### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 41211

CHARLES ANTHONY CUEVA, II,

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 Southern District of Texas U S D C No. 2:14

- CV

- 417

Before HAYNES, HO, and DUNCAN, Circuit Judges

. PER CURIAM: * Charles Anthony Cueva, II , was convicted by a jury of two counts of sexual assault of a child and one count of indecency with a child

. He now appeals the district court’s denial of his 28 U.S.C. § 2254(d) habeas petition. For the reasons set forth below, we AFFIRM.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 1, 2018

Lyle W. Cayce Clerk Case: 16-41211 Document: 00514663890 Page: 1 Date Filed: 10/01/2018No. 16

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2 Cueva was arrested in 2007 for allegedly sexually assaulting a minor , A.G

. After Cueva waived his Miranda 1 rights, Detective Arturo Gonzalez intervie wed him about the allegations. Cueva admitted on videotape that he had touched A.G. and had let her touch him , and that he had been sexually aroused by this activity, but he denied penetration. He stated that he probably did it because he was molested as a child. After the interview, Detective Gonzalez realized the video recorder had malfunctioned and Cueva’s
sta tements had not been recorded. So Detective Gonzalez offered to write down Cueva’s statement for him because Cueva could not spell well. Cueva agreed. After Detective Gonzalez was finished, Cueva read the statement and signed it. The written statement included Cueva’s admission that he had touched A.G. and had let her touch him , and that he had been sexually aroused. He again denied penetration and explained that he had been molested as a child. The State introduced the written statement at trial and Detective Gonzalez testified about Cueva’s oral statements. Cueva’s trial counsel, Eric Perkins, had moved to suppress the written statement but withdrew the motion before the trial began. At trial, h e did not object to Detective Gonzalez’s testimony about Cueva’s oral statements. After his conviction, Cueva filed a motion for a new trial, arguing, inter al ia, that he received ineffective assistance of counsel related to the admis sion of his written statement. The state court denied his motion. On appeal, Cueva renewed his claims regarding admission of his written statement and raised for the first time th at Perkins was ineffective for failing to object to Detectiv e Gon zal ez’s testimony about Cue va’s oral statements

. The state appellate court addressed this argument, concluded it was meritless, and otherwise affirm ed the state trial court. The Texas Court of Criminal Appeals refused

1 Miranda v. Arizona , 384 U.S. 436 (1966). Case: 16-41211 Document: 00514663890 Page: 2 Date Filed: 10/01/2018No. 16

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3 discretionary review. Cueva then filed a state application for habeas relief

. The trial court denied the application , issuing findings of fact and conclusions of law, and t he Texas Court of Criminal Appeals denied relief wit hout a written order. Cueva then filed a n application for habeas relief under 28 U.S.C. § 2254
in the district court . The dis trict court denied relief, but a judge on this court granted a certificate of appealability on Cueva’s clai ms of ineffective assi stance of counsel for failing to challenge the admissibility of his written and oral
statements

. We “review the district court’s findings of fact for clear error and review its conclusions of law de novo , applying the same standard of review to the state court’s decision as the district court.” Ortiz v. Quarterman , 504 F.3d 492, 496 (5th Cir. 2007). The district court applied the deferential standard under § 2254, as amended by the Antiterrorism and Eff ective Death Penalty Act of
1996 ( “ AEDPA ” ). Under AEDPA, a feder al court may grant habeas relief with respect to state court claims adjudicated on the merits only if the state court’s decision (1) resulted in a decision that was contrary to, or 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)

. This “ precludes federal habeas re lief so long as

‘ fa irminded jurists could disagree’ on the correctness of that decision. ” Harrington v. Richter , 562 U.S. 86, 88 (2011) (quoting Yarborough v. Alvarado , 541 U .S. 652, 664 (2004)). Cueva argues the district court erred in applying AEDPA deference to the state appellate court’s ruling on his oral

- statements claim because that Case: 16-41211 Document: 00514663890 Page: 3 Date Filed: 10/01/2018No. 16

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4 court refused to consider evidence first presented during the hearing on his motion fo r a new trial

. 2 Cueva’s argument fails. AEDPA d eference applies to any claim adjudicated on the merits. 28 U.S.C. § 2254(d). Here, the state court offered two substantive reasons why Perkins’s conduct was reasonable under Strickland , 3 and Cueva does not argue that the state court rejected his oral

statements claim on procedural grounds

. See Harrington , 562 U.S. at 103 (noting a different standard applies to claims rejected on procedural grounds). Additionally, “r eview under § 2254(d)(1) is limi ted to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster , 563 U.S. 170, 181 (2011). Accordingly, Cueva’s argument that AEDPA deference should not apply to the state court’s rejection of his oral

- st atements claim is without merit. Accordingly, we now evaluate the merits of his arguments through the filter of AEDPA deference. First, Cueva argues that Perkins was ineffective because he failed to investigate Cueva’s background and therefore failed to discover evidence of “multiple psychological deficits” that rendered his written statement involu ntary. He further alleges that because the statement was involuntary, Perkins’ s failure to pursue the motion to suppress was deficient. Applying Strickland , the state court of appeals disagreed with Cueva

. The
court concluded that Perkins’ s explanation that, after meeting with Cueva and

2 Ordinarily, AEDPA review applies to the “last state court [decision] to decide a prisoner’s federal claim.” Wilson v. Sellers , 138 S. Ct. 1188, 1192 (2018). But when that decision lacks reasoning, the reviewing “federal court should ‘look th r ough’ the unexplained decision to the last related state

- court decision that does provide a relevant rationale . . . [and] presume that the unexplained decision adopted the same reasoning.” Id . Here, the T exas Court of Criminal Appeals’ s decision provided no reasoning and the state appellate court’s decision on Cueva’s motion for a new trial was the last state court to consider his written

- statement claim. Thus, the district court “looked through” to this decision.

3 Strickland v. Washington , 466 U.S. 668 (1984)

. Case: 16-41211 Document: 00514663890 Page: 4 Date Filed: 10/01/2018No. 16

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5 his family, he saw no reason to investigate Cueva’ s mental state was reasonable

. Cueva v. State , 339 S.W.3d 839, 847 (Tex. App.

— Corpus Christi 2011, pet. r ef ’ d)

. The court also found implausible expert testimony that Cueva’s “emotional disturbance in combination with certain personality characteristics” led him to sign the written statement without fully reading or understan ding it, thereby rendering it involuntary. Id . Thus, the court agreed tha t Perkins was not deficient for failing to investigate Cueva’s mental health or for withdrawing the motion to suppress. Id

. To establish ineffective assistance of counsel, a defend ant must show that counsel performed deficiently and that he was prejudiced by counsel’s performance. Strickland v. Washington , 466 U.S. 668, 687 (1984). Under the first prong, a defendant must show that “counsel made errors so serious that counsel was n ot functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id . Under the second prong, a defendant must show that “counsel’s errors were so serious as to deprive the defendant of a fair trial.” Id

. This is a “highly deferential” standard. Id . at 689. When combined with AEDPA review, the standard is “doubly ” deferential. Harrington , 562 U.S. at 105 (quoting Knowles v. Mirzayance , 556 U.S. 111, 123 (2009)) . W e do not undertake a Strickland analy sis ourselves but instead ask only whether “the state court’s application of the Strickland standard was unreasonable.” Id. at 101. That is, we determine only “whether there is any reasonable argument that counsel satisfied Strickland ’s deferential stand ard.” Id. at 105. The state court did not unreasonably apply Strickland

. Perkins testified that neither Cueva nor his family informed him of any academic, intellectual , or emotional problems Cueva suffered. Cueva’s claim that Perkins should have known of a mental health issue is undermined by (1) Cueva’s testimony at trial regarding his work history and (2) Cueva’s mother’s testimony that Cueva Case: 16-41211 Document: 00514663890 Page: 5 Date Filed: 10/01/2018No. 16

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6 graduated from high school and was able to communicate effecti vely and supervise others at work. U nder Strick land , “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland , 466 U.S. at 691. It is not unreasonable that the state court determined Perkins was not deficient for failing to investigate Cueva’s background , given he had no indication Cueva allegedly suffered from a mental handicap

. Cf. Roberts v. Dretke , 381 F.3d 491,
489

– 99 (5th Cir. 2004) (noting that counsel has a duty to investigate “when he has reason to be lieve that the defendant suffers from mental health problems”). Cueva claims Perkins should have pursued a motion to suppress Cueva’s written statement because the statement was involuntary. But b ecause Cueva did not demonstrate that Perkins should have discovered a basis on which to conclude Cueva’s statement was involuntary, his claim that Perkins was ineffective for failing to pursue a motion to suppress fails. See Wood v. Quarterman , 503 F.3d 408, 413 (5th Cir. 2007) ( noting that c ounsel has no duty to rais e legally meritless arguments). Thus, the state court reasonably concluded that Perkins was not deficient under Strickland for withdrawing the motion to suppress. Second, Cueva argues the state court unreasonably applied Strickland by concluding P erkins was not deficient for failing to object to Detective Gon zal ez’s testimony about Cueva’s oral statements. At the hearing on Cueva’s motion for a new trial, Perkins testified that after concluding Cueva’s written statement was made voluntarily , he de cided it would be more effective to “allow the jury to see how the police procedure had potentially damaged evidence in the case.” The state court accepted Perkins’s proffered strategy as a reasonable explanation for his failure to object to Defendant Gon zalez’s Case: 16-41211 Document: 00514663890 Page: 6 Date Filed: 10/01/2018No. 16

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7 testimony about Cueva’ s oral statements

. 4 Cueva
, 339 S.W.3d at 879. 5 Cueva

argues this is an unreasonable application of Strickland because he believes Perkins’ s strategy was unsound and unpursued

. The state court did not unreasonably apply Strickland in this regard

. Counsel has wide latitude in making tactical decisions, Strickland , 466 U. S. at 689, including formulating “a strategy that was reasonable at the time, ” Harrington , 562 U.S. at 107. The Supreme Court has previously held that it is a reason able trial strategy for counsel “to try to cast pervasive suspicion of doubt [rather] than to strive to prove a certainty that exonerates.” Id . at 109. Here, the state court determined it was a reasonable trial strategy “to challenge the cred ibility of the police and, by extension, the credibility of all those responsible for gathering and presenting evidence against [Cueva] .” Cueva , 339 S.W.3d at 880

– 81. Moreover, “i t is all too easy for a court, examining counsel’ s defense after it has pro ved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight .” Strickland , 466 U.S. at 68 9 (internal citation omitted). Thus, w e cannot say t hat the state court unreasonably applied Strickland in conclud ing Perkins was not deficient for failing to object to Detective Gonzalez’s testimony about Cueva’s oral statements.

4 Cueva argued Perkins was ineffective for failing to object to testimony about his oral statements because those stat ements were not recorded and were thus inadmissible. It is undisputed that the oral statements were not recorded and that in Texas, subject to certain exceptions, oral statements made during a custodial interrogation are inadmissible unless recorded. T EX

. C ODE C RIM . P ROC . A NN . art. 38.22 § 3(a)(1 ).

5 The state court also reasoned that the oral statements were cumulative of Cueva’s written statement and that failure to object to cumulative evidence would not support an ineffective assistance of counsel clai m. Cueva , 339 S.W.3d at 879. Because we conclude the state court did not unreasonably apply Strickland regarding its determination of Perkins’s trial strategy, we do not reach its cumulative

- evidence explanation. See Premo v. Moore , 562 U.S. 115, 124 (2011). Case: 16-41211 Document: 00514663890 Page: 7 Date Filed: 10/01/2018No. 16

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8 Cueva fails to show tha t the state court’s ruling denying relief on his claim s of ineffective assistance of counsel “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Har rington , 562 U.S. at 103. Thus, t he district court did not err in denying Cueva relief under § 2254

. 6 The judgment of the district court is AFFIRMED.

6 Because Cueva failed to show the state court erred in applying the deficiency prong of Strickland , we need not reach Cueva’s arguments regarding the prejudice prong. See Strickland , 466 U.S. at 697. Case: 16-41211 Document: 00514663890 Page: 8 Date Filed: 10/01/2018