IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-70015

JORGE VILLANUEVA, 

 Petitioner–Appellant,

v.

WILLIAM STEPHENS, 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. 4:02-CV-4122

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

In this habeas corpus proceeding, Jorge Villanueva, a Texas death-row 

inmate, argues that his trial counsel provided ineffective assistance by failing 

to investigate and present mitigation evidence during the punishment phase 

of his trial. The district court denied relief, and we granted a certificate of 

appealability (COA). We now affirm the judgment of the district court.

 

* 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

July 21, 2015

Lyle W. Cayce

Clerk

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I

Villanueva was arrested for capital murder in October 1994. One 

attorney was appointed to aid in Villanueva’s defense at that time, and cocounsel was appointed in May 1995. Villanueva filed grievances against his 

initial attorneys, and approximately three weeks before trial was scheduled to 

begin, counsel withdrew as a result of these grievances. Jerry Guerinot and 

Anthony Osso were appointed to replace them. The court reset the trial date 

for September 9, 1996. Guerinot and Osso prevailed on motions to have experts 

in psychiatry and criminology funded.

While still represented by Guerinot and Osso, Villanueva retained a new 

attorney, Philip Campa. On August 22, 1996, the court held a hearing on 

Campa’s motion for substitution as counsel, during which the trial court 

questioned Villanueva on the record. Villanueva confirmed that he was aware 

that Campa had not tried a capital case. The court also discussed the 

procedures in a death-penalty case with Villanueva:

The Court: If you’re convicted of capital murder, there’s a second 

part to the trial. Do you understand that?

Villanueva: Yes.

The Court: What is the second part of the trial if you’re convicted 

of a capital murder?

Villanueva: Well, there are only two things. I get life or the death 

penalty.

The Court: That’s correct. At that point if you are convicted of 

capital murder, there are certain issues that the jury will answer, 

certain issues that the jury will answer. If your lawyer seeks to 

designate experts, you’re entitled to that. Do you understand that?

Villanueva: Yes, ma’am.

The Court: Now that you have retained counsel as opposed to 

having appointed counsel, there are different issues that are going 

to arise including the payment of those experts. Do you 

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understand that? You have to line up those experts and make 

them available for trial if that’s what your counsel wants.

Villanueva: But I don’t have no money to pay them.

The Court: You need to talk to your lawyer. . . . Your lawyer has 

told me that he is ready and I’m not going to grant you any 

continuances for obtaining witnesses at this late date including 

experts.

On September 11, 1996, voir dire began, and the guilt/innocence phase 

of trial commenced on October 1, 1996. The state and defense delivered closing 

arguments on October 9, 1996, and the jury found Villanueva guilty of capital 

murder that same day.

The punishment phase began later in the day on October 9. After the 

state presented its punishment witnesses, the defense rested without offering

any evidence. Campa then had the following colloquy with Villanueva out of 

the presence of the jury:

Campa: Mr. Villanueva, is it your decision not to have any of your 

family testify at the punishment phase of this case?

Villanueva: That’s correct.

Campa: Did you give me the instruction not to call any of your 

family members to the stand?

Villanueva: That’s true.

Campa: Did you also give me the instruction not to call any other 

witnesses to the stand at the punishment phase?

Villanueva: That’s true.

Campa: Did you also decide not to take the stand during the 

punishment phase of your case?

Villanueva: That’s true.

On October 10, both sides delivered closing arguments, and that same day, the 

jury returned a verdict, answering Texas’s two special issues in a way that 

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required the court to sentence Villanueva to death. The Texas Court of 

Criminal Appeals (TCCA) affirmed Villanueva’s conviction on direct appeal.1

In state habeas, Villanueva argued, inter alia, that Campa provided 

ineffective assistance of counsel (IAC) because Campa “wholly failed to 

investigate or prepare a defense” for the mitigation special issues. Villanueva’s 

petition did not address the effect of his instructions to Campa to not call any 

mitigation witnesses.

The state habeas court rejected Villanueva’s mitigation-based IAC claim. 

It found that Villanueva failed to demonstrate that Campa “did not investigate 

potential punishment evidence or that punishment witnesses were available 

and that their testimony would have benefited the defense.” Alternatively, the 

court concluded that because Villanueva instructed Campa not to call 

mitigation witnesses, he had waived his mitigation-based IAC claim. 

Villanueva appealed to the TCCA, which adopted the lower court’s findings 

and conclusions and denied relief.2

Villanueva then filed a federal habeas petition, which included his 

mitigation-based IAC claim. Noting that “Villanueva has not shown a basis to 

question his waiver,” the district court concluded that Villanueva’s decision to 

prohibit counsel from calling mitigation witnesses precluded his IAC claim. 

Additionally, the district court concluded that Villanueva’s claim failed on the 

prejudice prong of Strickland because he failed to show what mitigation

evidence should have been presented. The district court denied a COA on all 

of Villanueva’s habeas claims.

 

1 Villanueva v. State, No. 72,612 (Tex. Crim. App. Sept. 23, 1998) (not designated for 

publication).

2 Ex parte Villanueva, No. WR-49,591-01 (Tex. Crim. App. Oct. 31, 2001) (not 

designated for publication).

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In his application for a COA, Villanueva reurged his mitigation-based 

IAC claim, contending that his waiver of mitigation evidence was invalid 

because it was not “informed and knowing,” such that he could pursue the 

underlying IAC claim.3 This court granted a COA on the mitigation-based IAC

claim but denied a COA on Villanueva’s other claims.4

II

Villanueva’s appeal of the denial of his habeas petition is governed by 

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).5 If a

claim has been “adjudicated on the merits in State court proceedings,” 28 

U.S.C. § 2254(d)’s deferential standard applies. Section 2254(d) precludes a 

federal court from granting habeas relief unless the state court’s adjudication

of a claim was “contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court,” or was “based 

on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.”6 An adjudication is “contrary to” 

clearly established federal law when the state court decision differs from how 

the Supreme Court decided a case on a set of materially indistinguishable 

facts.7 Federal law is “unreasonabl[y] appli[ed]” when “the state court 

correctly divined a legal principle from the Supreme Court’s jurisprudence but 

misapplied that principle to the facts.”8

 

3 Villanueva v. Stephens, 555 F. App’x 300, 308-09 (5th Cir. 2014).

4 Id. at 309.

5 Pub. L. No. 104-132, 100 Stat. 1214.

6 28 U.S.C. § 2254(d).

7 Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005) (citing Williams v. Taylor, 529 

U.S. 362, 412-13 (2000)).

8 Id.

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When a merits adjudication has occurred, a federal court’s review is 

limited to “the evidence presented in the State court proceeding.”9 

Additionally, even if no merits adjudication has occurred, a state court’s factual 

findings are “presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing evidence.”10

III

We analyze IAC claims under § 2254(d)(1) as mixed questions of fact and 

law.11 To establish an IAC claim under the standard articulated in Strickland 

v. Washington, a petitioner must prove (1) counsel’s performance was deficient 

and (2) the deficient performance prejudiced the defense.12 The state court 

adjudicated both prongs of Villanueva’s IAC claim on the merits; therefore, 

Villanueva must prove that the state court’s decision “was contrary to, or 

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

determined by the Supreme Court of the United States.”13 Villanueva’s IAC 

claim founders on Strickland’s prejudice prong.

A

The Supreme Court addressed a similar scenario in Schriro v. 

Landrigan.14 Landrigan repeatedly blocked his trial counsel’s efforts to 

present mitigation evidence.15 In state postconviction proceedings, Landrigan 

 

9 28 U.S.C. § 2254(d)(2); Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011) (limiting 

review under § 2254(d)(1) to the record before the state court that adjudicated the claim on 

the merits).

10 28 U.S.C. § 2254(e)(1).

11 Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010).

12 466 U.S. 668, 687 (1984).

13 28 U.S.C. § 2254(d)(1).

14 550 U.S. 465 (2007).

15 Id. at 469-70.

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brought an IAC claim alleging that his attorney had failed to investigate 

certain mitigation evidence.16 The state court denied this claim, concluding 

that Landrigan’s instructions to counsel to not present mitigation evidence

precluded Landrigan from complaining in habeas that counsel should have 

presented other mitigation evidence.17

Section 2254(d)(1) applied to Landrigan’s IAC claim, so the federal courts 

were precluded from granting habeas relief unless the “state court’s 

adjudication of [the] claim ‘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.’”18 The Supreme Court 

examined its own decisions on counsel’s failure to investigate and present 

mitigation evidence.19 Although these cases addressed counsel’s duty to 

investigate, they proved insufficient to surmount § 2254(d)(1)’s deferential 

standard because the Court “ha[d] never addressed a situation” in which a 

defendant had “interfere[d] with counsel’s efforts to present mitigating 

evidence to a sentencing court.”20 Accordingly, the Court concluded that “it 

was not objectively unreasonable for [the state postconviction] court to 

conclude that a defendant who refused to allow the presentation of any 

mitigating evidence could not establish Strickland prejudice based on his 

counsel’s failure to investigate further possible mitigating evidence.”21

 

16 Id. at 471.

17 Id.

18 Id. at 473 (emphasis added) (quoting 28 U.S.C. § 2254(d)(1)).

19 Id. at 478 (citing Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 

510 (2003), and Strickland v. Washington, 466 U.S. 668 (1984)).

20 Id.

21 Id.

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In this respect, Villanueva’s IAC claim based on his counsel’s failure to 

present mitigating evidence is similar to Landrigan. The Texas state habeas 

court concluded that because Villanueva “instructed defense counsel not to call 

any witnesses . . . during the punishment phase of trial,” Villanueva had

waived his mitigation-based IAC claim. Section 2254(d)(1)’s “clearly 

established” law requirement refers to the Supreme Court’s decisions “as of the 

time of the relevant state-court decision.”22 The TCCA adopted the state 

habeas court’s findings of fact and conclusions of law in Villanueva’s case on 

October 31, 2001. Landrigan was decided almost six years later23 and 

discussed Supreme Court decisions issued as late as 2005.24 To be certain, the 

legal theory that the Court addressed in Landrigan is not exactly the same as 

the legal theory employed by the Texas courts in denying Villanueva relief. 

The state court in Landrigan concluded that a defendant who refused to allow 

mitigation evidence to be introduced could not later show prejudice25 whereas 

the Texas courts treated Villanueva’s refusal to allow mitigation evidence as a 

“waiver” of his IAC claim. But Villanueva cannot avoid the fact that, at the 

time the Texas courts adjudicated his IAC claim, the Supreme Court had 

“never addressed” a similar situation.26 Accordingly, the Texas habeas courts

did not act “contrary to” or “unreasonabl[y] appl[y]” Supreme Court precedent 

 

22 Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v. Taylor, 529 U.S. 

362, 412 (2000)) (internal quotation marks omitted).

23 See 550 U.S. at 465 (issued May 14, 2007); cf. Loden v. McCarty, 778 F.3d 484, 499-

500 (5th Cir. 2015) (addressing the Mississippi Supreme Court’s application of Landrigan).

24 See Landrigan, 550 U.S. at 478 (citing Rompilla, 545 U.S. at 381).

25 Id.

26 Id.

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in concluding that a defendant waives his mitigation-based IAC claim when he 

instructs counsel not to call any mitigation witnesses. 27

B

On appeal, Villanueva attempts to sidestep this unfavorable parallel to

Landrigan by challenging the validity of his waiver. Indeed, Landrigan 

himself attempted to argue that his decision not to present mitigation evidence 

was invalid because it was not “informed and knowing.”28 The Supreme Court 

noted that it had “never imposed an ‘informed and knowing’ requirement upon 

a defendant’s decision not to introduce evidence.”29 Assuming arguendo that 

such a requirement existed, the Court concluded that Landrigan’s waiver 

would have been valid.30

The State argues that Villanueva has forfeited the argument that his 

waiver was not informed and knowing because he failed to raise this issue in 

the district court. We agree. “[A] contention not raised by a habeas petitioner 

in the district court cannot be considered for the first time on appeal from that 

court’s denial of habeas relief.”31 Although the district court observed that 

“Villanueva has not shown a basis to question his waiver of the right to present 

mitigating evidence,” this is the first time in the record that the validity of 

Villanueva’s waiver is mentioned. Villanueva’s own efforts to invalidate his 

waiver came for the first time in his COA application in this court; his filings 

 

27 See 28 U.S.C. § 2254(d)(1).

28 See Landrigan, 550 U.S. at 478-79.

29 Id. at 479.

30 See id. at 479-80.

31 Pierce v. Thaler, 604 F.3d 197, 215 (5th Cir. 2010) (quoting Goodrum v. Quarterman, 

547 F.3d 249, 259 n.49 (5th Cir. 2008)) (internal quotation marks omitted); accord Bower v. 

Quarterman, 497 F.3d 459, 475 (5th Cir. 2007); see also Miller v. Turner, 658 F.2d 348, 350 

(5th Cir. Unit B Oct. 1981) (holding a new constitutional challenge not raised in district court 

was not properly before court of appeals).

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in the state and federal district courts are silent on the issue. Moreover, 

Villanueva has failed to explain why our normal forfeiture rule should not 

apply to this issue, despite the fact that the State raised forfeiture in its 

opposition to Villanueva’s COA application as well as in its brief on appeal. We 

conclude that Villanueva has forfeited his effort to invalidate his waiver. 

Accordingly, we cannot disturb the state courts’ conclusion that Villanueva’s 

instruction to counsel not to call mitigation witnesses waived his mitigationbased IAC claim.

C

In any event, Villanueva’s IAC claim fails because he has not introduced 

sufficient evidence to satisfy Strickland’s prejudice prong. To establish 

prejudice based on counsel’s failure to investigate, the petitioner “must allege 

with specificity what the investigation would have revealed and how it would 

have altered the outcome of the trial.”32 Likewise, in a claim based on uncalled 

witnesses, the petitioner “must name the witness, demonstrate that the 

witness would have testified, set out the content of the witness’s proposed 

testimony, and show that the testimony would have been favorable.”33

Villanueva acknowledges that the state habeas record contains little to 

no evidence that should have been introduced in the punishment phase of his

trial. Instead, he points to evidence of his good character and drug and alcohol 

problems introduced during the guilt/innocence phase of trial and contends 

that more mitigation evidence must be discoverable. He also notes that his 

counsel before Campa had secured experts for the punishment phase, but the 

record fails to specify their anticipated testimony. Because of the lack of 

 

32 Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (quoting United States v. Green, 

882 F.2d 999, 1003 (5th Cir. 1989)) (internal quotation marks omitted).

33 Id. (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).

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evidence in the state habeas record in support of the prejudice prong, 

Villanueva seeks an excuse from showing prejudice or an avenue to introduce 

new evidence in federal habeas.

Villanueva first contends the court should follow United States v. Cronic, 

which affords a petitioner a presumption of prejudice in certain situations.34 

However, Cronic only applies when an attorney’s failure to subject the 

prosecution’s case to adversarial testing is “complete.”35 During punishment, 

Campa cross-examined the state’s witnesses and argued for a life sentence. 

Therefore, Cronic’s presumption of prejudice does not apply, and Villanueva

must demonstrate prejudice under Strickland, namely that “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.”36

Section 2254(d) prevents Villanueva from introducing new evidence

supporting his mitigation-based IAC claim in federal court.37 Villanueva 

argues that his state habeas counsel’s “failure to submit more thorough 

supporting evidence” on his IAC claim was itself ineffective, such that the 

Supreme Court’s decisions in Martinez v. Ryan38 and Trevino v. Thaler39

permit this court to remand for an evidentiary hearing in the district court. 

But this court has held that “Martinez does not apply to claims that were fully 

 

34 466 U.S. 648, 658-59 (1984).

35 Bell v. Cone, 535 U.S. 685, 697 (2002).

36 Strickland v. Washington, 466 U.S. 668, 694 (1984).

37 See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under § 2254(d)(1)

is limited to the record that was before the state court that adjudicated the claim on the 

merits.”); see also 28 U.S.C. § 2254(d)(2) (also limiting federal review to “the evidence 

presented in the State court proceeding”).

38 132 S. Ct. 1309 (2012).

39 133 S. Ct. 1911 (2013).

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adjudicated on the merits by the state habeas court because those claims are, 

by definition, not procedurally defaulted.”40 The Texas courts adjudicated 

Villanueva’s IAC claim on the merits, and thus, Martinez and Trevino are 

inapposite.41

In sum, because there is no evidence in the state habeas record that 

shows that Villanueva was prejudiced by Campa’s performance and because 

Villanueva does not have a right to introduce new evidence in federal court, 

Villanueva’s mitigation-based IAC claim does not satisfy Strickland’s prejudice 

prong.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

40 Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir. 2014).

41 See id. at 395.

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