### REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-40091

_______________________

ROGELIO RANGEL HERNANDEZ,

Petitioner-Appellant,

versus

GARY JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

March 12, 1997

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges

EDITH H. JONES, Circuit Judge:

Appellant Rogelio Hernandez was convicted of capital murder and sentenced to death

for murdering Officer Jose Herrera during an attempted escape from the Webb County Jail in 1986.

After appellant’s conviction was affirmed on direct review and a last-minute petition for state habeas

corpus was overruled, appellant sought a stay of execution and writ of habeas corpus in federal court.

After an evidentiary hearing on appellant’s most significant claims, the district court denied relief on1 Since the district court issued the certificate of probable cause in January

1996, before the passage of the Anti-Terrorism and Effective Death Penalty Act

of 1996 (AEDPA), this court’s jurisdiction attached under the then-existing 28

U.S.C. § 2253. A certificate of appealability under the AEDPA is issued under

the same standards as a certificate of probable cause. Drinkard v. Johnson

,

___ F.3d ___, 1996 WL 571122 at *2-3 (5th Cir. 1996); AEDPA, § 102 (to be codified

at 28 U.S.C. § 2253(c)(2)).

2 each of appellant’s forty-six alleged errors. The district court granted a certificate of probable cause 1

and appellant now seeks reversal of the district court decision based on his counsel’s alleged conflict

of interest and ineffective assistance. We hold that Hernandez’s at t o rney did not labor under an

actual conflict of interest by having served as district attorney when Hernandez pled guilty to prior

felonies, and there was no “adverse effect” on Hernandez’s defense from the potential conflict. We

affirm the district court’s decision to deny relief on this and on the other ineffective assistance claims.

I. BACKGROUND

Hernandez and several co-conspirators attempted to escape from the Webb County

jail in Laredo, Texas on February 3, 1986. In planning for the escape, appellant arranged for three

handguns to be smuggled into the jail. Upon receipt of .25 caliber weapons, however, Hernandez

info rmed his outside contact that he needed bigger guns, and subsequently two .38 caliber pist o ls

were smuggled inside.

On the day of the murder, the lawyer for one of the co-conspirators visited the jail,

purportedly to talk with Hernandez. Officer Herrera went to remove Hernandez from his cell to meet

with the lawyer. The plan was to force Officer Herrera to release appellant and his co-conspirators.

When Officer Herrera did not cooperate, Hernandez shot him three times, firing the fatal shot into

his temple. The state court described what happened next:

Jose de Jesus Benavides and Merced Martinez, two other detenti on

officers who came to investigate the sound of gunfire, were each shot

s everal t imes by the appellant, who was then armed with a large

caliber revolver in each hand. Ruben Reyes, another detention officer,

was also shot. A narrow stairwell in the jail prevented law

enforcement officers from reaching the second floor and allowed

appellant to control that floor for most of the night. After threatening3 t o sho o t other inmates on the second floor, appellant finally

surrendered and was taken into custody.

Hernandez v. State

, 819 S.W.2d 806, 809 (Tex. Cr. App. 1991), cert. denied

, Hernandez v. Texas

,

___ U.S. ___, 112 S.Ct. 2944 (1992).

Hernandez was first convicted and sentenced to death for this crime in 1987, but his

conviction was overturned because of the improper exclusion of a prospective juror. Hernandez v.

State , 757 S.W.2d 744 (Tex. Cr. App. 1988).

Appellant was retried, convicted, and again sentenced to death in 1989. The evidence

overwhelmingly pointed to his guilt. Hernandez’s outside contact testified that appellant requested

the weapons for the escape. The fatal shot struck Officer Herrera in the temple and was fired by a

large caliber weapon. Hernandez had gunpowder residue on his hands when he was arrested and was

seen shortly after the shots were fired with the only two large caliber weapons found in the jail. The

jury also heard evidence that appellant sho t the other officers and occupied the second floor for

several hours before finally surrendering. Both during the standoff and after his arrest, appellant

admitted to the detention officers that he had shot Officer Herrera.

At the penalty phase of trial, appellant’s lengthy criminal record, including two prior

murder co nvictions, was revealed. Local law enforcement officers testified to Hernandez’s poor

reputation as a peaceful and law-abiding citizen. A member of a prison gang also t est ified t hat

Hernandez was a leader in the Texas Syndicate and performed criminal activities in prison on behalf

of the gang. The state also introduced appellant’s letters to his family, written shortly before the

murder, indicating that he would “die trying to be free again.”

His second conviction was affirmed by the Texas Co urt o f Criminal Appeals.

Hernandez

, 819 S.W.2d at 820. After a petition for certiori was denied by the U.S. Supreme Court,

appellant was allegedly unable to obtain counsel for state habeas proceedings and did not seek state

post-conviction relief except for an unsuccessful motion for a stay to obtain counsel. He was

scheduled to be executed on August 21, 1992.2 AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) reads:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

cour t shall not be granted with respect to any claim

that was adjudicat ed on the merits in State court

proceedings unless the adjudication of the claim --

(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 decis ion that was based on an

unreasonable determination of the facts in light

of the evide nce presented in the State court

proceeding.

3 The conflict of interest question was adjudicated in st ate

court pretrial proceedings, because the state moved to disqualify

4 The day before that fatal deadline, Hernandez filed a motion for stay of execution and

a petition f

o r writ of habeas corpus in federal district court. The district court granted the stay of

execution and conducted an evidentiary hearing. The district court denied appellant’s petition for writ

of habeas corpus with an extensive and careful memorandum and order issued August 3, 1995 and

granted a certificate of probable cause on January 30, 1996, continuing the stay pending this appeal.

II. DISCUSSION

A. Applicable standard of review

The President signed the Antiter ro rism and Effective Death Penalty Act of 1996

(AEDPA) on April 24, 1996. Pub. L. No. 104-132, 110 Stat. 1214 (1996). This circuit has held that

the AEDPA applies to appeals pending as of the effective date of the act. Drinkard v. Johnson

,

___

F.3d ___, 1996 WL 571122, *11 (5th Cir. 1996). In D rinkard

, the panel determined that applying

§ 2254(d)(1) as amended by the AEDPA did not raise retroactivity problems since the amendment

is a “change in procedural rules” invo lving “federal standards of review of state court decisions.” I d.

at *12. A habeas petitioner normally cannot demonstrate reliance on the “former federal standards

of habeas review in making strategic, tactical, or other decisions during the state court litigation.” Id.

The amended § 2254(d) 2 appli es t o t he review of claims adjudicated on the merits in state court.

However, Hernandez’s ineffectiveness claims were not adjudicated on the merits in state court. 3Borchers as Hernandez’s lead trial counsel , the court heard

arguments and took evidence, the court held there was no conflict,

and the court then elicited a waiver from Hernandez and his express

wish to be represented by Borchers. The district court s ua sponte

stated that Hernandez appeared to have waived his claim of a

conflict.

5

Section § 2254(e)(2), as amended by the AEDPA, identifies limited circumstances

under which a federal court may hold an evidentiary hearing o n a claim for which a state prisoner

failed to develop the factual basis in state court. The amended section provides:

(2) If the applicant has failed to develop the factual basis of a claim in

State court proceedings, the court shall n o t hold an evidentiary

hearing on the claim unless the applicant shows that --

(A) the claim relies on --

(I) a new rule of constitutional law, made retroactive

t o cases on collateral review by the Supreme Court,

that was previously unavailable; or

(ii) a factual predicate t hat could not have been

previously discovered throu gh the exercise of due

diligence; and

(B) the facts underlying the claim would be suff icient to

establish by clear and convincing evidence that but for the

constitutional error, no reasonabl e factfinder would have

found the applicant guilty of the underlying offense.

AEDPA, § 104(4) (to be codified at 28 U.S.C. § 2254(e)(2)). This provision, like the amendments

to § 2254(d), embodies a procedural change in federal habeas review of state decisions and raises no

retroactivity concerns. See Drinkard

, 1996 WL 571122 at *12; Lindh v. Murphy

,

___ F.3d

___, 1996

WL 517290 (7th Cir. 1996); Hunter v. Vasquez , 1996 WL 612484, *6 (N.D. Cal. 1996). It could

not apply in this case, of course, because the federal evidentiary hearing was held well before AEDPA

was passed.

Application of § 2254 as amended is thus problematic for claims that were adjudicated

in federal district court but not on the merits in state court before the passage of A EDPA. In thi s

unusual situation, which will become even rarer as AEDPA’s terms shift the focus of hearings to state4 AEDPA now provides that the state will not be deemed to have

waived or be estopped from raising the exha ustion of remedies

requirement unless the state expressly consents to waive it. §

2254(b)(3), as amended by AEDPA. But, even if the state consents

to waive exhaustion, as it did here, § 2254(e)(2) circumscribes the

grounds on which a federal court may hold a habeas hearing on a

claim whose factual basis was not developed in state court.

Combined, the provisions clearly place the burden on a petitioner

to raise and litigate as fully as possible his potential federal

claims in state court.

5 For purposes of this appeal, we assume Borchers approve d appellant’s plea

bargain, even though the only “evidence” supporting this conclusion i s pure speculation offered by Hernandez at the evidentiary hearing before Judge Kazen.

6 courts where it belongs, 4 we will review the record including both the federal and, where applicable,

state court hearings. S ee n.3 supra. As Hernandez has been unable to prevail by means of the more

liberal criteria, it is clear that, under AEDPA’s more rigorous § 2254(d) standard, he would lose.

B. Appellant’s claims

1. Conflict of interest

Appellant alleges that his attorney’s prior service as the elected district attorney when

Hernandez was tried created a conflict of interest that adversely affected his attorney’s performance.

For the second trial in 1989, the court appointed Charles Borchers and Teresa Hunter to represent

appellant. Borchers served as Webb County district attorney from 1973 to 1980, during which time

appellant was convicted of two felonies in Webb County: aggravated assault with a deadly weapon

in 1976 and murder in 1978. Although Borchers was not the trial counsel for the state in appellant’s

cases, Borchers signed a motion requesting psychiatric evaluation of appellant in connection with the

1978 charge, signed a motion to dismiss a related indictment after Hernandez pled guilty, and

probably approved Hernandez’s plea bargain. 5 With respect to the 1976 felony, Borchers signed two

applications for subpeonas and moved to dismiss related charges after appellant pled guilty.

In a pretrial hearing in t he state court, the state obj ected to Borchers’s servi ce as

appellant’s at t o rney, making arguments similar to those now advanced by Hernandez. The state6 After ruling that Mr. Borchers was not disqualified, the following exchange

occurred:

The Court: W ell, let me, before I go on to something else. Mr.

Hernandez, do you understand --

The Defendant: Yes, Sir. I do.

The Court:

-- what just went on with regards to the State’s motion

to disqualify your attorney?

The Defendant: Right, Sir.

The Court: And you are aware that Mr. Bor chers was in fact the

District Attorney at one time?

The Defendant: Yes, Sir.

The Court: That was up until 1978?

Mr. Borchers: No, Sir. It was from 1973 through 1980, eight

years.

The Court: And knowing what you know now about Mr. Borchers and

your previous dealings with him, do you have any

reservations about whether he could represent you fairly

and adequately?

The Defendant: No, Sir. I would like to keep him as my attorney

in this case.

The Court: Along with Ms. Hunter?

The Defendant: Yes, Sir.

In addition, in rejecting another clai m made by appellant, the

federal district court made an explicit finding that Mr. Hernandez is an

“intelligent and articulate man who, after having spent much of his adult life

in the criminal justice system, appears in timately familiar with the rights

afforded criminal defendants.” D. Ct. Op. at 52, n. 27. The district court also

noted that “after being told of this circumstance [Borchers’s prior service as

district attorney], Petitioner agreed to let Borchers represent him.” Id. at 42-

43. We do not reach the waiver question because appellant’s claim has no merit,

but had the state timely ra ised a waiver defense, it is almost certain that

appel lant waived his right to complain of any deficiencies resulting from

Borchers’s prior service as district attorney.

7 argued that Borchers would be in the position of attacking convictions obtained during his tenure,

threatened to call Borchers as a witness to support the prio r co nvictions, and even pointed to a

possible reversal on appeal as a reason for disqualifying Borchers. The state also pointed out that

Borchers signed the 1978 commitment request, that Borchers’s current law partner, Steven

Whitworth, was the prosecutor who handled the 1978 murder prosecution, and that Borchers may

have approved appellant’s 1978 plea bargain. Borchers’s co-defense counsel, Ms. Hunter, responded

that Borchers’s participation in the prior cases was peripheral, noting that he made no appearances

and signed no stipulations in the cases, and she urged the court to take judicial notice of the files of

the prior cases. The trial court overruled the state’s motion to disqualify. 67 Appellant also alleges as another “conflict” that Borchers served as court-appointed counsel for appellant during

the prosecution of appellant’s 1968 theft conviction

. Although this could have created a conflict under some

hypothetical scenario, Hernandez makes no effort to demonstrate how this prior representation creates an actual conflict

in this case or how he could have been adversely affected.

8 Hernandez now contends that Borchers’s service a s di strict attorney 7 during the period

of appellant’s prior convictions created an actual conflict of interest that adversely affected Borchers’s

performance under Cuyler v. Sullivan 446 U.S. 335, 348, 100 S.Ct. 1708, 1718 (1980). If

Hernandez were correct, then under Cuyler

, prejudice to the defendant is generally presumed. Id. at

348, 100 S.Ct. at 1718. This circuit has limited C uyler to actual conflicts resulting from a lawyer’s

representation of mult iple criminal defendants. Beets v. Scott

, 65 F.3d 1258,

____ (5th Cir. 1995) (en

banc), c ert. denied

,

___ U.S.

___, 116 S.Ct. 1547 (1996) (citing Nix v. Whiteside

, 475 U .S. 156,

165-66, 106 S.Ct. 988, 993 (1986)). We shall assume a rguendo that the putative conflict presented

by Borchers’s prior service as district attorney when Hernandez was convicted of felonies in Webb

County presents a Cuyler problem, although Borchers did not represent mult iple defendants but two

parties with arguably disparate interests. In addition to actual conflict, petitioner must show adverse

effect, meaning that “some plausible defense strategy or tactic might have been pursued but was not,

because of the conflict of interest.” Perillo v. Johnson , 79 F.3d 441, 449 (5th Cir. 1996).

Appellant argues that since the 1976 and 1978 convictions were pled in the indictment

and introduced by the state at the penalty phase, Borchers faced a choice between challenging

convictions obtained during his tenure as district attorne y o r no t providing appellant with zealous

representation. A Texas rule of professional responsibility bars district and county attorneys from

being “of counsel adversely to the State in any case, in any court, nor shall they, after they cease to

be such officers, be of counsel adverse to the State in any case in which they have been of counsel8 The motion to strike the enhance ment allegations asserted

that the indictments whic h formed the basis of the 1976 and 1978

convictions failed to state all elements of the charged offense.

The motion also alleged without elaboration that counsel rendered

ineffective assistance during the trial of the 1978 offense.

9 for the State.” Tex. Code Crim. Proc. art. 2.08. Since Borchers withdrew a motion 8 that would have

challenged the prior convictions, there was necessarily, appellant alleges, an actual conflict with

adverse effect.

Like the state trial court and federal habeas court, we are not convinced that petitioner

has shown an actual conflict of interest. A mere possibility of conflict does not raise a presumption

of prejudice, and “until a defendant shows that his counsel actively represented conflicting interests,

he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler

, 446

U.S. at 350, 100 S.Ct. at 1719. Borchers’s involvement in the prior prosecutions of appellant was

not personal and substantial enough to give rise automatically to an actual conflict regardless of the

circumstances. See ABA Model Rules of Professional Conduct, Rule 1.11(a) (counsel must have been

“personally and substantially” involved in prior litigation invo lving defendant). Borchers’s service

as district attorney ended nine years before appellant’s trial; he personally searched the records of the

prior felonies before representing Hernandez t o det ermine whether he was involved in those

prosecutions and concluded there was no hindrance. Under these circumstances, where Borchers was

only tenuously and nominally connected to the prior cases against Hernandez, it can hardly be said

that he “actively” represented conflicting interests. See Cuyler

, 446 U.S. at 350, 100 S.Ct. at 1719.

In addition to finding that no conflict arose, the federal district court found that

appellant did not provide “any evidence that this alleged conflict affected Borchers’ performance.”

We agree, and thus Hernandez cannot meet the adverse effect prong of Cuyler

.

Hernandez contends that collaterally attacking petitioner’s pri o r convictions was a

plausible defense strategy that was not pursued because of the alleged conflict. No evidence from

the state or federal habeas hearings supports any part of this theory. Hernandez merely speculates10

that counsel’s withdrawal of a motion attacking the prior convictions at the same hearing where the

State urged its motion to disqualify him from the case temporally substantiates the conflict’s effect.

The inference Hernandez would draw from this t iming is contrary to testimony at the

federal habeas hearing. In response to questioning from the court, Mr. Borchers testified: “If I knew

of a ground that we could’ve attacked that conviction on, we would’ve. We certainly wouldn’t have

just close [sic] the lid.” He also stated that “had there been a pretty obvious basis” on which to attack

the convictions, he wo uld have done so. Hernandez has never adduced any evidence at the

evidentiary hearing or in his post-hearing submissions that there was a viable basis upon which the

prior convictions could be attacked. Significant ly, the same objections raised by Borchers’s

withdrawn motion were overruled at appellant’s first trial.

Finally, the state trial court, after hearing the prosecutor argue as Hernandez does now

that Borchers would be forced to attack convictions obtained during his tenure as district attorney,

denied the motion to disqualify and concluded that “Defense Counsel [ Borchers] is not disqualified

under Article 2.08.” This decision was st at ed while Borchers’s motion to strike the enhancement

allegations was still pending. In essence, the state court ruling left Borchers free to attack appellant’s

prior convictions. Such a ruling would ordinarily insulate Borchers from a later challenge based on

alleged conflicts of interest because of his prior status as district attorney.

The district court, and earlier, the state trial court, were each in a far better position

to evaluate the credibility of witnesses, weigh the evidence, and determine if there w as an actual

conflict or any adverse effect from the alleged conflict of in terest. S ee Burger v. Kemp

, 483 U.S.

766, 785, 107 S.Ct. 3114, 3121 (1987) (“The district judge, who presumably is familiar with the legal

talents and character of the lawyers who practice at the local bar and who saw and heard the witness

testify, is in a far better position than we are to evaluate a charge [that there was an actual conflict]

...”). The district court found Bo rchers’s testimony credible and Hernandez’s proof lacking. We

perceive no basis to disturb the district court finding that there was no evidence of adverse effect on9 The cas es cited by appellant from other circuits are distinguishable. In

United States v. Ziegenhagen

, the Seventh Circuit remande d for an evidentiary

hearing after an appeal of a federal firearm conviction where the defense

attorney was involved in prosecuting one of the defendant’s prio r convictions

used for enhancement purposes. 890 F.2d 937, 940-41 (7th Cir. 1989). However,

the defense attorney in Ziegenhagen actually appeared for the State at the prior

sentencing proceeding and failed to inform the defendant or the co urt of the

potential conflict prior to the gun possessio n trial or sentencing. I d.

Ultimately, as appellant admits, the district court on remand in Ziegenhagen

found that the defense counsel played a peripheral role in the prior prosecution

and did not actively represent conflicting interes ts by defending Ziegenhagen

against the gun possession charge. United States v. Ziegenhagen

, No. 89-256; 1990

U.S. App. LEXIS 9835 (7th Cir. 1990).

Maiden v. Brunnel l , 35 F.3d 477 (9th Cir. 1994), is similarly

unavailing for appellant’s position. In M aiden

, the Ninth Circu it rejected a

habeas petition alleging conflict of interest where the defense attorney had been

the actual prosecutor who successfully convicted the defendant only three years

earlier. Id. at 479-481. After rejecting the Z iegenhagen court’s categorical

condemnation of prosecutors switching sides, the Maiden court determined that

there was no conflict because the two cases were not related. Id. at 480-81. The

Maiden c ourt stated that a reviewing court should pay particular attention to

those cases where a lawyer would be required to undermine or criticize his prior

work. Id. at 48 1. However, the court was not presented with such a case, and

that statement was dicta. Id. In any event, the M aiden dicta does not compel a finding of actual conflict in this case, since the state trial court found that

Mr. Borchers was not barred from representing appellant and pursuing any attacks

on prior convictions that might be necessary.

11 Borchers’s performance because of his prior service as elected district attorney

. No viable options

were foreclosed. 9

Denial of discovery. Appellant alternatively argues that the district court abused its

discretion by denying discovery and an evidentiary hearing on this claim. Appellant argues that the

district court’s failure to rule on appellant’s discovery requests was a blanket denial of discovery in

t he face of factual allegations that present a prima facie claim for relief. See East v. Scott

, 55 F.3d

996, 1001 (5th Cir. 1996).

We disagree. Appellant has made no showing of what types of evidence he hopes to

obtain from the district attorney’s files which would entitle him to relief. Appellant is not entitled

to a fishing expedition. East

, 55 F.3d at 1005; Ward v. Whitley

, 21 F.3d 1355, 1367 (5th Cir. 1994).

Further, the district court gave appellant ample opportunity to develop his claim: the court held an

evidentiary hearing at which Borchers’s alleged conflict was fair gam e and was the subj ect of

questioning by appellant’s habeas counsel and Judge Kazen himself. At the time of the evidentiary12

hearing, appellant had available the transcript of the state court hearing which allegedly provides the

evidence of adverse effect. Borchers was questioned about the decision not to challenge appellant’s

prior conviction s, and he said he did not believe there were plausible grounds to attack the

convictions. Hernandez was unable to impeach this testimony.

2. Ineffective assistance of counsel

The only alleged defect in Borchers’s performance that appellant attributes to his prior

service as district attorney is the failure to challenge the e nhancement convictions. Appellant’s

remaining claims of ineffective assistance at both the penalty and guilty/innocence phases of his state

trial are measured under Strickland v. Washington , 446 U.S. 668, 104 S.Ct. 2052 (1984).

To prevai l on an ineffectiveness claim, appellant must show both deficient performance

by counsel, and prejudice to the defense as a result of the performance. Id

. at 687, 104 S. Ct. at 2064.

Counsel’s performance is deficient if it falls below an objective standard of reasonableness. Id

. at 688,

104 S. Ct. at 2064. Our review of counsel’s performance is highly deferential, wit h a strong

presumption that performance was reasonable. Id

. at 689, 104 S. Ct. at 2065. Deficient performance

is prejudicial only upon a showing that but for trial counsel’s errors, there is a reasonable probability

that the ultimate result would have been different and that confidence in the reliabilit y of the verdict

is undermined. United States v. Faubion , 19 F.3d 226, 228 (5th Cir. 1994).

a. Punishment phase.

Hernandez argues that his lawyers were ineffective at the punishment phase of his trial

because of inadeq uat e preparation and investigation. Borchers spent less than two hours visiting

Hernandez in jail before his trial and interviewed only two of thirty-one state witnesses (both of whom

testified at the guilt/innocence phase). Hunter attempted but failed to locate appellant’s jailmates at

the time of the breakout, Hunter had a baby less than two months before the start of voir dire, and

Hunter allegedly only visited Hernandez in jail one time for 37 minutes, over eight months before the

trial started.1 0 The district court concluded that appellant had overstated the deficiencies

of his counsel’s performance. Borchers read several background materials on

defending a capital case. Borchers interviewed his client before trial and

relied primarily on Hernandez as the source of mitigating eviden ce. Borchers

also reviewed the transcript from appellant’s first trial, interviewed

13 Hernandez also complains that his counsel d i d not pursue available sources of

mitigating evidence. Borchers and Hunter had appellant fill o ut a “questionnaire” from the Texas

Resource Center that was intended to be a checklist for attorney s to use while interviewing a capital

defendant. According to Hernandez, his answers to the questionnaire identified several sources of

possible mitigating evidence that were not pursued. Appellant also faults his counsel for not using

the $1500 approved by the court to hire an investigator.

Appellant contends that his counsel should have discovered and presented a wide

variety of mitigating evidence, including: a history of drug and alcohol abuse and resulting

hallucinations; prior treatment with psychotropic medication; past psychometric tests that put him in

a category of “borderline psychotics” who “have periods of confusion and disorientation;” names and

addresses of family members; school records revealing that appellant liked school but quit because

of teasing about his time at reform school; and record s indicat ing appellant had suicidal thoughts.

In addition, Hernandez contends that he cannot remember the 1978 murder, and that if Borchers and

Hunter had contacted his sister, she would have testified that while his co-conspirators were covered

in blood when they came home the night of the 1978 murder, Hernandez did not have blood on him.

Borchers also assertedly prejudiced Hernandez’s defense by asking three jurors in voir

dire about the effect of mitigat ing evidence. Appellant argues that this questioning created an

expectation in the jury’s minds that mitigating evidence woul d be presented and exacerbated the

impact of counsel’s failure to put on mitigating evidence.

After considering appellant’s claims and condu ct ing a hearing on counsel’s

effectiveness at the penalty phase, the district court doubted that Hernandez had shown objectively

unreasonable assistance, and we harbor similar reservations. 1 0 We also agree with the district court’sappellant’s prior lawyers, and reviewed documents from the Webb County Jail,

Courthouse and district attorney’s office regarding appellant’s record. Hunter

interviewed appellant concern ing his family history on several occasions,

reviewed the transcripts of appellant’s first tr ial and the trial of a codefendant, interviewed appellant’s prior lawyers and the prosecutor ’ s investigator, and attempted to locate other inmates who had been imprisoned in

appellant’s cell block, although she was unsuccessful because they had all either

died or been deported to Mexico.

The district court found that appellant’s counsel discussed the crime

with appellant and attempt ed to discover his version of the events. Counsel

interviewed appellant to discover mitigating evidence and provided appellant with

a questionnaire to elicit mitigating evidence. Counsel testified that appellant

was adamant that his family not be conta cted. Appellant argues that his

prohibition only extended to his mother an d son testifying at trial, but the

district court found that counsel reasonably believed th at appellant’s entire

family was off limits. Hunter explained to appellant the importance of

developing mitigating evidence and that the questionnaire would be used for that

purpose. The court also found that appellant understood the importance of

mitigating evidence. Appellant admitted learning of the Supreme Court’s decision

in Penry v. Lynaugh and asking Borchers if there would be any mitigating evidence

presented.

Nonetheless, appellant was not cooperative in providing information.

The questionnaire contained numerous responses that described his family life in

idylli c terms. Appellant wrote on the questionnaire: “I have always had my

parents ’ love and support. I was always provided with what I needed or was

necessary”; “Everyone was treated the same and no one was never abused in any way

or form.” The district court also noted that the affidavits from appellant’s

family submitted after the evidentiary hearing do not support the allegation of

childhood abuse and that the affidavit of appellant’s sister does not mention the

1978 murder.

In further support of the trial court’s conclusion, we note that the

first trial record reflected that in the 1978 competency evaluation conducted at

Rusk, Hernandez was found competent to stan d trial, sane at the time of the

offense, and to be a “manipulative psychopathic personality.” First Trial Record,

Defendant’s Exhibit 1 (Sept. 29, 1978 Report of Dr. James Hunter). Hernandez had

also been diagnosed as “a sociopath or

... an antisocial personality.” Id. This

suggests that counsel had good reason not to delve further into these matters.

14 conclusion that even if appellant has demonstrated unreasonable performance, h e failed to show

prejudice.

The district court found that had appellant’s counsel investigated more effectively, the

most that could have been discovered was:

(1) that Petitioner love d his family and did good deeds for his

siblings;

(2) that he had a serious drug and alcohol problem dating back to his youth;15 (3) that as a teen, he was interned at the Gatesville School for

Boys, which was later found by a federal district court to have

inflicted cruel and unusual punishment on its inmates;

(4) that he suffered from occasional hallucinations;

(5) that he attempted suicide on three occasions while in j ail in

1978 and that three siblings had previously attempted suicide;

(6) that he was diagnosed by T.D.C. mental health personnel as a

border line “psychotic” and was administered psychotropic

medication;

(7) that he did not plan for any one to get hurt during the

attempted jailbreak; that he t ried to get Officer Herrera help

after he was shot; and that he was so remorseful over

Herrera’s death that he asked a priest to convey his regrets to

Herrera’s mother.

D. Ct. Op. at 59-60. Appellant does not challenge these findings by the district court.

Weighed against the evidence heard at the guilt and punishment phases of the trial,

Hernandez has not met his burden of demonstrat ing a reasonable probability that if the above

evidence had been discovered and introduced by his trial counsel, appellant would not have been

sentenced to death. Among Hernandez’s prior felony convictions were two for grisly murders: the

1985 murder of U.S. Customs Agent Ernesto Vera and the 1978 murder of a pr o sti tute named

Antonia Venegas. O.J. Hale, the investigator for the prosecution and a member of the Webb County

Sheriff’s Department, testified that he had arrested appellant for Venegas’s murder and was a part

of the S.W.A.T. team that arrested appellant for Vera’s murder. Hale testified that Venegas’s naked

body was found with her throat slit and with mult iple stab wounds. Dr. Francisco Gonzalez testified

that Venegas had been stabbed forty-four times and authenticated a crime scene photo of her body.

Dr. Gonzalez also testified that Ernesto Vera had been shot twice in the back and once around his

waistline.

Eliseo Martinez, who was imprisoned with appellant, testified that Hernandez was

“chairman” of the Laredo and Ellis One units of the Texas Syndicate, a drug gang that operates inside

and outside Texas prisons. Membership in the gang is limited to “cold-blooded killers,” and Martinez16

testified that appellant could order killings and drug deals. Martinez also testified that appellant dealt

drugs for the Syndicate in the early 1980s.

Additionally, there were the facts surrounding the attempted jailbreak. A prison guard

responding to the sound of the shots that killed Officer Herrera found Hernandez holding a revolver

in each hand. Hernandez subsequently shot that prison guard twice, as well as two other priso n

guards, all of whom were unarmed, as they attempted to flee the area of the prison c ontrol l ed by

appellant.

We agree with the district court’s summation:

... the jury heard that Petitioner had murdered three people, including

A n tonia Venegas, the prosti tute who was stabbed forty-four times,

and that he had seriously wounded at least three others. The jury also

saw Petitioner’s record of conviction in three other felony cases and

heard testimony that Petitioner was a member of the infamous Texas

Syndicate. The mitigat ing evidence reasonably available to

Petitioner’s [sic] could not have offset the strength of these

aggravating circumstances.

... Indeed, some of the mit igating

evidence, such as the his t o ry o f drug and alcohol abuse, could have

“cut both ways.”

D. Ct . Op. at 62-63 (citations omitted). Ultimately, Hernandez’s own actions demonstrated t hat

imprisonment would not keep him from killing again . Hernandez has not shown a reasonable

probability that he would not have been sentenced to death if counsel had tried the punishment phase

differently.

Further, Hernandez is not entitled to additional discovery or hearings on this issue.

The district court’s hearing provided a fair opportuni ty to present his claim of ineffective assistance

at the punishment phase, and appellant has not demonstrated what type of informati on woul d be

obtained in further discovery that would alter the court’s conclusions.

b. Guilt/Innocence phase

Hernandez contends that the federal district court erred in failing to provide funds for

the hiring of experts and failing to allow discovery to pursue his claim that B orchers and Hunter17

provided ineffective assistance at the guilt/innocence phase by not presenting appellant’s accident

theory to the jury.

At the first trial, there was testimony that blood and bullet marks were found on the

ceiling above where Officer Herrera’s body was found. The medical examiner testified that the fatal

bullet was fired at a sli ghtly upward trajectory. The state’s expert also testified that the cocking

mechanisms on both weapons were destroyed during testing by the state. Appellant contends these

facts suggest a defense that the shooting was accidental. Thus, appellant argues that his trial counsel

was ineffective in not presenting this evidence at the second trial or at least pursuing further

investigation of this theory. We disagree.

The district court found that appellant did not tell defense counsel that the shooting

was accidental. Instead, Hernandez told Hunter that “he shot Herrera after Herrera grabbed for

Petitioner’s gun,” and reaffirmed that story to Hu nt er during her subsequent representation of

Hernandez in the t rial for wounding the other three guards. The accident theory is, charitably,

implausible in light of the facts that Hernandez shot Officer Herrera three times and then deliberately

shot three other una rmed guards. Borchers did emphasize on cross-examination of the state’s

investigator that appellant only shot Officer Herrera after Officer Herrera grabbed for appellant’s arm.

The district court found that this was the most that Borchers could do with these facts.

Plainly, it was reasonable for Borchers and Hunter not to have considered the accident

theory as a defense. And in any event, appellant cannot show a reasonable likelihood that he would

not have been convicted and sentenced to death had his counsel pursued the theory that Hernandez

accidentally shot Officer Herrera three times. The district court did not abuse its discretion in failing

to order discovery, provide funds for expert investigation or conduct an evidentiary hearing on this

issue.

CONCLUSION18 For the foregoing reasons, we AFFIRM the de cision of the district court, deny

appellant’s requested relief and VACATE the stay of execution.