* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70005

YOSVANNIS VALLE

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

4:06-cv-03867

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Yosvannis Valle was convicted of murder and sentenced to death. The

district court denied his Petition for Writ of Habeas Corpus, denied a certificate

of appealability, and granted respondent Nathaniel Quarterman’s Motion for

Summary Judgment. Valle now seeks a certificate of appealability (“COA”) to

appeal the district court’s denial of habeas relief on three claims: (1) his Sixth

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2008

Charles R. Fulbruge III

Clerk
No. 08-70005

2

Amendment right to counsel was violated when his trial counsel failed to obtain

a psychological evaluation of him by a mental health professional and present

evidence of his post-traumatic stress disorder (“PTSD”); (2) he was denied due

process by the trial court’s exclusion as inadmissible hearsay of the audio and

transcript of an interview with petitioner’s mother; (3) his Eighth Amendment

rights were violated by Texas’s capital-sentencing statutory scheme, because it

does not assign a burden of proof to the mitigation special issue and does not

afford meaningful appellate review to the special issues of mitigation and future

dangerousness.

I

Yosvannis Valle seeks habeas corpus relief from his capital conviction for

the murder of Jose “Yogi” Junco. The jury found Valle guilty of capital murder

for intentionally causing Junco’s death while in the course of committing or

attempting to commit robbery. 

Atthe penalty phase of Valle’s trial,the State presented evidence of Valle’s

previous time in prison, as well as evidence linking Valle to three other murders.

The State demonstrated that Valle was a sergeant in a prison gang called La

Raza Unida and that he had possession of a “shank,” or homemade knife, during

his pretrial detention.

Valle presented evidence that he had been exposed to several family-risk

factors as a child growing up in Cuba. Dr. Richard Cervantes, a clinical

psychologist, testified that Valle had witnessed his mother forced in various

sexual acts by multiple partners, and that Valle was himself the victim of

physical abuse and severe poverty that led to his exhibiting aggressive behavior

later in life. Dr. Cervantes relied on his interviews with Valle and tapes of

interviews conducted with Valle’s mother and other relatives in Cuba by Dr.

Cervantes’s research assistant Edurna Imana. Valle offered into evidence a

videotaped interview with those relatives, but the trial court ruled that the
No. 08-70005

3

statements contained on the tape were inadmissible hearsay and ordered the

tape played without sound. Instead, Valle played the video portion of the tape

and Imana narrated its contents for the jury.

Valle’s brother Gabriel also testified as to the abusive circumstances of

their childhood in Cuba. Gabriel testified that their mother had attempted

suicide several times and that her boyfriends were violent towards her and her

sons.

The jury unanimously answered affirmatively to the questions of whether

the State proved beyond a reasonable doubt that: (1) Valle actually caused

Junco’s death, intended to kill Junco, or anticipated that human life would be

taken; and (2) Valle would commit future criminal acts of violence constituting

a continuing threat to society. The jury also unanimously concluded that the

mitigating evidence was insufficient to justify a life sentence. The trial court

subsequently sentenced Valle to death.

TheTexas Court of Criminal Appeals affirmed the conviction and sentence

and denied a writ of habeas corpus. Valle timely filed a petition for habeas

corpus in the District Court on 14 claims. Respondent Quarterman moved for

summary judgment. The District Court granted summary judgment, denied the

writ, and denied a COA. Valle now appeals for a COA from this court.

II

In order to appeal the district court’s denial of habeas relief, Valle must be

granted a COA as a “jurisdictional prerequisite.” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). A COA issues only if Valle makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542

U.S. 274, 282 (2004). The district court denied Valle’s constitutional claims on

the merits. Thus, Valle must show 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
No. 08-70005

4

further.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000)). A COA determination consists of an overview of the habeas claims and

a general assessment of their merits; we do not at this stage fully consider the

factual or legal bases that support the claims. Id. at 336. 

We review the district court’s resolution of Valle’s claims under the

deferential standard of the Antiterrorism and Effective Death Penalty Act

(AEDPA). Tennard, 542 U.S. at 282; Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.

2005). Under the AEDPA, a petitioner is granted relief on any issue adjudicated

in a state court proceeding only if (1) the state court’s decision was “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court”; or (2) the state court decision 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); see also Reed v. Quarterman,

504 F.3d 465, 471 (2007). 

Finally, “any doubt as to whether a COA should issue in a death penalty

case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782,

787 (5th Cir. 2005). 

A

Valle first seeks a COA on the issue of whether Valle’s Sixth Amendment

right to counsel was violated by his trial counsel’s failure to obtain a

psychological evaluation of him by a mental health professional and offer

evidence of Valle’s PTSD. 

We evaluate an ineffective-assistance-of-counsel claim under the twopronged test set out in Strickland v. Washington, 466 U.S. 668 (1984). First,

Valle must show that his attorney’s performance was deficient. The court

measures deficiency against an objective standard of reasonableness. Id. at

2064. In assessing the performance of trial counsel under Strickland, we accord

deference to the strategic decisions made by counsel, endeavoring to “eliminate
No. 08-70005

1 The state appeals court issued a summary order affirming the trial judge’s findings

of fact and conclusions of law as to Valle’s habeas petition. These findings and conclusions did

5

the distorting effects of hindsight,” Harrison v. Quarterman, 496 F.3d 419, 424

(5th Cir. 2007)(quoting Strickland, 466 U.S. at 690-91), and applying the

presumption that counsel’s performance “falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. Second, Valle

must show that the deficient performance prejudiced his defense. Id. at 687.

Prejudice is found when “there is a reasonable probability that, but for the

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

different.” Smith v. Quarterman, 515 F.3d 392, 404 (5th Cir. 2008)(citing

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

inquiry takes place in the context of a capital-sentencing hearing, the relevant

question is whether “there is a reasonable probability that, absent the errors, the

sentencer... would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695.

Valle argues that his trial counsel should not have relied solely on the

evidence provided by Dr. Cervantes as to the risk factors affecting his childhood

development and should have obtained a thorough examination of Valle by a

mental health professional. After trial, Valle was evaluated by Dr. Paula

Lundberg-Love, a psychologist who concluded that Valle suffered from PTSD

stemming from his childhood abuse. Dr. Lundberg-Love opined that the

symptoms of PTSD would cause Valle to take extreme measures to protect

himself and to lash out at perceived threats. Valle contends that this evidence

would have swayed a jury to find that mitigation to a life sentence was justified.

Valle’s trial counsel made the judgment not to obtain a psychological

evaluation before trial because of the possibility that the state trial court would

order a state-sponsored psychological examination pursuantto Lagrone v. State,

942 S.W.2d 602 (Tex. Crim. App. 1997). As the state court found,1 and the
No. 08-70005

not result from an evidentiary hearing but were essentially adopted from the State’s brief;

however, the State submitted an affidavit from Valle’s trial counsel confirming that the

decision not to use psychological evidence was a strategic one in light of Valle’s erratic and

violent tendencies and the State’s expressed desire to examine Valle pursuant to Lagrone. Aff.

of David Cunningham, Tr. R. 128.

6

district court affirmed, the trial counsel was justifiably concerned that such an

examination would reveal evidence regarding Valle’s violent behavior that would

damage his mitigation case. Valle v. Quarterman, No. H-06-cv-3867, 2008 WL

416241, *11 (S.D. Tex. 2008). Valle’s attorney instead put forth the evidence of

Dr. Cervantes as to Valle’s childhood, much of which was mirrored in Dr. Love’s

findings. The state court concluded that Dr. Cervantes’s evidence, which

included interviews with Valle’s relatives conducted in Cuba by his research

assistant, was thorough enough to warrant the decision by trial counsel not to

pursue a formal psychiatric evaluation. Valle’s trial counsel’s decision was

reasonable, and does not meet the standard for deficiency under the performance

prong of Strickland.

The decision by trial counsel not to have Valle examined by a mental

health professional also did not prejudice Valle’s defense. Dr. Love’s

examination elicited information about Valle’s childhood in Cuba that for the

most part had already been addressed in Dr. Cervantes’s trial testimony. The

only additional evidence that might have been derived from a pre-trial

psychiatric evaluation is the diagnosis of PTSD, which the district court noted

could just as easily have led the jury to conclude that Valle’s tendencies to lash

out violently constituted an ongoing threat to society. Valle, 2008 WL 416241,

at *13. The utility of the evidence about his mental health disorders is thus

marginal considered in light of the fact that it might have subjected Valle to

cross-examination about his ability to restrain his violent impulses. Valle has

failed to show a reasonable probability that the inclusion of the evidence of his

mental health disorders would have led to a different outcome. The district
No. 08-70005

7

court was correct in affirming the state court’s rejection of Valle’s ineffective

assistance of counsel claim. Reasonable jurists could not disagree with the

district court’s resolution of this question. 

B

The trial court excluded as inadmissible hearsay the audio portion of an

interview conducted with Valle’s mother in Cuba. The court also excluded a

transcript of that interview. Valle makes two arguments with respect to the

exclusion of the audio and transcript: one, that they should have been admitted

under an exception to the hearsay rule; and two, that Valle’s constitutional

interest in producing the mitigation evidence outweighed the State’s interest in

enforcing its hearsay rule. 

Valle appears to argue thatthe interview audio and transcript fall into two

exceptions to the hearsay rule: the “unavailability exception” and the basis-ofexpert-testimony exception. However, we are not in a position to evaluate this

claim as Valle failed to include any citation to relevant authorities or analysis.

See Pet’r’s Br. 20-22. The invocation of the expert-testimony exception appears

once and is not mentioned again in the brief. Because Valle failed to advance

any arguments in support of the issue, we consider the issue abandoned. See

Justiss Oil Co., Inc. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996);

see also FED. R. APP. P. 28 (requiring the brief to contain, inter alia, “the

argument, which must contain...appellant’s contentions and the reasons for

them, with citations to the authorities and part of the record on which the

appellant relies. . .”) 

Even if this issue had been properly briefed, Valle would still not succeed

on the merits. The district court reviewed the state habeas findings as to the

basis-of-expert-testimony exception in its opinion. There, Valle argued that the

interview testimony should have been included because Dr. Cervantes relied on
No. 08-70005

2 Rule 705(d) of the Texas Rules of Evidence provides:

When the underlying facts or data would be inadmissible in evidence, the court

shall exclude the underlying facts or data if the danger that they will be used

for a purpose other than as explanation or support for the expert’s opinion

outweighs their value as explanation or support or are unfairly prejudicial.

3 Texas Rule of Evidence 804(b)(3) states the following as exceptions to the hearsay rule

where the declarant is unavailable as a witness :

(A) A statement concerning the declarant’s own birth, adoption, marriage, divorce,

legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact

of personal or family history even though declarant had no means of acquiring personal

knowledge of the matter stated; or

8

it for his expert opinion as to the effects of Valle’s childhood.2 The state appeals

court found that the trial court had not committed an abuse of discretion in

excluding the audio and transcript, as there was a substantial risk that the jury

would treat the videotaped hearsay statements as substantive evidence rather

than information relied upon by the expert in formulating his opinion. Valle,

2008 WL 416241, at * 8; Valle v. State, 109 S.W.3d 500, 505-06 (Tex.Crim.App.

2003). The district court found, and we agree, that Valle has not shown that the

state appellate court’s application of the Texas evidentiary rule was incorrect.

Valle’s discussion of the “unavailability exception” to the hearsay rule

omits any reference to Texas evidence law, and ultimately does not actually

appear to argue that a hearsay exception applies. Instead, the brief states that

the audio and transcript of the interview with Valle’s mother verify other

testimony about Valle’s childhood and that their exclusion “allowed the State to

argue to the jury that there was no credible mitigating evidence produced by

Petitioner.” Pet’r’s Br. 21-22. Valle appears to reiterate the claim he raised

before the district court; namely, that the evidence is admissible under the

“Statement of Personal or Family History” exception found in Texas Rule of

Evidence 804, which requires a showing of unavailability.3 TEX. R. EVID.
No. 08-70005

(B) A statement concerning the foregoing matters, and death also, of another person,

if the declarant was related to the other by blood, adoption, or marriage or was so

intimately associated with the other’s family as to be likely to have accurate

information concerning the matter declared.

9

804(b)(3). Valle cannot prevail on this claim. Both the Texas Court of Criminal

Appeals and the district court properly applied Rule 804(b)(3), which only allows

statements about the fact of “birth, adoption, marriage, divorce, legitimacy,

relationship by blood, adoption, or marriage, ancestry,” or other similar facts.

The rule does not cover the interview testimony of Valle’s mother, which dealt

with, among other things, her medical problems, Valle’s childhood abuse, and his

problems with authority. Valle, 2008 WL 416241, at *7. Valle’s claim that a

hearsay exception applies therefore does not merit the grant of a COA.

As an alternative to his hearsay exception claim, Valle argues that he has

a due process interest in being able to provide evidence and witnesses on his

behalf, and that this interest outweighs the state’s competing interest in

enforcing the hearsay rule. Valle relies primarily upon Chambers v. Mississippi,

410 U.S. 284 (1973), which held that the application of the hearsay rule could

not be applied mechanistically where constitutional rights directly affecting the

determination of guilt are implicated. Id. at 302. The Court extended this

holding to the capital-sentencing contextin Green v. Georgia, 442 U.S. 95 (1979),

finding that application of Georgia’s hearsay rule violated due process where the

excluded evidence was “highly relevant to a critical issue in the punishment

phase ofthe trial... and substantial reasons existed to assume its reliability.” Id.

at 97. 

The district court engaged in a careful analysis that distinguished

Chambers and Green from this case. In both of those cases, there were strong

indicia of reliability, including (1)the existence of corroborating evidence; (2)the
No. 08-70005

10

fact that the statements at issue were made spontaneously to close

acquaintances after the murders; and (3) the fact that the statements were

“unquestionably against [the] interest” of the declarants. See Valle, 2008 WL

416241, at * 9 (citing Green, 442 U.S. at 96-97; Chambers, 410 U.S. at 299-300).

No comparable indicia are present here. 

This court has also limited Chambers and Green to their facts and has

interpreted them to mean that “certain egregious evidentiary errors may be

redressed by the due process clause.” Edwards v. Scroggy, 849 F.2d 204, 212

(5th Cir. 1988); see also McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir. 1999)

(holding that exclusion of hearsay testimony of expert psychologist during

punishment phase of trial was not “unnecessarily limiting, nor did it operate to

render [the] trial fundamentally unfair”). As reasonable jurists would not

disagree that there is nothing “fundamentally unfair” about the exclusion of

Valle’s mother’s hearsay testimony, we must deny a COA on this issue.

C

Valle also petitions for a COA to appeal the district court’s decision on the

constitutionality of Texas’s death penalty scheme, arguing that the “mitigation

special issue allows the state to introduce evidence that supports an affirmative

finding of future dangerousness without a burden of proof.” Pet’r’s Br. 30. This

is a misstatement, as the mitigation special issue is distinct from the futuredangerousness special issue. Valle appears to argue that the mitigation special

issue is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) and

Ring v. Arizona, 536 U.S. 584 (2002) because it does not require the State to

prove beyond a reasonable doubt the absence of those mitigating factors that

would warrant life imprisonment.
No. 08-70005

11

Under TEX. CODE CRIM. PROC. ANN. art. 30.071 §2(e), the jury is asked to

answer the following mitigation special issue: 

Whether, taking into consideration all of the evidence, including the

circumstances of the offense, the defendant’s character and background,

and the personal moral culpability of the defendant, there is a sufficient

mitigating circumstance or circumstances to warrant that a sentence of

life imprisonment without parole rather than a death sentence be

imposed.

See TEX.CODE CRIM.PROC.ANN. art. 37.071 § 2(e)(1) (Vernon 1999). If the

jury answers the special issue in the negative, the trial court must sentence the

defendant to death. If the jury answers in the affirmative or is unable to answer

the issue, the statute requires the trial court to sentence the defendant to

“confinement in the institutional division of the Texas Department of Criminal

Justice for life imprisonment without parole.” See id. § 2(g) (Vernon 1999).

Valle argues thatthis scheme means thatthe State can increase the defendant’s

authorized punishment from life imprisonment to death “contingent on” a

negative answer to the mitigation special issue and is thus required by Apprendi

and Ring to prove the absence of mitigating factors beyond a reasonable doubt.

The Texas Court of Criminal Appeals denied Valle’s claim on the basis of

Prystash v. State, 3 S.W.3d 522, 535-36 (Tex. Crim. App. 1999), which held that

the lack of burden of proof requirement in the mitigation special issue was

constitutional, as it does not lessen the State’s burden to prove the elements of

the capital offense and any aggravating circumstances. While Valle raised a

slightly different issue before the district court– focusing on the use of victim

impact evidence to rebut mitigation evidence offered by the defendant– the

district court found the arguments foreclosed by our precedent. 

In Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005), we held that “no

Supreme Court or Circuit precedent constitutionally requires that Texas’s
No. 08-70005

12

mitigation special issue be assigned a burden of proof.” Id. at 378. “Reasonable

jurists would not debate the district court’s dismissal of this claim as it has been

previously rejected in both state and federal court, and is not supported by

Supreme Court authority.” Scheanette v. Quarterman, 482 F.3d 815, 828 (5th

Cir. 2007); see also Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.

2006), cert. denied, 127 S.Ct. 732 (2006). We therefore may not grant a COA to

Valle on this issue.

Valle also appears to claim that the mitigation issue and futuredangerousness special issues are unconstitutional because they are not subject

to meaningful appellate review. The district court properly rejected both

arguments. Valle’s claim that the mitigation special issue is unconstitutional is

foreclosed by this court’s holding in Moore v. Johnson, 225 F.3d 495 (5th Cir.

2000) that Texas’s special mitigation issue complies with Supreme Court

precedent stating that sentencers are to be given “unbridled discretion” in

considering mitigating factors. Id. at 506-07 (quoting Tuilaepa v. California, 512

U.S. 967, 979-80 (1994)). The argument that the future dangerousness issue

cannot be meaningfully reviewed also holds no water. The district court pointed

to several factors that are the basis for an appellate court to review a jury’s

consideration of the future-dangerousness issue. Valle, 2008 WL 416241, at *

16 (citing Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App. 1987). 

For the foregoing reasons, Valle’s petition for a Certificate of Appealability

is DENIED.