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

USDC 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 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

October 1, 2018

Lyle W. Cayce

Clerk

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Cueva was arrested in 2007 for allegedly sexually assaulting a minor, 

A.G. After Cueva waived his Miranda1 rights, Detective Arturo Gonzalez 

interviewed 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 

statements 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, he 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 

alia, that he received ineffective assistance of counsel related to the admission 

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 that Perkins was ineffective for failing to object to Detective 

Gonzalez’s testimony about Cueva’s oral statements. The state appellate court 

addressed this argument, concluded it was meritless, and otherwise affirmed 

the state trial court. The Texas Court of Criminal Appeals refused 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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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 the Texas Court of Criminal Appeals denied relief without a written 

order. Cueva then filed an application for habeas relief under 28 U.S.C. § 2254 

in the district court. The district court denied relief, but a judge on this court

granted a certificate of appealability on Cueva’s claims of ineffective assistance 

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 Effective Death Penalty Act of 

1996 (“AEDPA”). Under AEDPA, a federal 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 relief so long as 

‘fairminded 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 

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court refused to consider evidence first presented during the hearing on his 

motion for a new trial.2 

Cueva’s argument fails. AEDPA deference 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 oralstatements claim on procedural grounds. See Harrington, 562 U.S. at 103

(noting a different standard applies to claims rejected on procedural grounds). 

Additionally, “review under § 2254(d)(1) is limited 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-statements

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 involuntary. 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 through’ 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 

Texas 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).

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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. ref’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 

understanding it, thereby rendering it involuntary. Id. Thus, the court agreed 

that 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 defendant 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 not 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)). We do not undertake a Strickland analysis 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 standard.” 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

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graduated from high school and was able to communicate effectively and 

supervise others at work. Under Strickland, “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 believe 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 because 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 counsel has no duty 

to raise 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 Perkins was not deficient for failing to object to Detective 

Gonzalez’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 decided 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 Gonzalez’s 

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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 reasonable 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 credibility 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, “it is all too easy for a court, 

examining counsel’s defense after it has proved 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 689 (internal citation 

omitted). Thus, we cannot say that the state court unreasonably applied 

Strickland in concluding 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 statements 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. TEX. CODE CRIM. PROC. ANN. 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 claim. 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).

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Cueva fails to show that the state court’s ruling denying relief on his 

claims 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.” Harrington, 562 U.S. at 103.

Thus, the 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.

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