amendment because this evidence “was obtained 

through the State’s own misconduct”—namely, the prosecution’s use of racist 

testimony to sentence him to death.3 The district court found that this claim 

(like the Lagrone claims discussed above) is procedurally barred and involves

nothing more than the application of state law. Even if reasonable jurists could 

disagree on the district court’s procedural holdings, reasonable jurists would 

not debate that Saldaño’s sixth claim fails on the merits. Saldaño analogizes 

this case to the Fourth Amendment exclusionary rule, see Wong Sun v. United 

 

3 Separately, Saldaño suggests that it was error to reveal that Saldaño’s bad acts were 

committed on death row. But Saldaño did not raise this claim below. He did point out that 

“[a]llowing the jury to hear of his incarceration on Death Row and his conduct therefrom is 

the equivalent of allowing the jury to hear of an invalid prior conviction,” but did so in 

connection with the argument that admitting evidence of his bad acts while on death row was 

prejudicial. Because Saldaño did not claim that allowing the jury to hear of his prior sentence 

of death was error in and of itself, we find that this argument is waived on appeal. See

Johnson, 483 F.3d at 288. Moreover, we note that defense counsel, over the state’s objection, 

chose to introduce Saldaño’s presence on death row to the jury.

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States, 371 U.S. 471 (1963), but points to no court that has extended the 

exclusionary rule to this context. And Saldaño’s discussion of Texas Rule of 

Evidence 403 is neither tethered to any federal constitutional right nor 

supported by Texas state law. Accordingly, while Saldaño’s argument sounds 

in constitutional principles, it has no firm basis in the law. We deny a COA on 

Saldaño’s sixth issue.

C. Competency

Saldaño’s seventh issue pertains to his competency to stand trial and the 

trial court’s failure to hold a competency hearing. The state habeas court found 

that Saldaño was competent to stand trial and that the trial court was not 

obligated to hold a competency hearing. The district court agreed that the trial 

court was not obligated to hold a competency hearing, and held that the state 

habeas court’s finding on Saldaño’s competency was reasonable. 

It is axiomatic that “the Constitution does not permit trial of an 

individual who lacks ‘mental competency.’” Indiana v. Edwards, 554 U.S. 164, 

170 (2008). A person lacks mental competency if “he lacks the capacity to 

understand the nature and object of the proceedings against him, to consult 

with counsel, and to assist in preparing his defense.” Drope v. Missouri, 420 

U.S. 162, 171 (1975). Additionally, a trial judge must sua sponte hold a 

competency hearing “[w]here the evidence raises a ‘bona fide doubt’ as to a 

defendant’s competence to stand trial.” Pate v. Robinson, 383 U.S. 375, 385 

(1966). “In determining whether there is a ‘bona fide doubt’ as to the 

defendant’s competence,” a trial court should consider “(1) any history of 

irrational behavior, (2) the defendant’s demeanor at trial, and (3) any prior 

medical opinion on competency.” Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 

2000). “[E]ven one of these factors standing alone may, in some circumstances, 

be sufficient” to raise a bona fide doubt. Drope, 420 U.S. at 180.

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Here, as the district court and state habeas court discussed, several facts 

support an inference of competency. First, two psychiatrists examined Saldaño 

a total of three times during the trial and found him competent every time. 

Second, prison records show that Saldaño was examined by a number of 

psychiatrists while on death row; some of these psychiatrists found that 

Saldaño was malingering, i.e., his psychotic symptoms were faked in order to 

obtain drugs. Third, the trial judge indicated near the end of the trial, after 

interacting with Saldaño for several weeks, that he had no reason to believe 

Saldaño was incompetent. 

At the same time, ample evidence supports an inference of incompetency. 

For example, Saldaño’s repeated masturbation in the courtroom, refusal to 

wear nonprison clothes, lack of attention during voir dire, laughter during 

testimony, and rocking back and forth in his chair suggest that he may not 

have understood the nature of the proceedings. Saldaño’s broken and 

sometimes incoherent speech suggests that he may not have been able to 

communicate effectively. Indeed, one of Saldaño’s own trial attorneys, John 

Tatum, stated in an affidavit that Saldaño lacked sufficient ability to consult 

with counsel and did not understand the proceedings. Juan Carlos Vega, an 

Argentine attorney who attended the trial, agreed that Saldaño was 

incompetent to stand trial. Vega also noted that during his personal interview 

with Saldaño in jail, Saldaño’s “words were incongruous and every three 

minutes he would say: ‘May the Lord be welcome.’” Additionally, Saldaño had 

a long history of irrational behavior, including eating his own feces and 

masturbating in public. Joe MacLoughlin, an employee of the Argentine 

consulate who met with Saldaño on numerous occasions, noted Saldaño’s 

mental deterioration during his time on death row. According to MacLoughlin, 

Saldaño appeared mentally stable in 1999 and 2000; starting in 2001, however, 

Saldaño began to exhibit “thought disorders and irrational speech” and other 

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“signs of mental illness and apparent psychotic behavior.” Some TDCJ doctors 

even diagnosed Saldaño with schizophrenia or schizoaffective disorder. Based 

on these records as well as personal interviews, Dr. Cantu expressed the 

opinion that Saldaño suffered from psychosis and was incompetent to stand 

trial in 2004. 

In determining that the trial court was not obligated to hold a 

competency hearing, the state habeas court focused on two facts: (1) two 

experts who examined Saldaño during the trial deemed him competent; and 

(2) the trial judge stated he had no reason to believe Saldaño was incompetent. 

There are several potential issues with the state habeas court’s analysis. First, 

the results of the psychiatric examinations upon which the court relied are not 

in the record. Indeed, as discussed above, it is possible that these psychiatrists 

did not even examine Saldaño in person. Second, the state habeas court 

essentially disregarded prior diagnoses of psychosis, holding that these 

diagnoses “do not, alone, require a competency hearing.” The court also found 

these diagnoses “specifically discredited” by other TDCJ doctors, but did not 

explain why it regarded some diagnoses as superior to others. Third, the state 

habeas court regarded Saldaño’s courtroom behavior as “inappropriate . . . but 

not bizarre” without explaining why the distinction mattered. Finally, the state 

habeas court appeared to ignore Saldaño’s history of irrational behavior. 

Reasonable jurists would debate whether the state habeas court’s factual 

findings were unreasonable in light of the evidence, and whether the court 

unreasonably applied Pate and Drope by not weighing Saldaño’s history of 

irrational behavior, demeanor at trial, and prior diagnoses of psychosis against 

the opinions of the trial judge and the experts who examined Saldaño during 

trial.

In determining that Saldaño was competent, the state habeas court 

found that Saldaño could consult with counsel and understand the nature of 

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the proceedings. The numerous instances of Saldaño’s incoherent or disordered 

speech, his strange behavior, and the affidavits of several individuals who 

interacted with Saldaño around the time of trial belie the court’s findings. 

Reasonable jurists would debate whether the state court’s factual findings are 

unreasonable in light of this evidence. 

Accordingly, we grant a COA on Saldaño’s seventh issue.

D. Ineffective Assistance of Counsel

Saldaño’s final issue relates to ineffective assistance of trial counsel. 

Saldaño argues that trial counsel was deficient in (1) failing to present 

mitigating evidence to the jury, (2) failing to preserve for appellate review 

objections to the trial court’s application of Lagrone, and (3) failing to request 

a competency hearing. 

The Sixth Amendment guarantees a criminal defendant’s right to 

counsel. U.S. Const. amend. VI. To establish ineffective assistance of counsel, 

Saldaño must show both that “counsel’s performance was deficient” and that 

this “deficient performance prejudiced the defense.” Strickland v. Washington,

466 U.S. 668, 687 (1984). Under the first prong of the Strickland test, counsel’s 

performance was only deficient if it “fell below an objective standard of 

reasonableness.” Id. at 688. 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.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). To 

show prejudice under the second prong of the Strickland test, there must be “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.

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1. Failure to Introduce Mitigating Evidence

With regard to mitigating evidence, Saldaño argues that trial counsel 

should have (a) introduced mental health evidence at trial, (b) put Saldaño’s 

mother, Lidia Guerrero, on the stand, and (c) moved for a continuance so that 

Saldaño’s sister Ada could testify,4 or in the alternative deposed her.5

The state habeas court found that trial counsel “made a reasonable 

strategic decision” not to introduce evidence of Saldaño’s mental deterioration 

because doing so would allow the state to introduce evidence suggesting that 

Saldaño was merely malingering. The state could point to diagnoses of 

antisocial personality disorder made by treating physicians as well as 

observations of manipulative, drug-seeking behavior. Trial counsel Rick 

Harrison further explained that they did not put Guerrero on the stand 

because she intended to testify that Saldaño was mentally ill—again opening 

the door to the state’s evidence of malingering. Reasonable jurists would agree 

that trial counsel’s choice not to introduce mental health evidence or put 

Guerrero on the stand was reasonably strategic and therefore not deficient 

under Strickland.

The state habeas court found that Ada Saldaño’s testimony was not 

clearly mitigating. Ada could have testified about Saldaño’s troubled youth, 

but Saldaño does not explain how Ada’s testimony would bear on the future 

dangerousness inquiry. Jurists of reason would agree there is no reasonable 

probability that Ada’s testimony would have changed the jury’s verdict.

 

4 At the time, Ada was pregnant and unable to travel to the United States in order to 

testify at her brother’s punishment retrial. 

5 Saldaño also suggests that the trial counsel should have put an Argentine consular 

employee, Joe MacLoughlin, on the stand. But Saldaño did not make this argument before 

the district court; accordingly, we find that it is waived. Moreover, it is unclear what 

MacLoughlin would have testified about, other than Saldaño’s mental decline.

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2. Failure to Preserve Lagrone Issues for Appellate Review

Saldaño next argues that trial counsel was ineffective in failing to 

preserve Lagrone issues for appellate review. The district court held that this 

claim is procedurally defaulted because the TCCA dismissed the claim as an 

abuse of the writ. Saldano, 2008 WL 152732. As discussed above, reasonable 

jurists would not debate that Saldaño’s Lagrone claims are largely meritless. 

And reasonable jurists would agree that the one claim that does have merit—

his Fifth Amendment claim—fails because the trial court’s error was harmless. 

Thus, jurists of reason would agree there is no reasonable probability that 

preserving the Lagrone issues for appellate review would have changed the 

outcome of this case.

3. Failure to Request a Competency Hearing

Finally, Saldaño argues that trial counsel was ineffective in failing to 

request a competency hearing. The state habeas court found that requesting a 

competency hearing would have been futile because two experts opined that 

Saldaño was competent during trial. The district court agreed, and also noted 

that trial counsel appropriately and sufficiently investigated Saldaño’s 

competency.

Trial counsel has a duty to investigate a defendant’s mental health if “he 

has reason to believe that the defendant suffers from mental health problems.” 

Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004); see also Bouchillon v. 

Collins, 907 F.2d 589, 595–97 (5th Cir. 1990) (counsel was ineffective in failing 

to investigate defendant’s competency in light of defendant’s known history of 

institutionalization). The Third Circuit has held that where “there are 

sufficient indicia of incompetence to give objectively reasonable counsel reason 

to doubt the defendant’s competency,” counsel is deficient if he fails to request 

a competency hearing. Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001); accord

Burt v. Uchtman, 422 F.3d 557, 569 (7th Cir. 2005) (concluding “that in light 

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of the overwhelming evidence of [defendant’s] psychological problems and 

heavy medication, counsel’s failure to request a new competency hearing was 

deficient performance”). But “[t]here can be no deficiency in failing to request 

a competency hearing where there is no evidence of incompetency.” McCoy v. 

Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989). Moreover, “the Sixth Amendment 

does not require counsel to continue searching until they find an expert willing 

to provide more beneficial testimony on their behalf.” Dowthitt v. Johnson, 230 

F.3d 733, 745 n.10 (5th Cir. 2000).

Here, Saldaño’s history of irrational behavior, his demeanor at trial, and 

Dr. Peccora’s report gave defense counsel reason to believe Saldaño suffered 

from mental health problems. Trial counsel did investigate these problems by 

having Saldaño examined by mental health experts three times during the 

trial, and these experts deemed Saldaño competent. Based on these facts, 

Texas argues that counsel’s failure to request a competency hearing was not 

deficient. But the results of the psychiatric examinations commissioned during 

trial are not in the record, and it is possible that the psychiatrists did not even 

examine Saldaño in person. Additionally, at least one of the trial lawyers—

John Tatum—believed that Saldaño was incompetent to stand trial. And ample 

evidence, from prior diagnoses of psychosis to Saldaño’s behavior at trial, 

supported this belief. In light of this evidence, there may have been “sufficient 

indicia of incompetence to give objectively reasonable counsel reason to doubt 

the defendant’s competency.” Jermyn, 266 F.3d at 283. We find that reasonable 

jurists would debate the state habeas court’s finding that trial counsel’s failure 

to request a competency hearing in light of this evidence was not deficient.

To show prejudice, Saldaño must demonstrate a reasonable probability 

that the trial court would have found him incompetent had counsel requested 

a competency hearing. Felde v. Butler, 817 F.2d 281, 282 (5th Cir. 1987); accord 

Burt, 422 F.3d at 567 (“Where a defendant argues that he should have received 

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a fitness hearing, we have interpreted the prejudice inquiry as asking whether 

there is a reasonable probability the defendant would have been found unfit 

had a hearing been held.”). We have already found that reasonable jurists 

would debate the state habeas court’s finding that Saldaño was competent. 

Likewise, reasonable jurists would debate whether there is a reasonable 

probability that the trial court would have found Saldaño incompetent had 

counsel requested a competency hearing. We grant a COA on Saldaño’s eighth 

issue, though only with respect to counsel’s failure to request a competency 

hearing.

IV. CONCLUSION

For the foregoing reasons, we GRANT a COA on Saldaño’s competency

claim—including both whether he was incompetent to stand trial and whether 

the trial court should have held a competency hearing—and his claim of 

ineffective assistance with respect to counsel’s failure to request a competency 

hearing. Counsel for Saldaño should submit a merits brief on these two issues 

within 30 days. Counsel for the state should respond within 15 days thereafter. 

We DENY a COA on Saldaño’s other claims.

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