Opinion
Civil Action No. 5:13-CV-233-C
08-01-2016
ROSENDO RODRIGUEZ, III Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
DEATH PENALTY CASE MEMORANDUM OPINION AND ORDER
Rosendo Rodriguez, III ("Rodriguez") petitions for a writ of habeas corpus under 28 U.S.C. § 2254, contending that his state conviction and death sentence are unconstitutional. The Court held a hearing at which both parties appeared and presented argument. Having considered the parties' arguments, as well as the pleadings, the state court records, and the relevant law, the Court denies the petition and dismisses this action with prejudice.
SUMMARY OF THE CASE
I. Pretrial
On September 13, 2005, workers using heavy equipment to spread and compact garbage in a Lubbock city landfill found the body of Summer Baldwin in a suitcase. Baldwin, a prostitute, had been a witness in a federal counterfeiting case, which triggered FBI involvement in the investigation of her death. Financial records obtained via federal grand jury subpoena revealed that Rodriguez's debit card was used to purchase an identical suitcase at Walmart the day before. The store's surveillance video showed that Rodriguez matched the description of the man last seen with Baldwin alive. Hotel and bank records indicated that Rodriguez's debit card was also used to rent a hotel room in Lubbock under the name "Thomas" Rodriguez. Based on the foregoing information, Rodriguez was arrested at his parents' home in San Antonio.
Rodriguez retained Albert Rodriguez ("Albert") as counsel. Albert is not related to Rodriguez but was an acquaintance of Rodriguez's father, a well-known criminal defense attorney from Wichita Falls. Three weeks after his arrest, Rodriguez gave a recorded statement to the police, with Albert present, admitting that he had engaged in consensual sex with Baldwin but killed her in self-defense after she attacked him with a knife. The ongoing police investigation also linked Rodriguez to the disappearance of 16-year-old Joanna Rogers, who had been missing for more than a year.
In the summer of 2006, Rodriguez negotiated a plea bargain with the assistance of new counsel, Jeff Blackburn. Rodriguez agreed to plead guilty to Baldwin's murder and disclose his involvement in Rogers's murder. If his information could be corroborated by the recovery of Rogers's body, the State would reduce the capital murder charge to murder, offer a sentence of life imprisonment, and grant Rodriguez immunity from prosecution for Rogers's murder. Rodriguez confessed to Rogers's murder, and her body, like Baldwin's, was found in a suitcase in the Lubbock city landfill.
The plea agreement did not go forward as planned, however. On the scheduled day in October of 2006, Mr. Blackburn regretfully informed the trial court of a bizarre series of events, the likes of which he had never encountered in his law practice. For the preceding twenty-four hours, Rodriguez had maintained that he did not understand anything he was being told. Rodriguez told the trial judge he did not understand his questions. As a result, the plea did not go forward, Mr. Blackburn withdrew from the case, and the State gave notice of its intent to seek the death penalty. Richard Wardroup and Fred Stangl were appointed as new counsel. The trial court granted a change of venue because of publicity surrounding the search for Rogers's body; in March of 2008, the parties proceeded to trial.
II. Trial
The prosecution alleged two different theories of capital murder: (1) intentionally or knowingly causing Baldwin's death while in the course of committing or attempting to commit aggravated sexual assault, and (2) intentionally or knowingly causing the death of more than one person in the same criminal transaction, specifically, Baldwin and her child in utero. See Tex. Penal Code Ann. § 19.03(a)(2), (7). The State presented evidence showing that Rodriguez had been in Lubbock for training with the United States Marine Corps Reserve when he picked up Baldwin in the early morning hours of September 12, 2005, and took her to his hotel room where he beat, strangled, and sexually assaulted her. He then purchased the suitcase, placed her body in it, and threw it in a dumpster. The defense argued that the sex was consensual, that Rodriguez had no knowledge of the pregnancy, and that his Marine combat instincts took over and he killed Baldwin accidentally in self-defense after she wielded a knife at him. The jury returned separate guilty verdicts on each theory.
All cites to the Texas statute are to those then in effect, unless otherwise noted.
At the punishment phase, the State introduced evidence of five other sexual assaults committed by Rodriguez and a misdemeanor theft charge for which he had served probation. The jurors received evidence connecting Rodriguez to the disappearance of Rogers, but they did not receive his confession to her murder. The defense introduced evidence and argument that Rodriguez could safely serve a life sentence in prison, that Rodriguez was a respectful, intelligent person, and that Rodriguez grew up in a home with an abusive, domineering, alcoholic father. The jury answered two special issues in a way that required a death sentence under Texas law. See Tex. Code Crim. Proc. Ann. art. 37.071, §§ 2(b)(1) and (e)(1).
III. Post-conviction proceedings
The trial judge appointed attorney J.R. Wall on direct appeal and Paul Mansur as state habeas counsel. Mr. Wall filed a motion for new trial that the trial court denied after a live hearing, and then filed a brief raising forty-two claims on appeal. The Texas Court of Criminal Appeals ("CCA") affirmed the conviction. Rodriguez v. State, No. AP-75901, 2011 WL 1196871, at *1 (Tex. Crim. App. May 4, 2011) (not designated for publication), cert. denied, 132 S. Ct. 814 (2011).
Mr. Mansur filed a state habeas application raising twenty-one grounds for relief. After a six-day hearing, the convicting court made written findings and conclusions recommending that reliefbe denied. The CCA reviewed the record, adopted the lower court's findings and conclusions, and denied habeas relief. Ex parte Rodriguez, No. WR-78127-01, 2013 WL 1920737, at *1 (Tex. Crim. App. May 8, 2013). Rodriguez then filed his amended federal petition raising twenty-six claims for relief. All but one of these claims has been adjudicated on the merits in state court.
AEDPA STANDARD OF REVIEW
A claim adjudicated on the merits in state court may not be relitigated in federal habeas court unless it (1) is "contrary to" federal law then clearly established in the holdings of the Supreme Court or "involved an unreasonable application of such law, or (2) "is based on an unreasonable determination of the facts" in light of the record before the state court. See § 2254(d); Harrington v. Richter, 562 U.S. 86, 100 (2011). These determinations are limited to the record that was before the state court that adjudicated the claim on the merits. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). For purposes of § 2254(d)(1), "clearly established federal law" is the Supreme Court precedent that existed when the state conviction became final. Williams v. Taylor, 529 U.S. 362, 379-80 (2000). A state court's decision is "contrary to" Supreme Court precedent if the state court applies a rule that contradicts governing law or confronts facts that are materially indistinguishable from the relevant precedent and arrives at a different result. Coleman v. Thaler, 716 F.3d 895, 901 (5th Cir. 2013) (quoting Williams, 529 U.S. 406). A state court decision is based on an "unreasonable application" of such law when the state court identifies the correct governing legal principle but applies it unreasonably to the facts of the case. Id. at 901-02. The decision must be "objectively unreasonable," not merely wrong, and even "clear error" will not suffice. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
All subsequent references to § 2254 are to 28 U.S.C. § 2254.
Factual "determinations" in a state court decision are presumed correct, and a petitioner bears the burden of rebutting them by clear and convincing evidence. § 2254(e)(1); see Burt v. Titlow, 134 S. Ct. 10, 15 (2013). A "decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-Elv. Cockrell, 537 U.S. 322, 340 (2003); § 2254(d)(2).
Congress meant these conditions to be difficult to meet, and they stop short of imposing a complete bar on the relitigation of claims already rejected in state proceedings. Richter, 562 U.S. at 102. Thus, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id.
CLAIM 1: ASSISTANCE OF TRIAL COUNSEL
Rodriguez asserts that trial counsel were ineffective for failing to conduct a more thorough mitigation investigation, present more incidents of abuse and family dysfunction, investigate his father's medical and mental-health records, and present non-family witnesses to corroborate the family's testimony about his father's abuse, alcoholism, and mental health issues. Respondent contends the state habeas court reasonably rejected this claim after a lengthy hearing.
I. Strickland v. Washington
The clearly established law for ineffective-assistance claims begins with Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Id. at 687-88. A petitioner must also demonstrate prejudice, meaning a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors the result of the proceeding would have been different. Id. at 694.
Regarding the duty to investigate, strategic decisions made by counsel following a thorough investigation of law and facts relevant to plausible options are "virtually unchallengeable." Id. at 690. "[S]trategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 691. When assessing possible prejudice from an allegedly deficient sentencing investigation, the reviewing court reweighs the evidence in aggravation against the totality of available mitigating evidence and determines whether there is a probability, sufficient to undermine confidence in the outcome, that the jury would have assessed a life sentence. See Wiggins v. Smith, 539 U.S. 510, 534 (2003).
In addressing the claims against trial counsel, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable," not whether trial counsel's performance fell below the Strickland standard. Richter, 562 U.S. at 101. This review is "doubly deferential," meaning the Court takes a "highly deferential" look at counsel's performance through the "deferential lens of § 2254(d)." Pinholster, 563 U.S. at 190. Rodriguez must therefore demonstrate it was unreasonable for the CCA to conclude (1) that he did not overcome the strong presumption of competence and (2) that he failed to undermine confidence in the jury's sentence of death. See id.
II. Background facts
A. Aggravating evidence at 2008 trial
The aggravating evidence in this case shows that Rodriguez, acting alone, planned to commit a murder while in Lubbock. He reserved a room under a different name at a hotel separate from the rest of his unit. (32 RR 300, 314; 34 RR 76.) He rented the truck that he used to pick up Baldwin. (32 RR 211, 232.) According to his recorded confession, he first picked up Baldwin on Saturday when he saw her on the road, distressed from a domestic altercation. He took her to his hotel room so she could clean up and then he took her home. (34RR41-44; SX253 (DVD recording), time stamp 00:10:28 - 00:17:30.) The following night, he again saw her walking down the road and offered her a ride. This time, he took her to his hotel room and sexually assaulted her vaginally and anally, causing injuries to her thighs, her urethra, her cervix, and anal and vaginal areas. (35 RR 46-52; 7 SHRR 91; SX 253 time stamp 00:23:43 - 00:33:21.) He beat her, causing fifty-plus areas of blunt-force injury, then strangled her and left her in the hotel room while he went out to purchase a suitcase and disposable gloves. (33 RR 128; SX 250; SX 253, time stamp 00:33:30 - 00:40:22.) Although he had received CPR training as a Marine, he did not attempt to revive Baldwin. (SX 253, time stamp 00:42:40 - 00:43:40.) He stuffed her naked body in a suitcase and threw it in a trash dumpster. He threw her wallet in a different dumpster and separately disposed of her clothing, as well as a bloody bedsheet and towels. (SX 253, time stamp 00:46:34 - 00:52:44; 32 RR 98-99; 33 RR 6-7.) He slept, ate a meal, and watched a movie in the same hotel room. He checked out the following day. (32 RR 318-19; 34 RR 18; SX 253, time stamp 00:54:26 - 00:55:48.) Laboratory tests connected both Rodriguez and Baldwin to DNA on a latex glove found in a hotel trash can, and Rodriguez could not be excluded as a contributor of sperm found on an anal swab taken at autopsy. (34 RR 147-49, 159.)
The reporter's record from trial is cited RR, preceded by volume number and followed by page number. The clerk's record from trial is likewise cited CR. The state habeas reporter's record is SHRR; the state habeas clerk's record is SHCR. SX refers to State trial exhibits; DX refers to defense trial exhibits.
The pagination for 7 SHRR, 8 SHRR, and 9 SHRR is the .pdf pagination, as the pages in these exhibit volumes are not numbered.
On his way home from Lubbock, Rodriguez texted a smiling picture of himself to a woman with the caption, "I miss you and love you tons." (35 RR 178.) Three days after the murder, Rodriguez had used his computer to search for single women on social websites. (37 RR 148-55.) Computer and telephone records also connected Rodriguez to the 2004 disappearance of Joanna Rogers. (37 RR 122-28, 143-47.)
After his arrest, Rodriguez insisted his counsel provide to police two knives that he had taken from Baldwin and had kept in a backpack in his parents' home. He also insisted counsel arrange an interview with the police so that he could give a statement asserting he had acted in self-defense. (40 RR 23-26, 28, 33.) Subsequent trial testimony showed, however, that Baldwin sustained injuries vastly inconsistent with the simple "chokehold" story that Rodriguez told to the police. Testimony also showed that Rodriguez had sustained no injuries consistent with defending himself against a knife attack. (34 RR 23-24; 35 RR 59-60, 67.)
Five women testified at sentencing that they were sexually assaulted by Rodriguez, sometimes more than once, while in high school or college. One of these victims suffered from cystic fibrosis and testified Rodriguez was the only boy she had dated in high school, although he dated other girls. They were both sixteen years old. She did not report the rapes out of fear and because he would cry, apologize, and charm her into staying with him. (37 RR 20, 28.) Another victim, whom Rodriguez had recruited into his Catholic college fraternity, testified that he offered to take her home from a party after she drank too much alcohol. He raped her in her dorm room and told her not to tell anyone or she would not be allowed to join the fraternity. She found out later that he had given her a sexually transmitted disease. (37 RR 38-43, 46.) Another fraternity pledge recruited by Rodriguez testified that he sometimes forced her to have aggressive sex during their relationship and would become a "scary, controlling kind of evil person." He told her not to tell anyone about their relationship or she would get kicked out of the fraternity, and she was afraid to break up with him. (37 RR 59-65.) Another fraternity pledge testified that she had a relationship with Rodriguez, and he told her to keep it a secret or they would get in trouble with the fraternity. She found out he was dating other people, however, and when she confronted him about it, he raped her. It was her one and only sexual experience before she married. (37 RR 82- 87.) The fifth rape victim was a 16-year-old girl. She met Rodriguez, who was twenty-three, at the photography shop where he worked. He asked for her telephone number and then called her, asking if he could visit. She agreed. That night, Rodriguez entered her bedroom through a window and raped her. She reported the rape to police, but the police believed she was "slutty" to allow people through her bedroom window, and her mother told the police not to ruin Rodriguez's life over a misunderstanding. (37 RR 101-05.)
On the weekend before Baldwin's murder, Rodriguez had spent time with friends from college who would later testify about his magnetic personality, his cocky arrogance, and his ability to easily attract girls and have meaningless sex. (32 RR 155, 168, 177, 187-89). Rodriguez told them false stories about serving in the war in Iraq, sleeping with Iraqi girls, and shooting an Iraqi boy who had tried to kill him. (32 RR 153-54, 174.)
B. Mitigation evidence at 2008 trial
Trial counsel presented twelve witnesses at the sentencing phase. Thelia Chaffin testified that she worked for eighteen years as a paralegal for Rodriguez's father ("Rosendo") and watched Rodriguez grow up. She described him as a mature, well-behaved, gentlemanly young child and a respectful teenager. She testified the Rodriguez family was "a loving family that did everything together" and denied seeing any abuse in the home, but she admitted that Rosendo "sometimes drank to excess." (37 RR 186-94.) Gene Douglass was a long-time family friend who met Rosendo in the Air Force before they attended law school. Douglass saw Rodriguez weekly from about the age of one until he attended junior high school. He described Rodriguez as extremely courteous and polite, appropriate and respectful towards his sisters and his mother, with a well-mannered ability to speak to adults. But Douglass agreed he had no reason to know what went on in the family "behind closed doors." (37 RR 196-204.) Barbara Perkins was a host-parent to a girl from Germany who dated Rodriguez for a period of time. Perkins testified that Rodriguez treated the girl very well and generally followed Perkins' house rules on dating. She described Rodriguez as very respectful and never inappropriate. (37 RR 204-18.)
Dr. Ana Rodriguez, the oldest sister of Rosendo, testified that she has been a part of Rodriguez's life since his birth and that he spent summers at her condominium on South Padre Island. She described him as loving and playful and a joy to have around. Ana described her work as a counselor-educator and senior administrator at a large Texas university. Based on that experience, she thought Rodriguez had the greatest potential of all the cousins, and she believed he could have been the first Hispanic President of the United States. He was intelligent, expressive, respectful, good-looking, and a critical thinker, with tremendous social and verbal skills. (37 RR 219-30.)
Rodriguez's father, Rosendo, testified that he obtained his law licensed in 1977 but closed his practice in 2004 due to disability. He and his wife of thirty-seven years had three children: Sofia, Olivia, and then Rodriguez, who was 28 years old at the time of trial. Rosendo described Rodriguez as a courteous, rambunctious, intelligent child who played soccer and football and helped run cattle on his grandfather's ranch. Rosendo showed family photographs and described family trips. He said Rodriguez had a normal social life in high school, was fairly popular, and expressed a desire to attend the United States Naval Academy, but his grades were not good enough. Rosendo admitted there was a time when he was a "very bad alcoholic," which he attributed to the stress of practicing law. He said, "I am ashamed to say that I drank everything I could get my hands on," and he admitted that his drinking bred stupidity and violence towards his wife and daughters. He stated that he was violent towards his son only once, when Rodriguez was about fifteen or sixteen. Rosendo was very ashamed of his behavior and said he had not taken a drink in about ten years, and the violence stopped. He did not know how his son may have been affected by his violence. (37 RR 308-25.)
Rodriguez's oldest sister, Sofia, testified she is the Director of Student Diversity Relations at Texas Tech University. She described her father as a domineering, violent man when he drank and said she tried to protect her brother and sister when they were growing up. Their mother bore the brunt of the violence. Rosendo also had a lot of guns and machetes all over the house, and he once threatened their mother with a machete. Their father told Rodriguez not to cry because "only putas ["bitches"] cry," and told Rodriguez to be loyal, not like his sisters and stupid mother. Sofia knew her father loved her, but he valued boys more, and her brother was the "apple of his eye." For Sofia and Olivia, "there was no pleasing him." Sofia said they could not tell anybody about the fear they lived in because nobody would have believed them. Her father was connected with "very high people" and "very low people" in the community, and she knew their mother would have been killed. Sofia said that Rosendo's testimony describing only two or three incidents of violence was inaccurate because he had been so intoxicated he "couldn't remember what the hell he was doing." She described a particular incident that occurred when Rodriguez was an infant and she had to put Olivia, then a toddler, out of a bedroom window until their father's law partner, Hank Anderson, arrived and took them home for the night. Sofia said there were many other incidents throughout her life that were comparable to the "window incident." (37 RR 327-43.)
Rodriguez's mother, Lupe, testified that her son was respectful with adults, full of energy, and enjoyed sports. She described a family trip to Bill Clinton's first inaugural ball and showed pictures of Rodriguez's common-law wife and 6-year-old son, Rosendo IV. Lupe also described a time when her husband, Rosendo, would drink every day and be violent: he would punch her, slam her against a brick wall, grab her by the neck, throw her down, and kick her. The children saw quite of a bit of this violence, and she believed it showed them that she had no value. She agreed with Sofia that if Rosendo testified he was violent only two or three times, it was because he was drunk and could not remember accurately. (37 RR 344-53.)
Gisenia Abad identified herself as Rodriguez's common-law wife. She testified that they lived together in 2001 and had a child nine months later. She is completely in love with Rodriguez and described him as a caring, attentive father, although Rodriguez was not faithful to her and chose to move on. Abad told the jury she wants her son to know his father. (37 RR 362-72.)
The defense presented additional testimony from two detention officers who described Rodriguez's lack of disciplinary incidents and his respectful and helpful behavior while in jail. (37 RR 163, 174-80.) A prison classification expert, S.O. Woods, also testified extensively for the defense about the circumstances and privileges of the various inmate classifications. Woods testified that an estimated 80% of inmates do well in prison and that Rodriguez's good behavior in jail was the best predictor of his future behavior in prison. (37 RR 250-307.) Finally, Pastor Raul Hernandez, a former educator and Vietnam veteran, testified about Rodriguez's religious transformation while incarcerated. (37 RR 356-60.)
C. Mitigation evidence at 2012 state habeas hearing
At the state habeas hearing, Rodriguez presented additional testimony from three trial witnesses: his mother, Lupe; his aunt Dr. Ana Rodriguez; and Thelia Chaffin. Lupe expanded on her trial testimony with additional details about her husband's abuse and drinking, specifically, the worsening progression after law school, the amount and type of liquor he drank, and the frequency of the abuse (three or four times a week or every day that he would drink). She also said Rosendo disciplined the children by lining them up against the wall and yelling, pointing, slapping, and humiliating them. She said Rosendo verbally abused and hit Rodriguez with his hand and a belt from age two to age eighteen. Although Rodriguez was the apple of his father's eye, this favoritism led to high expectations and great disappointment when expectations were not met. Lupe testified about the following specific instances of abuse: (1) the first time Rosendo abused her, when she was pregnant with Olivia, in the presence of a couple named Tony and Irma; (2) another occasion when she was pregnant with Rodriguez; (3) the "after-dance/baseball bat" incident where Rosendo pushed her against a brick wall and Rodriguez, who was thirteen, hit his father with a plastic baseball bat; (4) the "downtown Wichita Falls incident," when Rodriguez was two or three, where Rosendo hit her while she was driving because he did not like her haircut; (5) the "Alice incident" when Rodriguez was twelve or thirteen, where Rosendo assaulted Lupe at the home of his sister, Becky Palacios; (6) the "red light incident" when Rodriguez was twelve, where Rosendo hit Lupe while she was driving and she contemplated running a red light to attract the attention of a police car, but Rosendo told her the officer was his client; (7) the "quinceañera incident," when Rodriguez was eleven, where Rosendo attacked her after they were accidentally locked out of their home, and his sister Ana intervened; (8) the "hotel incident" when Rodriguez was five, after which Lupe secretly took the children to a hotel for the night, only to be found by Rosendo the next morning; and (9) a "gun incident" where Rosendo pointed a gun at her head and said, "Say hello to Jesus for me." Lupe also described threatening phone calls they received three or four times a year from Rosendo's criminal clients. Rosendo showed them all how to protect themselves with guns, which he kept all over the house. Lupe said they were involved in a car accident in 1997 which caused Rosendo's health to decline, and Rosendo stopped drinking in 1998, about the time Rodriguez graduated from high school. Rosendo was diagnosed with bipolar disorder in 2007 and died in 2011 at the age of 62. Lupe said Rosendo had depression toward the end of his life, as did his father and her father. (2 SHRR 7-156.)
Dr. Ana Rodriguez testified at the hearing that her brother, Rosendo, was an outstanding father, physically affectionate with everybody, and caring and protective of his wife. He was the authority figure, decision maker, and protector, while Lupe took care of the home, looked after the children, and was subservient to her husband. Rosendo had a strong, loving relationship with his son, who was the apple of his eye. Rosendo had high expectations for Rodriguez and set strict rules for his children's education, like their own father did. Ana testified at the hearing that she saw Rosendo drunk in public one time, at Sofia's quinceañera party. Lupe called her after that, concerned about Rosendo's drinking. Ana said Rosendo eventually stopped drinking "cold turkey." Ana said Rosendo became depressed when their father died in 1989 and when their brother died in 1999. Their brother and their father both exhibited signs of depression during their lives, as did four uncles, who also drank alcohol. She had a cousin who died of alcohol-related disease. Ana stated that Rosendo began taking pain medication after the 1997 car accident. He was diagnosed with bipolar disorder in 2007 and was committed to a mental hospital. He took his medication erratically and was often in a stupor or asleep. This behavior worsened as the trial approached but, at the trial itself, he was more conscious of what he was doing. (4 SHRR 12-124.)
Chaffin testified at the hearing that her trial testimony focused on Rodriguez rather than Rosendo, her boss. She then offered details about her experience working for Rosendo, who was a well known and respected criminal defense attorney. She described him as abusive and said she felt like a "battered spouse." She had no personal knowledge, however, of any abuse in the home. (3 SHRR 5-81).
Rodriguez also presented hearing testimony from witnesses who had not testified at the trial, specifically, his sister Olivia, his cousin Ana Maria Salazar, his aunt Becky Palacios, and his father's legal assistant, Patrice Franklin. Olivia testified about the following instances of abuse: (1) the window incident, (2) the Alice incident, (3) the hotel incident, (4) the quinceañera incident, and (5) a "spanking incident" where her father left bruises on her that her mother was nonchalant about. Olivia said her father hit, punched, and kicked her mother when he was both drunk and sober. He verbally abused his wife and children, including Rodriguez, whom he physically abused him from age three to age sixteen. Rodriguez was the favored child, however, and Olivia and Sofia were treated worse. Olivia stated that she asked all four of her aunts for help but no one intervened. Olivia was frightened by her father's association with some of his criminal clients and described incidents of vandalism and gunshots fired at their house, although she did not connect these with any client. Olivia mentioned her parents' car accident in 1997, her father's weight gain, the decline of his law practice, and foreclosure of the family home, after which her parents moved into her apartment in San Antonio. She confirmed her father's bipolar disorder and medication abuse that resulted in a psychiatric hospital stay because he had "passed out" in the car-pool line waiting to pick up her daughter at school. Olivia said her father had told her that if she wanted to be involved in her brother's defense, she had to go through him, and Olivia denied making an "end run" around her father in this regard. (2 SHRR 157-270.)
Ana Maria Salazar is Rodriguez's first cousin and eleven years older than him. Salazar described Rosendo as a very loving uncle who was kind and protective when sober but aggressive, volatile, and abusive when intoxicated. Olivia received the brunt of abuse, while Rodriguez was his pride and joy. Salazar described a "gun incident" that occurred when she was visiting her cousins during which she located a gun under Rosendo's bed and hid it from him. She testified about the quinceañera incident as well. She opined that depression runs in their family and gave examples. (3 SHRR 82-124.)
Salazar's mother, Becky Palacios, testified that she is three years older than Rosendo. When Rodriguez was born, she considered him to be "her" baby and described him as funny, loving, polite, and very intelligent. Palacios's husband collected change in a jar that was a college fund for Rodriguez to attend Harvard. Palacios also described two incidents of violence: (1) the Alice incident, which happened in her home; and (2) a "curfew incident," where Rosendo grabbed Sofia and tried to kick her when she came home past her curfew. Palacios said she had brief conversations with her sister-in-law, Lupe, about her marriage, but Lupe never really asked for help and the children never spoke to Palacios about abuse. Palacios thinks depression runs in their family and she gave examples. She also testified that her brothers and her uncles drank a lot, but not her father. She did not see that Rodriguez had any problems with alcohol. (3 SHRR 126-72.)
The last habeas witness was Patrice Franklin, who worked as a legal assistant for Rosendo for eight months in 2000. Rosendo hired her and Mary Brittain on the same day, and they both quit on the same day. Franklin described Rosendo as controlling, intimidating, and yelling all the time. He often paged her for no good reason. She worked every weekend, and he paid her less than the salary they had agreed upon. She said Rosendo told her he was the head of the Mexican Mafia. Everyday, he would show her a gun that he carried with a wad of cash in a pink shopping bag, and tell her, "Say hello to my little friend," which he thought was funny. He also gave her cash to pay his personal bills and the payroll. She testified that Rodriguez came into the office several times and received money, but Rosendo expressed anger and disgust at his son every time he came in. Rodriguez was tearful and intimated and did not speak back. (4 SHRR 125-72.)
Rodriguez submitted affidavits from Mary Brittain, Steve Garza, and Rosendo. Brittain's affidavit asserts that Rosendo was an abusive, out-of-control boss with a terrible temper. She believed he was on drugs, and she overheard him say he was a member of the Mexican Mafia. He always carried a lot of cash, and there was one room in the office that stayed padlocked, where men would drop off paper bags almost daily. Brittain never met Rosendo's wife or children, but she believed his household must have been a nightmare. (1 SHCR 328-33).
Rosendo was deceased at the time of the state habeas hearing.
Steve Garza is the father of Olivia's second child. Among other things, Garza's affidavit described Rosendo's controlling and abusive behavior with Olivia. In Garza's opinion, Rosendo did not show respect to any woman, and Rodriguez demonstrated the same disrespect to his mother and "women in general." Garza stated Rosendo abused pain medication, borrowed Garza's pain medication, and spent huge sums of money buying medication on the street. (3 SHCR 755-59.)
In his affidavit, Rosendo stated that he copied his father's trait of demanding that his children excel in school. He described the male culture when he was growing up as self-centered, and he described a long history of disrespect and abuse toward women in the family. He said his father was verbally abusive toward his mother and delighted in making her feel inferior. He believed he passed on these same traits to his son by abusing Lupe. Rosendo stated he was a heavy drinker until 1998, which exacerbated his violent behavior. But he believed his behavior was also a symptom of bipolar disorder, which was diagnosed in 2007 (about two years after the Baldwin murder and a year before trial). He said Rodriguez's trial counsel did not question him about this diagnosis. (1 SHRR 241.)
The state habeas court also considered the 2012 deposition of Hank Anderson, Rosendo's former law partner who had retrieved Lupe and the children after the window incident. (7 SHRR 103 (Exhibit 18).) Anderson stated in his deposition that their law partnership split in 1996. He said Rosendo was very "macho" around his family and ruled with an iron fist, sometimes cordial, sometimes gruff. Anderson did not suspect physical abuse but would not be too surprised if Lupe said there was. Rosendo behaved the same way with his secretary to a certain extent, but Anderson never felt like he had to intervene. He described Rosendo's professional behavior as verbally forceful, not abusive, although he admitted there was one client who had complained that Rosendo had been verbally abusive, demanding, and disrespectful to her. Anderson said that Rosendo insisted his clients comply with payment schedules and meet deadlines for providing evidence and that his style of practicing law matched his personality. During their partnership, he and Rosendo both carried pistols for protection and occasionally went out for drinks. Anderson described three clients who met with Rosendo behind closed doors about once a month for no apparent reason, which made Anderson uneasy. After their partnership dissolved, he heard rumors from an unknown source that Rosendo was associated with the Mexican Mafia. He could not say whether this was true, but Rosendo once told him that if he needed something to "happen" to a divorce client's belligerent husband, he could get it done. Anderson also agreed, however, that Rosendo would not have knowingly associated his family with drug dealers. (7 SHRR 103-66.)
Finally, at the habeas hearing, the State offered over 800 pages of Rosendo's medical and mental-health records. (8 SHRR, 9 SHRR). The state habeas court denied the claim that counsel was ineffective, based largely on credibility assessments of the habeas evidence.
III. Failure to apply first prong of Strickland to each habeas witness
Initially, Rodriguez complains that the state court failed to apply the first prong of Strickland to each hearing witness. (Pet. 35, 68, 80, 89, 94, 95.) After discussing evidence from both the trial and the habeas hearing, however, the trial court judge, who was also the habeas judge, found no deficiency under Strickland. (5 SHRR 91.) This Court reviews for reasonableness the state court's decision, not the written opinion explaining that decision. Matamoros v. Stephens, 783 F.3d 212, 220 (5th Cir. 2015); Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (noting that federal courts review for reasonableness the state court's ultimate decision not every jot of its reasoning). Further, a presumption of correctness attaches "not only to explicit findings of fact, but also to the unarticulated findings which are necessary to the state court's conclusions of mixed law and fact." Pippin v. Dretke, 434 F.3d 782, 788 (5th Cir. 2005)(citing Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)). The state court's failure to express its findings for each individual witness does not therefore remove Rodriguez's burden to establish the unreasonableness of the state court's ultimate decision under § 2254, nor does it demonstrate that the ruling was unreasonable.
IV. The state court's credibility determinations
Rodriguez next challenges the credibility assessments of Lupe, Olivia, Salazar, and Chaffin (Pet. 49, 62, 94), the state court's resolution of conflicting information from Anderson, Chaffin, and Franklin (Pet. 102), and the state court's failure to consider Garza's affidavit. (Pet. 94.) In reviewing such factual determinations, the Court is mindful that Rodriguez's mere disagreement with the state court's choice of who and what to believe does not demonstrate unreasonableness. See Orman v. Cain, 228 F.3d 616, 619 (5th Cir. 2000). Rodriguez bears the burden of rebutting the state court's factual findings by clear and convincing evidence. § 2254(e)(1); Titlow, 134 S. Ct. at 15. A "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).
A. Lupe Rodriguez
The state court found Lupe not credible because her children believed their mother exaggerated and confused events and because Lupe's testimony lacked details, conflicted with the testimony of her daughters, and became more detailed after cross-examination was completed. (5 SHRR 69.) The record supports these findings.
Lupe's children believed Lupe "tends toward the extravagant" and was prone to exaggerating and even confusing her stories (5 SHRR 138; 7 SHRR 78), and her testimony supports their assessment. Lupe's version of the quinceañera incident, for example, places her as the central target of her husband's violence and ends with her rolling down the lawn in her "beautiful blue formal" dress and hitting her head on a bird bath. Ana testified, on the other hand, that Rosendo directed all of his anger towards her (Ana) for "old hurts" and that it had "nothing to do with Lupe." (2 SHRR 56; 4 SHRR 54-58, 108.) Lupe also testified that her son was present at the quinceañera incident, while Ana said the only people there were herself, her sister Dolores, Lupe, and Rosendo. (2 SHRR 57; 4 SHRR 108.) Lupe's version of the Alice incident was also the most violent, describing how her husband hit her, slapped her, slapped Rodriguez, pushed Sofia and pushed Salazar, after which "everybody jumped in" and the only thing that stopped Rosendo from grabbing her throat was the intervention of Rosendo's brother and nephew. (2 SHRR 116-22.) Lupe's version conflicts with Olivia's, who stated that she awoke to yelling and saw her father push Sofia out of their parents' bedroom. She said there was screaming and yelling behind the closed door until Rosendo was persuaded to open it, at which time Lupe ran out of the bedroom and hid under a couch. (2 SHRR 175-78.) And Palacios's description of the same event, which occurred in her own home, was even more contrasting. Palaciox said Rosendo tried to beat up Lupe in the kitchen with the children present, and Palacios sent Lupe into the bedroom. (3 SHRR 131-35.)
The court's finding that Lupe lacked credibility is also supported by the fact that Lupe reported dramatic events that were not corroborated by Olivia even though they could have been, like the after-dance/baseball bat incident when Olivia would have been sixteen years old, and the red light incident when Olivia would have been fifteen years old. (2 SHRR 25, 53-55.) Lupe also failed to testify about events, such as the gun incident described by Salazar and the curfew incident reported by Palacios, even though both reportedly occurred in her home. (3 SHRR 96-99, 142.) Further, Lupe did not testify about the Alice incident until redirect examination, after a lunch break, at which time she also described more dramatic and severe threats from Rosendo's clients, including a time when Rosendo made Rodriguez search their house with guns drawn. (2 SHRR 113, 116-22, 127-29.) When challenged by the prosecutor about the change in the tone of her testimony, Lupe admitted she had spent the lunch break with her daughter but denied they discussed the case. (2 SHRR 148-50.) Nevertheless, Lupe's response to these questions triggered rehabilitation attempts by habeas counsel on re-direct examination. (2 SHRR 154-56.) Finally, Lupe admitted in her testimony that she would lie for her son and was eager to offer examples of lies she told to her husband, although she clarified that she was not lying in her testimony. (2 SHRR 141-42.)
B. Olivia Rodriguez
The state court found Olivia lacked credibility because details in her testimony were not corroborated by any other witness, and she failed to report things that both Sofia and Lupe reported. (5 SHCR 1474.) This assessment is supported by the record.
For example, Olivia testified that their father beat the children and beat Rodriguez from age three to age sixteen, and that she asked all of her aunts for help, to no avail. (2 SHRR 184-88, 190-91.) Her older sister Sofia, notably absent from the habeas hearing, did not describe any physical abuse of the children in her trial testimony. (37 RR 328-40.) And the two aunts who testified at the hearing, Dr. Ana Rodriguez and Becky Palacios, denied that the children ever asked for help from abuse. (3 SHRR 141; 4 SHRR 102-04.) The court could assign considerable weight the aunts' testimony because they had careers that would have given them some expertise (and responsibility) in recognizing and reporting signs of abuse. Ana is a retired university professor with a doctorate in guidance counseling education and received recognition for her work as a teacher of guidance counselors. (4 SHRR 14, 95.) Palacios is a retired educator who had been a high school teacher, a vice principal, a principal, a director of secondary education, and an assistant superintendent for her school district. (3 SHRR 126.)
Olivia's testimony about the time she spent with the mitigation specialist, Rob Cowie, to prepare for trial conflicted with Cowie's testimony, his report, and emails among the trial team. (2 SHRR 164-65, 233-34; 7 SHRR 64, 90, 92.) The record also refutes Olivia's testimony that she never attempted an "end run" around her father (2 SHRR 234) and suggests she was not as isolated from trial counsel as her testimony implied. For example, Cowie's mitigation report states that Olivia told them her father was directly responsible for the failed guilty plea in October of 2006, and she suggested strategies to get the family to support another plea agreement. (7 SHRR 72.)
Olivia also testified about a time her father left bruises on her legs that her mother ignored. (2 SHRR 186.) Lupe did not corroborate the bruise story, however. Olivia also did not mention the after-dance/baseball bat incident that her mother described, even though Olivia would have been sixteen years old. (2 SHRR 25.) Also, Olivia testified about the quinceañera incident as if she were there, which conflicted with Ana's testimony about who was present. (4 SHRR 108.) The state court reasonably found that Olivia's willingness to report on this incident cast serious doubt on her credibility. (5 SHCR 1492.)
Olivia's testimony was also inherently contradictory. On direct-examination, she blamed her father for giving her brother a "negative viewpoint of women in general." (2 SHRR 205.) Almost immediately afterwards, she readily agreed on cross-examination that her brother was kind, thoughtful, respectful, even solicitous to her and Sofia and the women in the family. She described him as respectful to the girls he dated and the women in their father's office. She was in disbelief about the murder, and agreed that all she had ever seen in her brother was a respectful, loving person who began to stand up to their father's abuse. (2 SHRR 209-210, 235.) Finally, Olivia admitted during her testimony that she called her brother at the jail and told him they were all going to come to the habeas hearing and "kick butt" for him, suggesting a willingness to exaggerate the truth. (2 SHRR 248-49.)
C. Ana Maria Salazar
The state court found Rodriguez's older cousin, Salazar, was not credible because she described events that other witnesses who would have been there did not mention, her testimony conflicted with other witnesses in significant respects, and she failed to mention a key incident that occurred in her home. (5 SHCR 1473-74.) This reasoning is supported in the record.
The Alice incident described by Lupe and Palacios (Salazar's mother) purportedly occurred in Salazar's home during a weekend celebration of Salazar's college graduation. Lupe even testified that Salazar called Rosendo's brother, the chief of police, for help. (2 SHRR 120.) Yet Salazar failed to mention this event in her testimony. Salazar also testified about the quinceañera incident as if she were there, stating that she ran outside when she heard her mother yell, and then ran back inside the house. (3 SHRR 104.) But the triggering event for Rosendo's behavior on this occasion was that the family was locked out of their house. (2 SHRR 56; 4 SHRR 54.) Therefore, Salazar could not have run in and out of the house as she described. And, as already noted, Salazar and Palacios were not there, according to Ana. (4 SHRR 108.) Palacios, in fact, stayed at a hotel for the event and expressed no knowledge of the quinceañera incident, even though she had attended the party. (3 SHRR 167.)
Finally, Salazar testified about a gun incident in the Rodriguez home when she was nineteen, during which Lupe and Rosendo had a fight and she hid a gun from Rosendo. (3 SHRR 96-99.) Although she testified that she called her mother and her aunt Ana from a telephone in Sofia's room during this traumatic event (3 SHRR 97) Palacios, Ana, and Lupe did not discuss this event during their testimony.
D. Chaffin. Franklin, and Anderson
At the hearing, Rodriguez offered testimony from Franklin and Chaffin, both of whom described Rosendo as an abusive employer who engaged in shady business practices and was possibly involved in the drug trade and Mexican Mafia. Rodriguez also offered the deposition of Rosendo's former law partner, Hank Anderson (6 SHRR 288), which characterized Rosendo's behavior at work as verbally forceful and grandiose, but not abusive. Anderson suggested Rosendo's behavior matched his personality and was at times appropriate to the situation. (7 SHRR 11, 14, 32-33, 48-49, 55, 60.) Anderson also did not think Rosendo would knowingly associate his family with drug dealers. (7 SHRR 164.) Rodriguez now challenges the state court's resolution of the conflicts between these, his own witnesses.
The state court's decision not to credit Chaffin's hearing testimony is supported in the record. (5 SHCR 1476-77.) Chaffin equated her work experience as Rosendo's paralegal with that of a "battered spouse," but this conflicted significantly with her position at the time of trial that Rosendo was a "kind and good man." (7 SHRR 79.) The state court found that Chaffin's change in testimony could possibly be explained by her opposition to the death penalty on religious grounds, which is supported by her testimony. (3 SHRR 76.) Her assertion that she tolerated eighteen years of abuse also tended to conflict with the fact that their families vacationed together in Cancun after fifteen years of employment, that Chaffin's son was an escort for Olivia's quinceañera, and that Chaffin held positions of leadership in her community, her church, and a real estate investment business. (3 SHRR 11, 43, 52-54, 59.)
The state court's credibility determination regarding Franklin is also supported. Even from a cold record, her testimony sounds exaggerated and dramatic rather than factual. Franklin admitted she had no knowledge of how Rodriguez was raised, but explained that she is a writer and her testimony is basically an extrapolation from having worked for Rosendo for eight months and having seen Rodriguez visibly shaken in his father's presence one or two times. (4 SHRR 160-62.) Franklin dramatically described being stalked and harassed by Rosendo after she quit her employment such that she filed a complaint with the police. But she could not produce the police report and admitted she had also accused another attorney, unrelated to this case, of stalking her. (4 SHRR 127, 157-58, 163-64.) Franklin testified that Rosendo called his daughter, Olivia, "damaged goods" because she "got pregnant in high school"; however, Olivia actually became pregnant in college. (2 SHRR 210-11; 3 SHRR 65; 4 SHRR 143.) The trial court could also reasonably conclude that Franklin was biased against Rosendo based on the litigation that followed her separation from the job and her obtaining a judgment against him for back wages that was never satisfied. (1 SHCR 330; 4 SHRR 126-29.)
The state court's decision to credit Anderson's description of the work environment rather than Franklin and Chaffin's is also supported by the fact that Chaffin and Franklin's testimony could have been corroborated by long-term employees who were not called to testify. These people included Claudia McDaniel, who worked for three years, Charlene "Sam" Beauchump, who worked for eighteen years, and associate counsel Dave Phillips, who worked for ten years. (2 SHRR 97, 100; 3 SHRR 41, 68.)
E. Failure to consider Steve Garza's affidavit
Rodriguez challenges the state court's failure to consider the affidavit of Garza, the father of Olivia's second child. (See 3 SHCR 709 n.4 and 755). The convicting court's written recommendation notes that Garza's affidavit was filed and that he did not testify. It does not discuss the contents of the affidavit. (5 SHCR 1471.) The Court assumes Rodriguez is correct that the state court gave this affidavit no weight.
The Court first observes that reliance on a paper record without live testimony does not preclude the AEDP A presumption of correctness that attaches to state court findings. See Morrow v. Dretke, 367 F.3d 309, 315 (2004). Further, it is not unreasonable to give less weight to an affidavit, as compared to witnesses who have been tested on cross-examination. Most importantly, however, Garza had no first-hand knowledge of Rodriguez's formative years. Garza only met Olivia in 2004, when Rodriguez was twenty-four. Garza's affidavit focuses on Rosendo's disrespectful, controlling treatment of Lupe and Olivia, his abuse of pain medication, and his subsequent financial troubles. The affidavit does not even state whether these events occurred before or after Rodriguez's arrest, which was a known stressor for Rosendo. Garza's affidavit mentions Rodriguez only once, stating that Rodriguez learned from his father to treat his mother and women in general with disrespect. (3 SHCR 757.) But Garza's opinion in this regard is refuted by Rodriguez's testifying witnesses: Lupe had no knowledge of her son ever being physically, sexually, or verbally abusive with any woman or girl. (2 SHRR 65, 72-73.) Olivia described her brother as kind, thoughtful, respectful, and solicitous to her and Sofia and the women in the family, and respectful to the girls he dated and the women in their father's office. (2 SHRR 209-210, 235.) Ana testified that she had never seen her nephew be violent or disrespectful to any girl or woman. (4 SHRR 95.) Given that Garza did not know Rodriguez during his formative years and gave information that contradicted helpful testimony from his mother, sister, and aunt, the state court's alleged failure to consider his affidavit does not undermine the reasonableness of its ruling.
In sum, Rodriguez fails to present clear and convincing evidence to rebut the state court credibility findings regarding Lupe, Olivia, Salazar, Chaffin, Franklin, and Garza. On the contrary, the record aptly demonstrates that the credibility decisions were not unreasonable and supports the state court's conclusion that Rodriguez's "family members did as much to damage or cast doubt upon other family members' testimony, and on non-family-member witnesses' testimony, as they did to confirm, verify, support, or add weight to the other witnesses' testimony." (5 SHCR 1490-91.)
V. Trial counsel's mitigation investigation and strategy
Rodriguez contends that trial counsel's investigation was deficient because counsel failed to collect Rosendo's medical records, failed to sufficiently prepare the witnesses, failed to find witnesses to corroborate the abuse, and failed to connect the impact of Rosendo's violent and abusive behavior to Rodriguez's criminal conduct. (Pet.31, 35, 107-109, 119.) Theexpanseof trial counsel's mitigation effort can be gleaned from the trial court clerk's record, emails between the trial team, and the habeas testimony of Wardoup, Stangl, and their mitigation specialist Rob Cowie, all summarized very briefly below.
The clerk's record shows that Wardroup and Stangl together billed 532.6 hours of out-of-court time in this case. (1 CR 230, 314, 318, 341; 2 CR 80, 89, 110, 195, 210.) Cowie was appointed as a mitigation investigator nine days after Wardroup was appointed. (1 CR 42, 44.) A separate investigator, Todd Kurlander, was the fact investigator. (1 CR 41.) Emails show that the defense contacted neuropsychologist Daneen Milam and psychiatrist Susan Stone. (7 SHRR 61, 92.) They retained forensic pathologist, Dr. Norton. (7 SHRR 91.)
Emails sent between the defense team members show that, one year before trial, Cowie knew specific details of the "long-term, physical abuse of Lupe." (7 SHRR 86.) In his lengthy testimony at the state habeas hearing, Cowie described his experience conducting mitigation investigations in federal cases and the fact that he is also an attorney. Cowie testified that Rosendo was initially friendly and open, if not very forthcoming with details of his abuse. Cowie had a two-and-a-half hour conversation with Lupe alone and found her friendly and open. He described Sofia as strong-willed and more open to discussing the abuse, while Olivia was "fairly open." He interviewed Gene Douglass and had brief contact with Dr. Ana Rodriguez. He did not talk to Palacios or her daughter, Salazar. He spoke with Garza and Anderson, but neither of them wanted to be involved in the case. Cowie interviewed Lupe's family. Cowie spoke to two prison classification experts and tried unsuccessfully to locate Franklin. Overall, Cowie directed the use of his resources towards stories and people within the Rodriguez home. He believed the nuclear family kept some details to themselves that they revealed only later in their habeas testimony. Rodriguez himself was not open about the abuse and provided very little information. (5 SHRR 59-247; 6 SHRR 6-132.)
Cowie's thirty-seven-page "working" mitigation report sheds additional light on his efforts. (7 SHRR 48-97.) It shows that Cowie spoke to Rodriguez's preschool teacher, four college acquaintances, a high school coach, Barbara and Bobby Perkins, Gesenia Abad's mother, Thelia Chaffin, two detention officers at the jail, the jail librarian, and a contact at the Naval Academy. At least three women who knew Rodriguez in college refused to speak to Cowie. Cowie's report separately addresses Rodriguez's educational history, the medical and mental health history of Rodriguez and his family, his work history, romantic relationships, legal history (including jail behavior), and his social history; it includes Cowie's general thoughts and theories for the case and "to do" lists that Cowie constantly updated. (5 SHRR 112.) The report addresses the family history of depression, Rosendo's bipolar disorder and depression, Rosendo's tyrannical behavior, and Rosendo's alcohol and pain-medication abuse, including illegally purchasing Vicodan. The report discusses the cultural issues of their "traditionally Hispanic family," which relegated women to a lesser role in the extreme.
Wardroup also testified. He had nearly thirty years of capital trial, appellate, and habeas experience in state and federal court when he was appointed to represent Rodriguez. Wardroup said Rosendo wanted his legal views known, and he spent time building a rapport with Rosendo because Rosendo had been dissatisfied with the previous attorneys. Wardroup knew Rosendo attempted to control their access to Lupe and Olivia, but Wardroup denied allowing Rosendo to dictate their investigation. Wardoup said his trial strategy was to focus the jury on what Rosendo did at home, not at the office, and he intentionally did not present evidence that did not directly involve Rodriguez. Wardroup asserted that much of what the habeas witnesses testified to, including child abuse, could have been presented if he had known about it, but neither the witnesses nor his client told him about it. Wardroup believed the defense team did a competent job trying to meet the aspirational bar guidelines for mitigation investigations. While other witnesses could have provided more information that Rosendo had a temper and controlling nature and was an alcoholic, he said the jury heard this information on a limited basis. Wardoup would have liked to have put on the evidence he heard in the hearing and admitted there is a chance he did not ask every question he could have asked of a witness. He maintained that this was probably true in every case he tried. (6 SHRR 135-288.)
A. Counsel's collection of medical records
Rodriguez first challenges counsel's investigation for failing to collect Rosendo's medical records. Although Cowie asked for and received releases for Rosendo's medical records, he did not collect them. (6 SHRR28-30.) The state court noted that while Rodriguez included selected excerpts of the medical records with his habeas application, it was the State, not Rodriguez, who offered the records at the habeas hearing. (5 SHCR 1469; 6 SHRR 290-91.) Because the medical records as submitted by the State contained generally unhelpful information for the defense, and because Rodriguez himself had no significant evidence of mental health issues, illness, or disorder (despite having funding for such), the state court found that Rodriguez was not prejudiced by the medical records' absence. (5 SHCR 1495.)
Rodriguez now argues that these records, which his habeas counsel did not deem worthy of offering in support of his habeas application, should have been offered by trial counsel because they would have presented a full picture of Rosendo's mental illness and substance abuse history, demonstrating just how Rodriguez "was impacted by his father's abuse." (Pet. 31.) As observed by the state court, however, the records do not show Rodriguez was impacted by his father's abuse. The records focus on Rosendo's health, not Rodriguez's. While a parent's mental health history may be relevant to a defendant's mental status when mental illness is a disputed theory at trial, that was not the chosen strategy in this case and there is otherwise no support for it. Wardroup knew Rosendo was diagnosed with bipolar disorder in 2007 but had no evidence that Rosendo's prior bad behavior had been driven by anything other than alcohol abuse. (6 SHRR 186.) Furthermore, the medical records were created between 2002 and 2011, when Rodriguez was an adult between the ages of 22 and 31. (2 SHRR 7; 8 SHRR; 9 SHRR.) They depict Rosendo's physical and mental health well after his active alcoholic phase; some even post-date the 2008 trial and would have been unavailable to trial counsel.
Therapy notes from 2007 in the medical records contain the damaging fact that Rodriguez was charged with the murder of two women at two separate times, which the jury never knew about. (9 SHRR 403.) Notes from 2008 indicate Rosendo had four siblings with "no psychiatric illnesses," "has good emotional support by wife of 37 years," and has a history of physically abusing his wife by "slapping her a couple of times," all of which tend to downplay the themes of family mental illness and domestic abuse. (9 SHRR 11, 192.) The records also demonstrate Rosendo's belief that his son had a "promiscuity problem" from an early age. (9 SHCR 354.)
Rodriguez's contention that his father's mental health and physical ailments had significant mitigating value is not well-taken. The state court could reasonably conclude the records were of questionable relevance and contained potentially harmful information. The state court could reasonably conclude that the jury would have viewed such a foray into Rosendo's medical history as a blatant attempt to play on their emotions, since these records had no obvious connection to Rodriguez's childhood and upbringing. Rodriguez does not demonstrate that it was unreasonable for the state court to conclude that this claim fails to undermine confidence in the jury's punishment verdict.
B. Counsel's preparation of the witnesses
Rodriguez contends counsel spent an inadequate amount of time preparing witnesses to testify. (Pet. 35.) He suggests that the increased reports of abuse, including child abuse, from the habeas witnesses was due to trial counsel's inability to surmount Rosendo's efforts to control access to Lupe and Olivia. (Pet. 47, 61-62.) Respondent asserts that the state court's ruling was reasonable in this regard because Wardroup and Cowie both testified that the witnesses, including their client, simply did not tell them the full extent of the violent behavior described in the habeas hearing despite opportunities to do so.
The record shows that the trial team knew they had to work around Rosendo to get information from Lupe and Olivia, partly due to Rosendo's controlling personality, partly because his generation of Hispanic culture was patriarchal, and partly because he was a lawyer who wanted his thoughts known. (6 SHRR 179, 182, 233.) Wardroup and Cowie clearly understood the need to "accept every call you can or return the call as fast as you can," build a rapport with the family, conduct multiple, short interviews under comfortable circumstances, and surmount Rosendo's "dominance patterns" (although Cowie ultimately did not think he was successful). (6 SHRR 102-04, 120, 131, 178, 183, 189; 7 SHRR 76.) Cowie emphasized to the family the importance of sharing information. (6 SHRR 64.) Cowie enlisted the assistance of Danalynn Recer, an attorney/mitigation specialist like himself, when Rosendo became hostile about their focus on a negotiated plea. (5 SHRR 63, 189, 193; 6 SHRR 99-100.) Rodriguez's father, who was well versed in criminal law, was simply not forthcoming with details of his abusive behavior. (6 SHRR 69.)
Cowie interviewed Lupe and Olivia independently, away from Rosendo. (5 SHRR 174-75, 223; 6 SHRR 58-59.) He described Sofia as very cooperative and forthcoming, Lupe more limited, and Olivia as cooperative but concerned about whether her father would know what she said. (6 SHRR 64-65.) Cowie said Rodriguez was intelligent and articulate and knew the importance of mitigation information to his defense. Despite being told the importance of such information for mitigation, Rodriguez was also not forthcoming. (6 SHRR 82-84, 282.) The family, including Rodriguez, told Cowie that the family's child discipline was basically normal and more psychological than physical with regard to Rodriguez. (6 SHRR 75.) Cowie's impression was that the nuclear family kept many of the details to themselves. (6 SHRR 55.) He suspected Lupe was withholding details even though she was open and "bubbly"—unlike a person who has been abused. (5 SHRR 176; 6 SHRR 111.)
Wardroup agreed that every family member who testified at the hearing was very supportive at trial and willing to do anything they could to assist. (6 SHRR 284.) Wardroup visited Rosendo and Lupe at their home to see how they interacted and whether Rosendo was controlling her. (6 SHRR 189.) Wardroup had a good working relationship with Rodriguez, who initially denied any "intrafamily" abuse and ultimately said very little about it. (6 SHRR 249-50.) The rest of the family, including Sofia, denied assaultive behavior toward the children, although Rosendo admitted to slapping his daughters once. (6 SHRR 208-09.) Other than the machete story that Sofia volunteered to the jury (37 RR 330), Wardroup never received information about any threats made by Rosendo with a machete or gun. (6 SHRR 181-82.) Olivia said she feared her father, but never related all the information in her habeas affidavit or testimony. (6 SHRR 253.)
As for Olivia, the trial team had doubts about her ability to communicate to a jury and sensed she was overwhelmed, guarded, withdrawn, and taking her father's anxiety medication. (6 SHRR 57-59, 72, 104-05, 237, 239-40.) These doubts were confirmed by the fact that she cried throughout her habeas testimony, found it very difficult to share information about her family life with strangers, and had problems with the law and a suicide attempt after the trial. (2 SHRR 267-68; 4 SHRR 124.) In the end, however, Olivia could not have testified because she did not return to the courthouse after the guilty verdict. (2 SHRR 168.)
This record shows counsel recognized and made reasonable efforts to surmount the family's reluctance to share information about abuse. Counsel is not deficient for failing to discover mitigation evidence that the defendant and his family failed to disclose when asked. See, e.g., Johnson v. Cockrell, 306 F.3d 249, 252-53 (5th Cir. 2002) (noting that the Fifth Circuit has consistently refused to hold attorneys responsible for introducing mitigation evidence that their client and other witnesses fail to disclose). Therefore, Rodriguez's claim of insufficient preparation of the witnesses does not undermine the reasonableness of the state court ruling.
C. Counsel's lack of corroborating witnesses
Rodriguez complains of counsel's failure to corroborate Rosendo's abuse with testimony from non-family members. He asserts that if counsel had done so, the prosecution would not have been able to question the lack of corroboration and the jury would not have been persuaded by the State's argument that other people have had worse childhoods than Rodriguez. (Pet. 118-19.)
Ineffective-assistance claims based on the failure to call witnesses must show that the witnesses' testimony would have been favorable and that the witnesses would have testified at trial. See Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). The non-family members who provided information at the habeas hearing were Chaffin, Franklin, Brittain, Garza, and Anderson. Garza and Anderson did not want to assist the trial team. (6 SHRR 19-22). Moreover, Anderson did not socialize much with the family, did not remain friendly with Rosendo after their partnership split up, and did not know Rodriguez very well. (7 SHRR 140, 145, 150.) And, as discussed earlier, Garza did not meet the family until Rodriguez was twenty-four years old. Thus, Anderson and Garza had little or nothing to offer regarding Rodriguez's upbringing. The same can be said for Franklin and Brittain who only worked for Rosendo for eight months in 2000, when Rodriguez was twenty. (4 SHRR 139.) Furthermore, Cowie could not locate Franklin (6 SHRR 89), and Chaffin did testify at the trial. (5 SHCR 1473, 1476-77.)
To the extent these witnesses could provide information, it was about Rosendo's behavior at work. This information did not support Wardroup's chosen strategy to have the jury focus on things that happened in the family home. (6 SHRR 207.) Wardroup wanted to keep the jury's focus on Rodriguez by generally presenting events that Rodriguez himself witnessed. (6 SHRR 245.)
The same can be said for Salazar and Palacios, distant relatives whom Cowie did not seek to interview. (5 SHRR 209; 6 SHRR 9.) Cowie stated that he did not believe he had the resources to travel to Alice where they lived, and he focused his resources on stories from people who were in the home at the time. (6 SHRR 94.) Both Salazar and her mother, Palacios, visited the Rodriguez family sporadically, on holidays and special occasions. Salazar estimated they visited about ten times. (3 SHRR 90-91, 138-39, 157.) Palacios said her brother's family visited once a year (but not every year) and that she visited them less than seven or eight times. (3 SHRR 129.) Trial counsel could reasonably decide not to expend time and resources tracking down people who did not have regular contact with the family. See Richter, 562 U.S. at 107-08 (holding that an attorney need not pursue an investigation that would be fruitless and counsel is entitled to formulate a reasonable strategy that balances limited resources in accord with effective trial tactics and strategies).
Wardroup chose to present testimony from non-family member Gene Douglass, an attorney and a long-time family friend who is married to a former judge. He met Rosendo in the Air Force and their children were playmates. He knew Rodriguez well as a child and last saw him in 2004. (37 RR 196-201.) Wardroup also called Thelia Chaffin, a paralegal who worked for Rosendo for eighteen years and saw Rodriguez grow up. Their families vacationed together and were "very" close. (37 RR 187- 90.) Counsel presented testimony from Dr. Ana Rodriguez, the family matriarch, who was a counselor educator and senior level administrator at a university and spent weeks every summer with her nieces and nephews on the coast. (37 RR 223, 225.) Abad, the mother of Rodriguez's child, is a psychiatric caseworker at state agency for people with intellectual and developmental disabilities and mental illness, adding significant weight to her good opinion of Rodriguez as a father. (37 RR 362.) Barbara Perkins was a licensed master social worker and certified juvenile probation officer. Her assessment of Rodriguez as respectful and polite and compliant with her house rules on dating carried significant mitigating potential, given that the five rapes he committed were all within dating or social relationships. (37 RR 206.) Pastor Raul Hernandez was a distant cousin to Rodriguez, but also an educator for thirty-three years and a Vietnam veteran. (37 RR 354-56.) These witnesses were apparently chosen for who they were as well as what they could say about the family and Rodriguez in particular. The witnesses presented at the habeas hearing, on the other hand, were apparently selected under a dubious "more is better" philosophy, with no regard for the facts that their testimony (1) focused not on Rodriguez but on his father and (2) conflicted in many significant details.
Wardroup was not ineffective for failing to present testimony from witnesses who refused to be involved, from witnesses who had little knowledge of the nuclear family, or from witnesses who lived far away and had little to contribute to the story of Rodriguez's daily life. See id. (holding that trial counsel were entitled to avoid activities that distract from more important duties, formulate a strategy that was reasonable at the time, and balance limited resources in accord with effective trial tactics and strategies); Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980) (holding that counsel is not required to "pursue every path until it bears fruit or until all conceivable hope withers"). Rodriguez fails to show that the state court's ruling regarding counsel's choice of witnesses was unreasonable.
D. Counsel's strategy to connect childhood abuse to criminal conduct
Rodriguez next contends trial counsel failed to connect his father's violent and abusive behavior to his own criminal conduct and demonstrate in a compelling manner the impact it must have had on him. He asserts the habeas evidence would have conveyed what it was like to live in the Rodriguez household, and how alcohol, violence, and mental illness affected his development. (Pet. 108-09.)
On the whole, however, the habeas evidence does not make the direct connection Rodriguez suggests. While Olivia and Garza surmised that Rosendo taught Rodriguez to "disrespect" women, this does not begin to explain violent rape and murder. Further, Olivia contradicted her testimony in this regard almost immediately after she said it. (2 SHRR 209-10, 235.) Other habeas witnesses described Rodriguez as loving, thoughtful, intelligent, polite, and respectful to everyone. (2 SHRR 65 (Lupe); 3 SHRR 85 (Salazar), 149 (Palacios); 4 SHRR 95 (Ana).) Neither Ana nor Lupe could identify one occasion where Rodriguez was abusive to a girl or woman. (2 SHRR 67; 4 SHRR 95.) Palacios also testified that Rodriguez did not have an alcohol problem. (3 SHRR 161.) Palacios was not even familiar with Rosendo's drinking when Rodriguez was growing up. (3 SHRR 130.) And Ana described her brother as an "outstanding father" who did everything to give his children the best opportunity for a better life, saying, "[H]e loved them more than he loved life itself." (4 SHRR 28.) The habeas testimony does not show that Rosendo's abuse and alcoholism caused Rodriguez to commit rape and murder.
To the extent Rodriguez suggests counsel should have made this argument to the jury, Wardroup did so to a reasonable extent. Wardroup elicited testimony from Lupe that she observed behaviors in her children indicating they had been affected by the abuse she received. (37 RR 352.) Wardroup asked the jury to give effect "to the home that Rosendo Rodriguez grew up in" and consider as mitigation the fact that Rodriguez was said to have always shown respect to all people. (38 RR 30.) Wardroup presented expert testimony that Rodriguez could successfully serve a life sentence because he was intelligent, polite, respectful, had no disciplinary problems in jail, follows orders, and was helpful to the detention officers. (37 RR 162-63, 174-75, 271-72.) Rodriguez argues now that counsel should have presented more evidence of abuse to more strongly correlate his criminal behavior to his upbringing. But this strategy is no more reasonable than the one counsel chose. The presentation of a defendant's troubled background to explain his ingrained disrespect for women and his violent behavior towards them can have the harmful effect of showing the defendant's tendency to commit dangerous acts in the future. See, e.g., Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012), cert. denied, 133 S. Ct. 1244 (2013) (concluding that counsel's decision to not offer evidence of a defendant's troubled, impoverished, and disadvantaged background was reasonable because the evidence could suggest he was a product of his environment and therefore likely to be dangerous in the future). Such a strategy would have likely undermined Wardroup's argument that, despite his childhood, Rodriguez was capable of respecting authority and following orders in prison.
The concern that a jury would view this evidence as more aggravating than mitigating is especially valid here because Rodriguez enjoyed the support of an extended and close family, was well-provided for, received the benefits of great wealth and privilege, and was sent to college with the hope that he would be president one day. And, whatever the mitigating impact of his abusive childhood, it would have been further diminished by the fact that Sofia and Olivia were raised in the same environment, by all accounts received more abuse than their brother, and managed to make different life choices. See Guevara v. Stephens, 577 F. App'x 364, 369 (5th Cir. 2014) (per curiam) (holding that any information about Guevara's difficult life in El Salvador would have been undermined by, among other things, his brother's clean record despite their shared childhood). Lupe, Sofia, Ana, and Salazar all described Rodriguez as the apple of his father's eye or his "pride and joy" while Sofia and Salazar said the girls suffered more abuse. (2 SHRR 81; 3 SHRR 90; 4 SHRR 30; 37 RR 330-33.)
This is not a case where trial counsel overlooked abusive conduct, mental illness, and alcoholism in Rosendo. Wardroup did present evidence that Rosendo was an abusive alcoholic, and he argued those facts in mitigation. Counsel learned this information from people who knew Rodriguez best—Sofia, Lupe, Olivia, Rosendo, and Rodriguez himself, to a limited extent. At the time of trial, these same people would have known all the additional details that were presented at the habeas hearing, and yet they chose not to divulge them until after the death sentence was imposed. As noted, counsel is not responsible for introducing mitigation evidence that the client and other witnesses fail to disclose. See Johnson, 306 F.3d at 252-53. At its core, this claim comes down to matters of degree: Did counsel talk to enough witnesses about abuse? Did counsel interview the family members enough times under the ideal circumstances? Did counsel extract enough details of the defendant's upbringing? Such matters of degree risk incorporating the "distorting effects of hindsight" and are accordingly "less susceptible to judicial second-guessing." See Skinner v. Quarterman, 576 F.3d 214, 220 (5th Cir. 2009) (quoting Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)). Rodriguez has not demonstrated it was unreasonable for the CCA to conclude that he did not overcome the strong presumption of counsel's competence.
VI. No Strickland Prejudice
Rodriguez makes a global challenge to the state court's prejudice determination under Strickland. (Pet. 116-24.) In its answer, Respondent argues that the aggravating evidence is overwhelming, that the jury heard some evidence of Rodriguez's abusive childhood, and that the additional evidence offered at the habeas hearing was not compelling enough to undermine confidence in the sentencing verdict.
The state court described habeas counsel's effort as a nonsensical attempt to establish that Rosendo's high expectations and strict oversight of a son with such promise was somehow mitigating, despite Rodriguez having had a privileged upbringing, being blessed with involved parents, doting sisters, aunts, and cousins, being supported by ample monetary and other resources, and having all manner of personal and familial support. (5 SHCR 1495.) The state court reasoned that such information is "not the sort of thing that reasonable jurors would weigh on the mitigation side of the ledger." (5 SHCR 1496.) The court concluded that Rosendo's mental health issues did not suggest mitigation because, despite having funding for a psychologist, there was no substantial evidence that Rodriguez suffered from any mental disorder. The court likewise found no evidence that Rodriguez was an alcoholic or had been disrespectful or violent with women (other than his victims) such that these attributes of his father would be seen as mitigating. When balanced against Rodriguez's well-established history of predatory sexual abuse of women, his callous murder of Baldwin and the calculated manner in which he disposed of her body, along with his connection to the disappearance of Rogers, the state court concluded that the habeas evidence did not establish a reasonable probability of prejudice. (5 SHCR 1496-97.)
As previously addressed, there is no evidence in the record that Rodriguez has a mental disorder, had a problem with alcohol, or (excluding his crimes) was anything but respectful to women and people in general. The fact that his father exhibited contrary traits is of limited mitigating value because Rodriguez did not manifest those traits. In fact, Olivia's testimony implies that their father's behavior had the opposite effect on Rodriguez because he eventually learned to stand up to his father and to treat women with great respect. (2 SHRR 209-10, 223-24, 248.) As noted previously, the mitigating impact of abuse evidence is further reduced by the fact that Rosendo was the apple of his father's eye and was treated better than his siblings, neither of whom had committed murder. See Guevara, 577 F. App'x at 369. Childhood abuse evidence also has limited mitigating value where, as here, the defendant does not take responsibility for his criminal behavior. In other words, a theory that the defendant's father modeled behavior that was disrespectful and abusive to women would have little impact where the defendant maintains that he had consensual sexual relations with a woman and killed her by accident.
Furthermore, the testimony among the habeas witnesses is rife with conflict that the prosecution was able to exploit. As noted, Ana described Rosendo as "an outstanding father," who was "always caring and protective" of his wife and had beautiful things to say about her. (4 SHRR 28.) She found the suggestion that her brother was a drug dealer "abominable," and the suggestion that he was in the Mexican Mafia "ridiculous." She disagreed that he treated women as second-class citizens. (4 SHRR 104-05.) Ana and her sister, Palacios, both testified that domestic violence towards women was not part of the family history. (3 SHRR 160; 4 SHRR 94-95.) In fact, all four of Rosendo's sisters were valedictorians in high school because, according to Palacios, their father believed "education was the great equalizer," and he did not want his children to suffer like he did. (3 SHRR 160; 4 SHRR 87.) Among Rosendo's sisters were Ana, the retired university professor with a doctorate degree in guidance counseling education and a UT Fellow for Academic Affairs (4 SHRR 14); Maria Elaina, a registered nurse with a master's degree in counseling (4 SHRR 85); Palacios, a retired assistant school superintendent with two master's degrees (3 SHRR 128-29); and Dolores, a former police officer and retired federal probation officer with a degree in criminal justice (4 SHRR 87). This legacy is at odds with the assertions in Rosendo's affidavit that "[t]here is a long history of disrespect and abuse toward women in my family" by his father and grandfather, that his father "delighted in making [his] mother feel inferior" and "did not care about his wife and children's feelings." (1 SHCR 241 ¶ 5, 242 ¶ 9-11.)
Ana and Palacios also said that their nieces and nephews never cried out or asked for help, contrary to Olivia's testimony that she did so. (2 RR 241-42; 3 RR 141, 102-03.) Any reasonable jury could conclude from the array of education, law enforcement, and health workers in Rodriguez's life that the significant abuse described by Lupe, Olivia, and, to some degree, Salazar, would have been noticed if it were in fact true. Olivia even offered that her Aunt Dolores (the former police officer and probation officer) had lived with them for a period of time and witnessed the abuse, yet Dolores was noticeably absent from the hearing. (2 SHRR 240.)
Rodriguez also asserts he was prejudiced because, if the jury had received the habeas evidence, the prosecution would not have been able to question the lack of corroboration from sources outside the family and the jury would not have been persuaded by the State's argument that other people have had worse childhoods than Rodriguez. (Pet. 118-19.) The Court observes that the abuser, Rosendo, admitted his abuse before the jury. (37 RR 321.) Although Rosendo only admitted to a few instances of abuse, his wife and daughter clarified that the abuse happened "many times," and Rosendo simply did not remember it because he was so intoxicated. (37 RR 329, 335-36, 351-52.) Under these circumstances, the need for corroboration outside the family is reduced. Although the habeas hearing included detailed instances of abuse from the family members, it conflicted in damaging ways, as discussed, and the non-family witnesses such as Garza, Anderson, Franklin, Brittain, and Chaffin, had little knowledge, if any, of life within the nuclear family.
The record also does not support the argument that the habeas evidence would have prevented the jury from accepting the State's argument that other people have had worse childhoods. The habeas testimony contains many examples of Rodriguez's privileged upbringing, including travel and educational opportunities that many jurors probably would not see in their lifetime. According to Lupe, Rosendo loved her and adored the children and was a completely different person when he was not drinking. She said there were "a lot [of] real good times" and spontaneously described a trip to Las Vegas. (2 SHRR 36, 133-34.) They took vacations at least once a year and sent Olivia to Europe for her high school graduation. (2 SHRR 125.) They attended both inaugurations for President Bill Clinton. (2 SHRR 125.) Even Olivia testified her father was not bad all the time, and he "absolutely" could be loving and caring. She and her mother described living in a house with five bedrooms, a basketball court, a pool, and a huge yard with twenty-two pecan trees. Her parents owned a second home and each child had their own car. (2 SHRR 93, 205, 226, 250, 257; 3 SHRR 143.) Although Rosendo kept guns all over the house, he showed his family how to protect themselves with the guns, which belies the suggestion that Rosendo used guns to perpetuate abuse and violence. (2 SHRR129.) Chaffin testified that Rosendo was a generous and complimentary boss and gave her credit for her work. (3 SHRR 49.) Both Lupe and Ana also testified that Rosendo was surprisingly very supportive of Olivia when she became pregnant in college. (2 SHRR 108-09; 4 SHRR 66). Salazar had fond memories of her Uncle Rosendo; she had a close relationship with him and said he was very loving, kind, and protective. (3 SHRR 85-86.) She was envious of her cousins who "never went without." (3 SHRR 86.) Rosendo's medical records suggest that his decision to stop drinking "cold turkey" was motivated by his love for his wife. (9 SHRR 191.) Rodriguez was popular in high school, attended college, and joined a fraternity. His parents would visit him once or twice a month and bring groceries for Rodriguez and his college friends. (4 SHRR 83.)
This record certainly does not refute the argument that other people have had worse childhoods. Moreover, the aggravating evidence in this case is overwhelming. Acting alone, Rodriguez carefully planned Baldwin's murder to avoid detection. He rented the truck he used, checked into a hotel under a different name, and disposed of Baldwin's clothes and identifying information separate from her body. The facts of the crime are especially heinous: (1) he sexually assaulted Baldwin with such violence that she would not have been able to walk, and sometime during the assault he strangled and beat her; (2) he then calmly purchased a suitcase and gloves, cleaned up the room, and dumped her in a trash can; (3) showing an utter lack of conscience, he watched a movie, ate a meal, and slept in the same room; and (4) he snapped a smiling picture of himself upon leaving town and began an apparent search for more victims when he arrived home. But for the fact that a landfill worker happened to see the suitcase pop open, Baldwin's murder would likely have gone unsolved, as did Rogers' disappearance before her. In addition to this, the punishment testimony showed that Rodriguez was a serial rapist beginning from the age of sixteen. The rapes were all committed in the course of a dating or otherwise trusting social relationship, and Rodriguez had convinced all but one of his victims not to report what had happened.
In sum, the details of abuse and the family history conflicted in many ways, while other evidence emphasized that Rodriguez had a privileged life and every opportunity to make better choices. The new mitigating evidence would barely have altered the "sentencing profile" presented to the jury and may have even been harmful. See Strickland, 466 U.S. at 700. Rodriguez fails to demonstrate that it was unreasonable for the CCA to conclude that he had failed to undermine confidence in the jury's sentence of death. See Pinholster, 563 U.S. at 190.
VII. Additional arguments regarding state court's credibility decisions
Rodriguez contends the state court did not fully adjudicate this claim because it "effectively saw no mitigation value in anything" he offered in state habeas proceedings and did not make a finding under the first prong of Strickland. (Pet. 124-25.) The record does not support this assessment. The state court found that various witnesses presented by Rodriguez were not credible "because of a seeming willingness to be led to say whatever Applicant's habeas team sought to obtain from them" and alter their stories to "fit the needs of the moment." (5 SHCR 1489.) Nevertheless, the state court found that Ana and Palacios were "credible in most respects" (5 SHCR 1491), and the state court found that certain specific incidents of violence did occur, but that not all reports of each event were credible. (5 SHCR 1486-89.) Contrary to Rodriguez's suggestion, therefore, the state court did not discount all of his evidence. The fact of the matter is, Rodriguez presented testimony from his aunts which failed to support the picture that the habeas team tried to paint regarding Rosendo's behavior and a paternal legacy of violence and abuse.
Further, the state court made a deficiency determination under Strickland as follows:
The Court finds that trial counsel reasonably chose from the best witnesses available at that time to try to present a complete picture of Applicant's life, upbringing, home life, and environmental factors throughout his life. Trial counsel were not deficient for failing to present unstable, uncertain, questionable witnesses who could not be depended upon to withstand the ordeal of testifying and to stick with the evidence without volunteering information, contradicting other witnesses, contradicting their own prior statements, and from volunteering potentially detrimental matters far beyond the question posed. But, even if trial counsel might have been judged to be more reasonable by putting on all witnesses regardless of other considerations, i.e., just to put it all on and hope for the best with several of those witnesses, it was not an unreasonable trial strategy to put the best witnesses forward and to focus on events Applicant experienced firsthand, rather than matters that happened in Applicant's father's law practice, which nothing shows Applicant was even aware of.(5 SHCR 1497) (emphasis added.) Before making the above conclusions and recommending that relief be denied, the convicting court identified this claim as one of insufficient "investigation" as well as the insufficient "presentation" of evidence. (5 SHCR 1469.) While the written ruling is not a model of clarity, as discussed in further detail below, this Court's function is to determine the reasonableness of the ruling, not grade the state court's papers. Santellan, 271 F.3d at 193. The Court rejects the argument that the state court did not make a ruling under Strickland's first prong.
In his Reply, Rodriguez presents additional attempts to avoid the unfavorable credibility determinations made by the state trial judge. He complains the state court's decision is both contrary to and an unreasonable application of clearly established law in Porter v. McCollum, 558 U.S. 30 (2009), and Wiggins v. Smith, 539 U.S. 510 (2003), because
1. In holding that trial counsel "reasonably discontinued the mitigation investigation," the state court completely discounted the mitigation value of the habeas evidence and failed to consider whether the known evidence of "Rodriguez's horrific upbringing" would have led a reasonable attorney to investigate further. (Reply 3-5.)
2. In finding no prejudice, the state court failed to consider the "totality of the evidence" because it did not consider or unreasonably discounted the habeas evidence and did not weigh the habeas evidence against what the jury heard. (Reply 6-7.)
3. In finding no prejudice, the state court unreasonably screened mitigation evidence from its analysis in violation of Tennard v. Dretke, 542 U.S. 274 (2004). (Reply 7-9.)
At the outset, the record does not support the declaration that Wardroup overlooked evidence of Rodriguez's "horrific upbringing." Assuming all of the habeas evidence is true, it included incidents of abuse similar in character to what the jury heard at trial, involving battery, verbal abuse, and controlling or demeaning behavior directed toward Lupe. The evidence also included incidents against the children, including (1) disciplining the children by lining them up against the wall and yelling, pointing, slapping, and humiliating them; (2) hitting Rodriguez with his hand and a belt from age two to age eighteen (per Lupe) or from age three to age sixteen (per Olivia); and (3) leaving bruises on Olivia's buttocks and legs that her mother ignored. But the habeas witnesses also agreed that Rosendo loved his wife and children, that Rodriguez was the apple of his father's eye, and that the family enjoyed good times, great wealth, educational opportunities, and travel. This upbringing, while not ideal, can hardly be deemed "horrific." Cf. Wiggins, 539 U.S. at 535 (reciting "powerful" overlooked mitigation evidence of (1) severe privation and abuse while in the care of an alcoholic, absentee mother; (2) physical torment, sexual molestation, and repeated rape while in foster care; (3) periods of homelessness and hunger; and (4) diminished mental capacities).
The record also does not support the assertion that the state court failed to consider the totality of the evidence. In making its findings and conclusions, the trial court judge relied upon documents filed with the clerk, the reporter's record of the trial and the motion for new trial proceedings, and "all habeas-related testimony (whether made by live testimony in court or by deposition), affidavit testimony, [and] other non-testimonial and documentary evidence." (5 SHCR 1417.) The state court discussed the habeas evidence in detail, comparing it to other evidence in the record. (5 SHCR 1469-94.) The state court then held that there was no Strickland prejudice. In doing so, the court balanced the questionable hearing evidence against Rodriguez's "well-established history of predatory sexual abuse of women," his calculated and callous murder of Baldwin, and his association with the disappearance of Joanna Rogers. (5 SHCR 1495-96.) The state court next concluded, as discussed above, that counsel was not deficient. (5 SHCR 1497.) The CCA denied relief based upon theses findings and conclusions, as well as its own review of the case.
This case is not like Porter, in which the Supreme Court held that the state court's determination of "no prejudice" was unreasonable because the jury heard almost nothing in the way of mitigation and the state habeas court "either did not consider or unreasonably discounted the mitigation evidence." Id. at 41-42. Porter's mitigation evidence consisted of mental health issues, combat service in Korea, and childhood abuse. Unlike this case, the discussion in Porter did not involve determinations of non-credibility by the state court. The state court in that case apparently found the habeas testimony from Porter's brother, sister, neuropsychologist, and military commander to be true but held it was nevertheless "lacking in weight because of the specific facts presented." Id. at 37. The state court in this case, on the other hand, found some of the habeas testimony not credible. Such credibility determinations are upheld unless the petitioner shows they are unreasonable or the factual premise was incorrect by clear and convincing evidence. Miller-El, 537 U.S. at 340. As discussed above, Rodriguez has not shown that the credibility assessments are unreasonable. And Rodriguez presents no clearly established Supreme Court law requiring a state court to consider evidence it deems non-credible. The fact that some of Rodriguez's hearing testimony was rejected as non-credible does not mean the state court conducted an improper analysis under Strickland. If this were true, all habeas evidence would be taken at face value and there would be no need for an evidentiary hearing.
To the extent Rodriguez may be complaining that the state court addressed the prejudice prong of Strickland before it addressed deficiency, or did not articulate verbatim the Strickland and Wiggins standards for reviewing an investigation or weighing the totality of the evidence, this Court reviews only the state court's ultimate legal determination, not every link in its reasoning. Charles v. Stephens, 736 F.3d 380, 387-88 (5th Cir. 2013). Further, federal courts on habeas review are "determining the reasonableness of the state court's 'decision,'. . . not grading their papers." Santellan, 271 F.3d at 193. There is no requirement that the state court write an opinion, cite to Supreme Court cases, or even be aware of Supreme Court cases. Richter, 562 U.S. at 98. Moreover, Strickland does not establish mechanical rules. Although the opinion in Strickland discusses counsel's performance prior to discussing prejudice, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order." Strickland, 466 U.S. at 697. The alleged shortcomings in the state court's written analysis therefore do not undermine the reasonableness of its ultimate decision.
Finally, Rodriguez argues that the state court improperly "screened" his mitigation evidence in violation of Tennard, 542 U.S. at 274. Tennard does not purport to establish standards for Strickland claims, however. It addresses the Eighth Amendment requirement that juries receive instructions that allow them to consider and give effect to constitutionally relevant mitigating evidence. Tennard held that low-IQ evidence is inherently mitigating and constitutionally relevant, irrespective of whether the defendant establishes a nexus between his low IQ and the crime. Tennard, 542 U.S. at 287. Rodriguez attempts to conflate the state court's credibility determination in this case with the nexus requirement rejected in Tennard, but the state court here applied no nexus test, nor does this case involve any evidence of mental impairment. Rodriguez's argument does not rely on clearly established federal law but, rather, seeks to expand federal law. The Court denies Claim 1.
CLAIMS 2-5: THE COUNSELED POLICE STATEMENT
The next four claims relate to Rodriguez's counseled, recorded statement in which he told the Lubbock police that he killed Baldwin in self-defense, a claim later refuted by the autopsy report showing Baldwin sustained multiple, severe injuries. Claim 4 asserts Albert rendered ineffective assistance by allowing Rodriguez to talk to the police without first conducting an adequate investigation into whether the autopsy report could support a self-defense theory. Claims 2 and 3 assert that, because Albert was ineffective, Rodriguez's statement was involuntary and not given freely, knowingly, and intelligently, in violation of the Fifth and Sixth Amendments. In Claim 5, he contends (a) Wardroup was ineffective for withdrawing a motion to suppress the confession based on Albert's alleged ineffectiveness, and (b) appellate counsel Wall was ineffective for failing to raise this issue on appeal after partially developing the claim in a hearing on the motion for new trial. Respondent asserts the state court reasonably rejected all of these claims and that the police statement was constitutionally valid.
I. Albert's representation (claim 4)
A. Albert's investigation and strategy
The Court first addresses the contention that Albert's decision to allow Rodriguez to speak with the police was based on an unreasonable and incomplete investigation. As noted previously, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 691. Strickland also recognizes that "counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Id. at 691. More specifically, "when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether." Id. (emphasis added).
In general, counsel is not ineffective for failing to discover evidence that the defendant knows but withholds from counsel. Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997). And, where the accused instructs his attorney to engage in certain conduct, he will not be heard to complain later that his attorney's compliance with that request resulted in ineffective representation. E.g., Schriro v. Landrigan, 550 U.S. 465, 476-477 (2007) (holding that federal habeas court properly determined relief was barred on claim alleging counsel failed to present mitigating evidence where, among other things, defendant's behavior at trial indicated he would not have allowed counsel to present such evidence).
The evidence at the motion for new trial hearing indicates that Rodriguez took two knives from Baldwin in order to assert a self-defense claim to the police in case he was arrested. After his arrest, he insisted Albert get the knives from his father, give them to the police, and arrange the interview. He convinced Albert he was telling the truth about how Baldwin died. Albert had no reason to doubt Rodriguez, whom the record depicts as intelligent, articulate, solicitous, and convincing. Knowing that Albert was acting on the false information he provided, Rodriguez chose to speak to the police.
Rodriguez does not say why the state court ruling is unreasonable but rather re-argues that Albert did not investigate the autopsy report or "other aspects of the police investigation." (Pet. 132.) The record does not support this assertion. Albert's testimony on the new trial motion described his prior law enforcement experience as a homicide detective and an FBI agent. (40 RR 9-10.) Albert availed himself of the district attorney's open file policy and, because of his law enforcement background, conducted his own preliminary investigation "out in the community." (40 RR 15-17, 56.) On their first or second visit, Rodriguez told Albert he had killed Baldwin in self-defense and his father possessed the two pocket knives that Baldwin had attempted to use against him. (40 RR 23.) Rodriguez told Albert he kept the knives to show the police he had acted in self-defense. (40 RR 26.) Albert arranged to have the knives turned over to law enforcement, who tested them and found Baldwin's fingerprint on one of them. (40 RR 24-25.) Albert met the lead detective several times. He interviewed Margie Estrada, a prostitute, who identified the knives in photographs as Baldwin's and confirmed that Rodriguez looked for prostitutes on other occasions. Albert interviewed a tattooed man and another female prostitute, who also confirmed that Rodriguez was known to frequent the area. (40 RR 32-33.) Albert visited the hotel where the murder occurred and confirmed that Rodriguez was the only person in his Marine unit who was staying at that hotel. (40 RR 55.) He spoke with Joanna Rogers's father at some point. (40 RR 38.) He knew the facts supporting Rodriguez's arrest, had the police reports, and saw the video recording of Rodriguez buying the suitcase and loading it into the rented truck. (40 RR 15, 21, 53-54.) Albert did not have the autopsy report because the medical examiner was backlogged, but Albert scheduled an interview with the medical examiner's office. They reset the interview twice, however, and ultimately did not make themselves available. (40 RR 21-23.) Albert also knew Rodriguez had bruise marks and a scratch from the struggle, and Rodriguez had physically described to Albert what happened between him and Baldwin. (40 RR 27, 29, 58.)
Albert was unable to provide some details, like the names of these witnesses, because he had turned his notes over to subsequent counsel and was testifying without his notes. (40 RR 32, 38, 44.)
Albert knew Rodriguez told the police at the time of arrest that he wanted to speak to them with an attorney present. (40 RR 55.) Rodriguez insisted that Albert set up an interview with Detective Breunig. (40 RR 33; 43 RR 14 (DX 1, letter to District Attorney); SX 253, time stamp 1:06:55 to 1:08:30 (explaining that Rodriguez always wanted to speak to the detective and even tried calling him from the jail.) Albert explained he did not delay the interview because Rodriguez could not get out on bail and he insisted it would resolve the matter. (40 RR 42.) Albert believed the State had strong evidence identifying Rodriguez as the perpetrator and, in his experience, self-defense claims are better when they are asserted almost immediately; otherwise they weaken to the point of looking like a ruse. (40 RR 51, 55, 67.) At the time Albert made this decision, there had been no capital murder indictment and no decision by the State on whether to seek a death sentence, and so Albert's strategy also sought to remove the death penalty as an option if Rodriguez cooperated and everything was as Rodriguez stated. (40 RR 40, 59; 43 RR 13 (DX 1, letter to District Attorney.) Albert warned Rodriguez that the police also suspected him of murdering Joanna Rogers, but Rodriguez told him not to worry about that and insisted he was not involved. (40 RR 37, 41.) When challenged about the reasonableness of the self-defense theory, Albert replied, "Let me tell you, Counsel, your client is a very convincing person." Albert believed it could have been ineffective assistance not to provide Rodriguez the chance to assert self-defense. (40 RR 28-29, 35-36, 57.) He said he would not have allowed Rodriguez to give the statement if he had not believed there was a self-defense issue, but he believed what Rodriguez told him and relied upon what Rodriguez said. (40 RR 36, 39, 57.)
This testimony does not show an inadequate investigation. Although Albert did not have the autopsy report, he made reasonable efforts to interview the medical examiner and he had Rodriguez's version of how the murder happened (upon which he was entitled to rely). Albert knew the proof of identification was strong, and he knew the knives that Rodriguez gave him belonged to Baldwin. Albert reasonably believed a self-defense theory weakens the longer the accused waits to assert it, and he acted on his duty not to forfeit any defenses his client might have had. Albert's testimony supports the state court's conclusion that his decision did not fall below an objective standard of reasonableness, considering the circumstances. (5 SHCR 1455-56, ¶¶ 24-25.) It was reasonable for the state court to conclude, as it did, that given the strength of the evidence showing Rodriguez was the perpetrator, there was much to be gained and little to lose from making a statement to the police in which Rodriguez could explain or negate aspects of the crime, in the presence of counsel, in a setting that was more favorable than testifying at trial. (5 SHRR 1453, ¶ 16.)
An analysis of Albert's representation would not be complete without acknowledging that Albert's strategy to remove the death penalty from the table was ultimately successful. In June of 2006—after the autopsy report was issued and the State would have reason to know the self-defense story was questionable—the district attorney entered into a plea bargain agreement with Rodriguez. (35 RR 76; 44 RR 560 (CX 1); 6 SHRR 261.) Under this agreement, Rodriguez could have received a life sentence for Baldwin's murder as well as immunity for his involvement in Rogers's death. (44 RR 560 (CX 1).) On the day of the plea hearing, however, Rodriguez claimed he did not understand anything that was being told to him, and the plea consequently did not go forward. (2 RR 132-40.) But for Rodriguez's own actions, Albert's strategy of cooperation could have led to a life sentence.
In sum, Albert made reasonable investigatory efforts and reasonably relied on information from his client. Rodriguez, on the other hand, withheld the truth, gave counsel knives from the victim that tended to support his self-defense story, and insisted that counsel set up a meeting so he could make a false statement to police. Under the circumstances, Albert's decision to allow Rodriguez to make a timely assertion of self-defense was not unreasonable. See Lackey, 116 F.3d at 152; Landrigan, 550 U.S. at 476-77. Rodriguez fails to show that the state court's ruling in this regard was unreasonable.
The weakness of the self-defense theory advanced by Rodriguez is not disputed. (5 SHRR 17; 6 SHRR 228-29.) Wardroup's pathologist would later describe the self-defense theory as "laughable." (7 SHRR 91.)
B. No prejudice
Alternatively, Rodriguez fails to show that the state court's prejudice determination was unreasonable. There is evidence other than Rodriguez's statement to police that strongly links him to the murder: he rented the hotel room where Baldwin's blood was found, store security cameras recorded him purchasing latex gloves and a suitcase identical to the one in which her body was found and loading it in his rental truck, he conducted internet searches about Baldwin soon after the murder, and he was linked to DNA found on the victim's anal swab and on latex gloves found in a hotel trash can. (5 SHCR 1463, ¶ 54; 34 RR 147, 159.) In addition, the complained-of police statement allowed Rodriguez to argue the following facts to the jury without having to testify: (1) Baldwin used a knife; (2) he acted in self-defense; (3) he was unaware of Baldwin's pregnancy; (4) the sex was consensual; and (5) (in conjunction with the autopsy report) Baldwin used crack cocaine. (5 SHCR 1462-63.)
Rodriguez complains that the state court ignored the fact that the police statement tethered Wardroup to a self-defense theory that the State easily refuted and from which Wardroup had to distance himself. The self-defense theory may have been weak, but its effect on the trial was not prejudicial. The self-defense theory did not conflict with trial counsel's other theories that the sex was consensual, that Rodriguez did not know Baldwin was pregnant, and that, due to Rodriguez's military combat training, he simply overreacted to her brandishing a knife after he took away her cocaine. While Rodriguez asserts Wardroup was forced to distance himself from the self-defense theory in his closing remarks, the remarks actually appear to boost the self-defense theory by pointing out that the State had sponsored the very evidence of the self-defense theory that the prosecutor argued for the jury to reject. (36 RR 13-14, 22-23.)
Rodriguez also complains that the state court overlooked the fact that the prosecution used the confession to argue that he was an untruthful person. But Rodriguez's lack of truthfulness was substantially established by other evidence in the record. Dean Threadgill, Chris Rodriguez, and Laura Davidson showed that Rodriguez lied about owning the new truck he was driving, lied about serving in Iraq, and gave false details relating to Iraqi prostitutes, sleeping with married women, and having to kill a 5-year-old child. (32 RR 151-54, 187-88, 232-33.) The jury heard three of his rape victims testify that he secretly dated other women. (37 RR 20, 29, 32, 62, 82.) The mother of his child admitted that she had described him as a pathological liar. She also caught him chatting with young girls on the Internet and said she left him because he cheated and lied to her. (37 RR 366, 369.) Given the fact that there is other evidence establishing Rodriguez as an untruthful, deceitful person, the fact that he also lied to police does not undermine confidence in the verdict at either stage of trial. See generally Romero v. Lynaugh, 884 F.2d 871, 879 (5th Cir. 1989) (holding that counsel was not ineffective for failing to block evidence that was duplicative of evidence properly received). The Court denies Claim 4.
II. Miranda waivers and voluntariness of confession (claims 2 & 3)
Rodriguez asserts that his confession was involuntary under the Fifth and Sixth Amendments because it was given without the effective assistance of counsel. For the reasons already discussed, Albert did not provide ineffective assistance under the Sixth Amendment.
Moreover, the state court found that Rodriguez was read his Miranda rights, which he acknowledged and voluntarily waived (except for the right to counsel, which he asserted) and that Albert actively participated in the police interview by injecting comments and offering suggestions about what details should be addressed. The court found that Rodriguez spoke freely and openly without hesitation in the interview and expressed that it was always his desire to speak with the detectives. These findings are supported by Albert's testimony, discussed above, and the DVD recording. (SX 253, time stamps 00:01:47 (Miranda warnings) and 1:06:55 to 1:08:30 (acknowledgment that he always wanted to speak with police).)
The state court therefore reasonably concluded that Rodriguez's statement was "made intentionally, knowingly, intelligently, freely, and voluntarily," and that Rodriguez has never expressed otherwise. (5 SHCR 1456-57.) Rodriguez fails to demonstrate that the state court's conclusions are unreasonable under Fifth or Sixth Amendment jurisprudence. See Patterson v. Illinois, 487 U.S. 285, 296 (1988) (holding that waiver of Sixth Amendment rights will be considered knowing and intelligent when a defendant is admonished of his rights according to Miranda and agrees to waive those rights); Moran v. Burbine, 475 U.S. 412, 422-23 (1986) (holding that waiver of Fifth Amendment rights is valid "once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction"). The Court denies Claims 2 and 3.
III. Representation by Wardroup and Walls (claim 5)
Rodriguez contends that Wardroup provided ineffective assistance when he withdrew a pretrial motion (1 CR 400) in which he argued that the police statement should be suppressed because Albert was ineffective. Rodriguez contends that Wardroup withdrew the motion because he mistakenly "bought into" the State's overstatement of the scope of the waiver of the attorney-client privilege that would occur if the motion went forward. Rodriguez also contends appellate counsel Wall was ineffective because, after developing the issue on the motion for new trial, Wall failed to present the claim in his appellate brief.
The claims against Wardroup and Wall are derivative claims based on the allegation that Albert was ineffective with respect to Rodriguez's police statement. Because Albert was not ineffective, the state court concluded that Wardroup and Wall could not be ineffective for failing to pursue allegations of ineffectiveness against him. (5 SHCR 1468, ¶ 67.) Rodriguez fails to show that the state court's conclusion as to Wardroup and Wall is unreasonable. See Smith v. Robbins, 528 U.S. 259, 278 (2000) (holding that an indigent's right to appellate counsel does not include the right to counsel for bringing a frivolous appeal); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (holding that Strickland does not require counsel to make futile motions or objections). The state court also found that because Rodriguez did not offer in camera Albert's investigative notes and client communications—either at trial or in the habeas hearing—the court was unable to determine the scope of the attorney-client waiver. (5 SHCR 1460-61, ¶¶ 40-41.) Without knowing what Wardroup would have had to reveal, the court was unable to conclude that Wardroup's withdrawal of the motion prejudiced his client. (5 SHCR 1461-62, ¶¶ 44-46.) Rodriguez makes no effort to show that this conclusion was unreasonable. (Pet. 139-46.)
Further, the contention that Wardroup was ineffective because he did not understand the limits of the waiver of the attorney-client privilege is unsupported in the record. Rodriguez asserts that an attorney may divulge confidential information only to the extent it is reasonably necessary to address the issues raised by the ineffective assistance claims. (Pet. 142-43 (citing United States v. Ballard, 779 F.2d 287 (5th Cir. 1986), and Laughner v. United States, 373 F.2d 326 (5th Cir. 1967)). Wardroup's testimony indicates that he operated under a similar understanding. Wardroup testified that "just because you claim IAC doesn't mean you're entitled to the whole file," and that he believed he would have had to disclose Albert's investigative notes leading up to the police interview "because that's what [Albert] based his decision" on. (6 SHRR 224.) Wardroup chose not to press the motion because the information he would have had to divulge was something he "sure didn't want the State to have pretrial." (6 SHRR 225.) Rodriguez therefore fails to show that Wardroup interpreted the scope of the waiver more broadly than was reasonably necessary to protect Albert against the allegation.
Even if Wardroup overestimated what he would have had to divulge, he did not think his chances of winning the suppression motion were very good, based on what the recorded statement depicted. (6 SHRR 228, 258-61.) This assessment of the strength of a claim against Albert was obviously accurate. Rodriguez also asserts that Wardroup was "in the dark" about the actual contents of Albert's file, but this conflicts with Wardroup's testimony that he had spoken to Albert about his pre-statement investigation, and while he struggled to obtain Albert's file, he believed he did have it because he otherwise would not have known what Albert had done. (6 SHRR 225-27.) Wardroup's testimony was deemed credible and was accepted by the state court as true. (5 SHCR 1461, ¶ 43.) Finally, Rodriguez asserts that Wardroup did not discuss his decision with Rodriguez, but this assertion is unsupported by any citation to the record. (Pet. 144.)
As for Rodriguez's claims against appellate counsel, Rodriguez must show that Wall unreasonably failed to discover and brief a nonfrivolous issue and that, but for counsel's unreasonable failure, he would have prevailed on his appeal. Robbins, 528 U.S. at 285. Wall testified that the appellate record was not complete enough to raise the claim against Albert on appeal and so he decided to let habeas counsel have the opportunity to develop it further. Wall elaborated that, while he had obtained Albert's testimony on the motion for new trial (discussed above), he had been unable to take issue with it because Wall did not have Albert's file and Rodriguez refused to testify. (5 SHRR 19, 23-25, 42-45.) Wall did not have time to fully develop the claim in the seventy-five days allowed to file, hear, and rule on a motion for new trial. (5 SHRR 24.) Under the circumstances and with an incomplete record, Wall could not present a claim of solid merit. Rodriguez fails to show that effective appellate counsel would have pursued the issue on appeal under these circumstances. Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003) (citing United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999) (holding that counsel need not raise every nonfrivolous ground on appeal but should present solid, meritorious arguments based on directly controlling precedent)). Rodriguez also fails to demonstrate that but for Wall's allegedly unreasonable failure to file the claim, he would have prevailed on his appeal with the record as it existed at the time.
For all these reasons, the state court's rejection of this claim was not unreasonable. The Court denies Claim 5.
CLAIMS 6-7: ALLEGED JUROR MISCONDUCT
In Claim 6, Rodriguez contends that the jury improperly considered facts that were not in evidence, particularly, that Joanna Rogers had been murdered, that Rodriguez had rejected a prior plea bargain with respect to her murder, and that several jurors had friends or relatives who worked as prison guards and there had been a recent prison break. In Claim 7, Rodriguez contends trial counsel Wardroup and direct appeal counsel Wall were ineffective for failing to investigate this claim. Respondent asserts that the state court reasonably rejected Claims 6 and 7 based on its review of statements from eleven jurors.
Rodriguez presented these claims in his state habeas application based on an unsworn statement from Juror Cole, which he signed for "a man and a woman who said that they were law students doing research on Rosendo Rodriguez." (1 SHCR 355, Ex. O; 2 SHCR 530.) The State subsequently interviewed Juror Cole as well as ten other jurors and received conflicting information. (2 SHCR 527, Appx. B.) In a sworn affidavit, Juror Cole explained that the law students presented the written statement for his signature based on what he told them, but that he was not as precise with the statement as he should have been. In his sworn affidavit, Cole states that the jury did not know about the Rogers plea bargain until after the punishment verdict, and the information about prisoner escape was properly gleaned from testimony. (2 SHCR 530.) Substantially similar information was repeated in the sworn affidavits often other jurors. (2 SHCR 528, 532, 534, 536, 538, 540, 542, 545, 547, 549-50.)
While Rodriguez correctly cites the law that he is entitled to twelve impartial jurors, the state court did not unreasonably deny this claim. See Parker v. Gladden, 385 U.S. 363, 366 (1966). The unsworn statement, presented to Cole by law students working for Rodriguez, was refuted by Cole's later, sworn affidavit plus the statements of ten other jurors. The state court also based its ruling on its own recollection and observations at the trial. (5 SHCR 1423.) The trial testimony in fact contains information about two high-profile prisoner escapes. (37 RR 287, 294, 295-96.) The record also shows that Joanna Rogers's father was given the opportunity to provide a victim-impact statement after the punishment verdict and that the prosecutor was allowed to prepare the jury for it before hand, suggesting that this may be when the jurors learned about the earlier plea bargain. (38 RR 41.) Rodriguez does not demonstrate that the state court's decision to discount Cole's unsworn affidavit was unreasonable under the circumstances.
Further, because the allegations of ineffectiveness in Claim 7 are based on the rejected assumption that the jury engaged in misconduct, the Court also finds Claim 7 was not unreasonably denied. Koch, 907 F.2d at 527 (holding that counsel is not required to make futile motions or objections). The Court denies Claims 6 and 7.
CLAIMS 8-9: AUTOPSY PHOTOGRAPHS OF FETUS
Rodriguez argues in Claim 8 that his trial counsel rendered ineffective assistance by failing to lodge a relevance objection to the admission of autopsy photos depicting the victim's unborn child. In Claim 9, he contends appellate counsel rendered ineffective assistance by failing to challenge the trial court's admission of the photos over trial counsel's Rule 403 objection.
I. Background facts
In Texas, the intentional or knowing murder of more than one person during the same criminal transaction is capital murder. See Tex. Penal Code Ann. § 19.03(a)(7) (the "multiple murder" theory of capital murder). In 2003, the Texas legislature amended the Penal Code to include an unborn child in the definition of a person. Tex. Penal Code Ann. §§ 1.07(a)(26), (a)(38), (a)(49) (West 2003). Under case law in effect at the time of trial, the prosecution could establish a capital murder of more than one person by applying the doctrine of transferred intent to evidence showing the defendant intended the death of only one person but caused the death of two. See Norris v. State, 902 S.W.2d 428, 438 (Tex. Crim. App. 1995), overruled by Roberts v. State, 273 S.W.3d 322, 331 (Tex. Crim. App. 2008).
In accordance with Norris, the jury charge permitted the jury to convict Rodriguez of capital murder if they found he intentionally or knowingly caused the death of Baldwin and that her death caused the death of a second individual, namely, her child in utero. (2 CR 547-48.) Several months after Rodriguez was convicted, however, the CCA overruled Norris to the extent it permitted a conviction for multiple-murder capital murder when the evidence showed only one intent to kill. Roberts, 273 S.W.3d at 331. Because Rodriguez did not know Baldwin was pregnant and therefore could not have intended the death of the child in utero, the State acknowledged on appeal that the evidence did not support conviction under the multiple-murder theory. Rodriguez, 2011 WL 1196871, at *5. The CCA held, however, that the evidence was sufficient to support the alternative theory of murder committed during the course of aggravated sexual assault, which was submitted to the jury in a separate charge. (2 CR 523); see Rodriguez, 2011 WL 1196871, at *5. The CCA also held that, assuming the trial court erroneously admitted photographs of the fetus during the punishment phase, it was harmless error. Id. at *8-9.
Rodriguez raised these claims in his habeas petition, arguing that Wardroup was ineffective for failing to make the proper objection to the fetus photographs, and that appellate counsel was ineffective for failing to challenge on appeal the ruling on the objection that Wardroup did make.
II. Claim 8 analysis
Rodriguez asserts that the fetus autopsy photographs, admitted during the guilt phase to show the cause of the fetus's death in the multiple murder, "turned out to be wholly irrelevant" and should have been excluded. He concludes Wardroup was ineffective for failing to lodge a relevance objection to the photographs because it forfeited a viable claim on appeal.
The state court rejected this claim on habeas review because the photographs were relevant at the time they were admitted, and the trial court would not have abused its discretion in overruling a relevance objection. (5 SHCR 1434-35.) Rodriguez fails to show that this ruling is an unreasonable application of clearly established federal law. Trial counsel's representation is judged in light of the circumstances that existed at the time of trial and not in light of subsequent changes in law. See Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993) (reaffirming Strickland's rule of "contemporary assessment of counsel's conduct" rather than in hindsight). At the time of trial, the law did not require exclusion of the photographs based on a relevance objection in cases like this one, where the fetus is the alleged victim. Cf. Erazo v. State, 144 S.W.3d 487, 493-94 (Tex. Crim. App. 2004) (holding that the admission of fetus autopsy photograph in trial for the murder of the mother was error, but distinguishing cases where the photo is relevant because the fetus is the alleged victim). The record supports the state court's ruling that the photographs were relevant to show how and when the fetus died. (35 RR 9-12, 43-46, 72-73). The state court was therefore not unreasonable in its conclusion that trial counsel was not ineffective for failing to lodge what would have been a futile objection. See Johnson, 306 F.3d at 255 (holding counsel is not required to make futile motions or objections and citing Koch, 907 F.2d at 527). The Court denies Claim 8.
III. Claim 9 analysis
While Wardroup did not lodge an objection based on irrelevance, Wardroup did object under evidence rule 403 that the probative value of the fetus photographs was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; (34 RR 169.) After several discussions on the record, the trial court ultimately overruled this objection. In Claim 9, Rodriguez argues his appellate counsel Wall was ineffective for failing to challenge the denial of the Rule 403 objection on appeal. The state habeas court denied the claim, finding that Wall reasonably chose more productive complaints on appeal because this claim could have provided only non-constitutional error and was not likely to change the outcome of the appeal. (5 SHCR 1438-40.)
Mr. Wall's testimony at the habeas hearing supports the state court's ruling. As stated earlier, counsel need not raise every nonfrivolous ground on appeal but should present solid, meritorious arguments based on directly controlling precedent. Schaetzle, 343 F.3d at 445. Wall testified that he considered raising the claim but rejected it in favor of what he believed to be stronger claims with constitutional dimension that could be pursued in federal court later on. Wall said he touched on the issue in other claims but did not raise it as a separate claim because he had limited space in his brief and it would be rare for the CCA to find reversible error based on the erroneous admission of evidence when the State had proceeded on two different theories of capital murder. (5 SHRR 28-34, 47.) Wall believed that he had even consulted with state habeas counsel as well as Rodriguez before making his decision and no one thought his "reasoning was out of line." (5 SHRR 34.) Wall's appellate brief shows that he in fact raised related issues via a legal insufficiency claim, a claim of jury charge error, and claims challenging the reliability and fairness of his death sentence. (Appellate Brief, p. 25, 81.) Thus, Wall did not overlook the issue but strategically chose not use limited pages of briefing to raise it in the form of mere evidentiary error.
Rodriguez fails to show that Wall ignored a claim that was clearly stronger than the forty-two he presented in his brief. As such, Rodriguez fails to show that the state court unreasonably rejected his argument that Wall was deficient in his choice of appellate claims. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (holding that indigent defendant has no right to compel appointed counsel to press nonfrivolous points on appeal if counsel, as a matter of professional judgment, decides not to present those points).
The state court also ruled that if Wall were deficient, the alleged deficiency did not cause Strickland prejudice, that is, a reasonable probability of a different outcome on appeal. (5 SHCR 1439-40.) Rule 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by consideration of undue delay, or needless presentation of cumulative evidence.Tex. R. Evid. 403. This rule favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)). To obtain reversal of Rodriguez's conviction based on Rule 403, Wall would have had to meet the onerous burden of first showing that the trial court's ruling was an abuse of discretion or outside the "zone of reasonable disagreement." Id. And even if the appellate court agreed that the photographs were unduly prejudicial and should have been excluded under Rule 403, the appellate court would not reverse the conviction unless the error affected a substantial right. See Tex. R. App. P. 44.2(b). This is because non-constitutional error is disregarded if the court has a fair assurance that the error did not influence the jury or influenced them only slightly. Hayes, 85 S.W.3d at 816.
Here, the prosecution presented legally sufficient evidence supporting the alternative theory that Rodriguez intentionally murdered Baldwin in the course of committing aggravated sexual assault. As the CCA noted on direct appeal, the evidence showed "extensive damage to Baldwin's vagina, cervix, anus, and the surrounding external areas," including injuries consistent with her thighs being forced apart, and major blunt force trauma to her breasts and buttocks. Rodriguez, 2011 WL 1196871, at * 4. Rodriguez rented the hotel room where Baldwin's blood was later found and purchased a suitcase identical to the one she was buried in. (32 RR 300; 33 RR 55-68; 34 RR 134-36, 150-51.) Rodriguez could not be excluded as the contributor to DNA found on the victim's anal swab and on latex gloves found in a hotel trash can. (34 RR 147, 159.) He admitted in his oral statement to police that he had sex with Baldwin and that he took her life, albeit accidentally. Moreover, there is no question the jury knew that Rodriguez did not know about the existence of the ten-week old fetus. (32 RR 222; 35 RR 73.) The State even conceded during argument it had no proof Rodriguez knew of the pregnancy (which was why the State had relied on transferred intent in the multiple-murder theory). (36 RR 10.) The sexual-assault theory was submitted to the jury in an entirely separate jury charge. (2 CR 523.) In short, Rodriguez fails to show that the fetus photographs somehow induced the jury to convict him of murder in the course of aggravated sexual assault when they otherwise would not have or that the State's proof of the sexual-assault theory somehow benefitted from the photographs. The state court could reasonably conclude that Rodriguez failed to show he would not have been convicted of capital murder absent the fetus photographs.
Analysis yields the same conclusion regarding the sentencing phase. As indicated above, Wall presented constitutional claims on appeal that the conviction under the multiple-murder theory infected the sentencing phase so as to render his death sentence impermissibly unreliable and to deny Rodriguez his due process rights. (Appellate Brief, 81). Those claims are addressed separately in Claims 10-12 below. But the CCA's reasoning is helpful to the resolution of this identical claim based on evidentiary, rather than constitutional, error. Specifically, the CCA noted that the State did not argue or attempt to show that Rodriguez would be a future danger based on his treatment of unborn children. The State's punishment case focused instead on extensive evidence about how he preyed on and sexually assaulted young women and manipulated people. The CCA held that the death of the fetus during the murder and sexual assault of Baldwin "added little, if anything to the large amount of negative evidence presented at punishment." Id. at *8-9. The CCA was persuaded, beyond a reasonable doubt, that the punishment verdict would have been the same if the jury had not convicted Rodriguez of killing the unborn child. Id. at 9.
The harmless error standard for the non-constitutional, evidentiary error allegedly overlooked by Wall in this claim is much lower. As noted, such error is disregarded by the CCA if it has a fair assurance the error did not influence the jury or influenced them only slightly. The facts above support the state habeas court's conclusion that Rodriguez failed to show prejudice from Wall's alleged deficiency. To reiterate, the State did not urge a future dangerousness finding based on the death of the fetus and there was extensive negative evidence of Rodriguez's potential for future dangerousness toward young women such that the photographs of the fetus influenced the jury only slightly at sentencing, if at all. Because the photographs were admissible at the time of trial and because they added little to the body of punishment evidence before the jury, Rodriguez fails to show that Wall's alleged deficiency caused prejudice such that the result of the appeal would have been different. More accurately, Rodriguez fails to show that the state court's ruling in this regard was an unreasonable determination under Strickland. Claim 9 is denied.
The prosecutor made one apparent reference to the fetus when he pointed out that Rodriguez was the one who "stole that child's life." (38 RR 38.) This was not argued as a reason for the jury to find Rodriguez a future danger, however, but was a rebuttal to a defense argument suggesting that the jury would be responsible for any death sentence.
CLAIMS 10-12: RELIABILITY OF THE CONVICTION AND SENTENCE
In Claims 10 and 11, Rodriguez contends that his conviction and sentence violate due process, the right to a fair trial, and the Eighth Amendment because the jury considered evidence and convicted him using the transferred-intent provision with the multiple-murder theory that was later held invalid in Roberts. Roberts, 273 S.W.3d at 331. In Claim 12, he asserts Wall rendered ineffective assistance for failing to raise these issues on appeal. The state habeas court rejected these claims on the merits. (5 SHCR 1424-1432.)
These claims invoke both due process and the Eighth Amendment bar against cruel and unusual punishment. The Due Process Clause protects a defendant against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Jackson v. Virginia, 443 U.S. 307, 315 (1979) (citing In re Winship, 397 U.S. 358 (1970)). Under this well known standard, a federal habeas court reviews the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319.
For capital sentencing, the Eighth Amendment requires a state's capital sentencing statute to (1) rationally narrow the class of death-eligible defendants (the "eligibility determination"), and (2) permit the jury to render a reasoned, individualized sentencing determination based on a death- eligible defendant's record, personal characteristics, and the circumstances of his crime (the "selection determination"). Kansas v. Marsh, 548 U.S. 163, 173-74 (2006); Barclay v. Florida, 463 U.S. 939, 958 (1983). In Texas, the eligibility requirement is addressed through aggravating factors that elevate murder to a capital offense, which are enumerated in section 19.03 of the Penal Code. See Adams v. Thaler, 421 F. App'x 322, 325 n.1 (5th Cir. 2011); Estrada v. State, 313 S.W.3d 274, 285 (Tex. Crim. App. 2010) (citing Jurek v. Texas, 428 U.S. 262, 270-71 (1976)). Thus, the eligibility requirement in Texas is satisfied by a guilty verdict upon the elements of the charged capital offense. See id.
The future dangerousness special issue has the effect of further narrowing the class of defendants eligible for the death penalty. See Estrada, 313 S.W.3d at 285 n.11.
The instant claims appear to be based on the assertion that these due process and Eighth Amendment requirements were compromised because, after judgment was entered, the CCA handed down the opinion in Roberts that rendered legally insufficient under Jackson the evidence used to support the multiple-murder conviction. Rodriguez contends that the jury therefore should not have been able to consider the death of the fetus at the guilt phase or at sentencing. He cites to White v. Thaler, 610 F.3d 890, 912 (5th Cir. 2010), to support his assertion that a murder victim's pregnancy is irrelevant and prejudicial at the guilt phase in a trial for murder. But White addressed counsel's representation under the Sixth Amendment for failing to block the admission of the pregnancy evidence; it is not an Eighth Amendment case and it is not a death penalty case. Further, it is factually distinguishable for at least two reasons: Baldwin's pregnancy was relevant at the time of trial because the unborn child was a named victim in the indictment, and Rodriguez was not prejudiced because there was overwhelming evidence of his guilt on the alternative theory of murder committed in the course of sexual assault.
Although Rodriguez cites general holdings of the Supreme Court regarding the "heightened reliability" requirements for capital sentencing, he does not make an argument that the state court's decision under the facts of this case violate particular Supreme Court precedent. (Pet. 174-80.) Respondent asserts that the state court's ruling was not an unreasonable application of federal law because the jury returned two independent verdicts based on two clearly separate charges, and the CCA addressed under Jackson the sufficiency of the evidence to support the theory of murder-sexual assault, as well as the future dangerousness finding, and found the evidence for both to be sufficient. Rodriguez, 2011 WL 1196871, at *3-4, 8. Respondent also argues that evidence of the death of Baldwin's unborn child was admissible at punishment anyway and therefore did not unreliably skew the sentence. Alternatively, Respondent asserts that the evidence of the unborn child's death was harmless under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
The Court agrees with Respondent. There is no uncertainty in this case about the theory upon which the capital murder verdict now rests, as the theories were presented in two entirely separate charges. (2 CR 122, 143.) For reasons already discussed, evidence of Baldwin's pregnancy did not induce conviction under the murder-sexual assault theory, which was supported by legally sufficient evidence of extensive internal damage and injuries consistent with her thighs being forced apart. Rodriguez, 2011 WL 1196871, at *4. Furthermore, evidence of Baldwin's pregnancy was admissible at sentencing even without the underlying conviction for multiple murder. See Tex. Code Crim. Proc. Ann. art. 37.071, §§ 2(b)(1) and (d)(1) (providing that, in answering future dangerousness issue, jury shall consider circumstances of the offense that militate for imposition of the death penalty); see also Payne v. Tennessee, 501 U.S. 808, 825-27 (1991) (holding that Eighth Amendment erects no perse bar to evidence about the victim and the impact of the murder on the victim's family, and that for a jury to properly assess the defendant's moral culpability, the states may allow at sentencing evidence of the specific harm caused by the defendant).
Rodriguez fails to show the state court decision was an unreasonable application of federal law. See Zant v. Stephens, 462 U.S. 862, 885-89 (1983) (holding that conviction and death sentence under similar Georgia death penalty statute need not be vacated even though state court invalidated one of the aggravating circumstances after judgment, because jury separately found additional aggravating circumstance and the evidence supporting the invalidated aggravator was admissible at sentencing); see also Brown v. Sanders, 546 U.S. 212, 220 (2006) (holding that jury's consideration of an invalidated sentencing factor—whether an "eligibility" factor or not—does not render death sentence unconstitutional where sentencing factors enable the jury to give aggravating weight to the same facts and circumstances). Alternatively, if there is error, the evidence of Baldwin's pregnancy added nothing to the State's punishment case, which included the brutal facts of Baldwin's murder, the disappearance of a teenaged girl, and the sexual assault of five women who knew and trusted Rodriguez. Brecht, 507 U.S. at 638 (holding that habeas relief may not be granted for constitutional trial error unless court determines error had substantial and injurious effect or influence in determining the verdict). Because Rodriguez fails to demonstrate that the state court's rulings were unreasonable and fails to demonstrate prejudice, the Court denies Claims 10 and 11.
Finally, Rodriguez acknowledges that appellate counsel Wall did, in fact, raise this issue with respect to sentencing, but contends Wall may have been ineffective for failing to raise any remaining claims on appeal. The state habeas court essentially concluded that, given its analysis of the claims, there was no basis to find deficient performance or prejudice under Strickland. (5 SHCR 1431-32.) Rodriguez fails to explain or demonstrate that the rejection of his ineffective assistance claim against appellate counsel was unreasonable. See Schaetzle, 343 F.3d at 445 (noting counsel need not raise every nonfrivolous ground on appeal but should present solid, meritorious arguments based on directly controlling precedent); see also Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (holding that conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding). The Court denies Claim 12.
CLAIM 13: MEDICAL EXAMINER'S TESTIMONY
Rodriguez contends that he was denied the right to effective assistance of counsel because Wardroup failed to investigate, cross-examine, or otherwise challenge properly the medical examiner's testimony that Baldwin was alive when placed in the suitcase. This issue was raised and rejected in the state habeas court, which heard testimony from Dr. Natarajan, the medical examiner, and from trial attorneys Stangl and Wardroup. (5 SHCR 1442-48.) Rodriguez asserts the ruling was based on an unreasonable determination of facts and an unreasonable application of clearly established federal law.
I. Factual background
To be clear, the record does not show that the medical examiner testified Baldwin was alive when placed in the suitcase. Rather, Dr. Natarajan was not able to say whether Baldwin was dead or alive, but opined that, if she were alive, she would have died very quickly thereafter of positional asphyxiation. (35 RR 67-69). Dr. Natarajan summarized there was no "specific lethal event;" he could only say Baldwin suffered fifty-plus areas of blunt force trauma as well as "an asphyxial event." (35 RR 67-68, 95.) Stangl's cross-examination before the jury confirmed that Natarajan could not say whether she was alive when placed in the suitcase. (35 RR 93.) Stangl then established there were two types of potential asphyxia present: one caused by Baldwin's compromised position in the suitcase and one cause by some sort of neck compression. The doctor could not tell the jury which one occurred. (35 RR 94-95.) Stangl then explored the likelihood that blunt force trauma was the sole cause of death based on injuries to the brain, and he elicited an admission that Dr. Natarajan could not reconstruct the events that led to Baldwin's death. (35 RR 95-99.)
At the habeas hearing, Dr. Natarajan repeated the same opinions he gave at trial. (4 SHRR 178-79, 187-88.) Stangl and Wardroup testified at the hearing that they were surprised by Dr. Natarajan's trial testimony that Baldwin may have been alive when placed in the suitcase. Stangl said Dr. Natarajan never offered such a possibility during their conversations before trial and it was not in the autopsy report. Stangl himself believed that Baldwin was not alive, given the marks on her neck and the length of time she was left alone in the room. (4 SHRR 192-93; 6 SHRR 231-32.) Nevertheless, even if they had known about the opinion before trial, Stangl said he had no reason to believe he could have changed Dr. Natarajan's belief that positional asphyxiation was a possibility. (4 SHRR 199.) Stangl agreed with habeas counsel that he could have explored the possibility that Rodriguez used some kind of chokehold besides the arm bar Rodriguez mentioned in his recorded confession (and for which there were no corroborating injuries). (4 SHRR 200.) Stangl agreed he could have emphasized circumstances that supported the proposition that she was already dead, like the length of time she was left alone, or he could have asked Dr. Natarajan which scenario was more likely. (4 SHRR 201.) But Stangl also agreed there was no purpose in Rodriguez leaving the hotel room to buy the suitcase in the first place if Baldwin had not been dead, and that it was better not to get a definitive answer and move on. (4 SHRR 205-06.) Wardroup testified that he did not believe there was any way to exclude the medical examiner's testimony and that Stangl did "exactly the right thing" by not arguing about whether Baldwin was placed alive in the suitcase because that would have left an indelible imprint on the jury. (6 SHRR 262.)
II. Analysis
Rodriguez complains Stangl failed to explore whether blunt force trauma was equally likely to have caused Baldwin's death. The record shows, however, that Stangl explored the possibility that Baldwin died from blunt force trauma, and Dr. Natarajan refused to speculate under cross-examination as to whether she would have lived or died if the asphyxial event had not occurred. (35 RR 95-97.) Rodriguez also complains Stangl did not explore other possible ways in which a person can die of positional asphyxiation, such as by being strangled, dropped to the floor, and left there for up to an hour. While Stangl admitted he did not do this, his failure to argue with the medical examiner about how Baldwin could have died from positional asphyxiation outside of the suitcase was not an unreasonable strategy. Even if such a tactic could have caused the medical examiner to concede the possibility that she was already dead when placed in the suitcase, the doctor had already testified to this possibility, and the cross-examination would have simply emphasized the horror of Baldwin's last moments of life for no substantial gain.
Rodriguez also complains that his trial counsel failed to explore evidence that Baldwin "was actually dead by the time Mr. Rodriguez showed back up in the room with the suitcase." (Pet. 182.) The apparent implication here is that such cross-examination could have suggested Rodriguez used something less than deadly force because she survived for some amount of time. This sort of cross-examination would have been easily rebutted, however, by pointing out that Rodriguez's purpose in leaving the hotel was to purchase a suitcase to dispose of her body, so he must have been confident she was dead or at least permanently incapacitated.
Finally, Rodriguez complains that trial counsel did not ask whether a layperson could determine whether a person was unconscious or actually dead. This line of questioning suggesting that Rodriguez, a lay person, did not kill Baldwin intentionally could have been easily rebutted with his own police statement in which he admits he received first-aid and CPR training in the military and that he checked Baldwin's breathing and pulse, but found none. This line of questioning would have had a negative impact by emphasizing that Rodriguez did not attempt CPR or even call for help on his cell phone, both of which he admits in the confession. (SX 253, time stamp 00:42:00 - 00:43:45.) Instead, he dressed and went to Walmart to buy a suitcase and gloves.
Rodriguez's allegations that trial counsel should have challenged the testimony that Baldwin "may" have been placed in the suitcase alive would have assured a more detailed discussion and consideration of her last moments of life, raising thoughts in the jurors' minds such as whether she was choked across the front of her neck or whether the blood vessels on the sides of her neck were compressed to cause unconsciousness; whether the lack of evidence of a struggle indicates the vicious sexual assault occurred while she was helplessly unconscious; whether she worried about the fate of her unborn child; whether she died from strangulation during the sexual assault or clung to life immobilized by the internal injuries; and whether she ever regained consciousness while alone in the room or inside the suitcase, only to realize her death, and her child's death, were imminent. While such a strategy could have led some jurors to conclude she was more likely dead when placed inside the suitcase, the timing of her death would have had no logical effect on the verdict, and reasonably effective counsel could have concluded there was nothing to be gained by such a detailed exploration of the victim's last moments of life. See Castillo v. Stephens, ___ F. App'x ___, 2016 WL 491655, at *7 (5th Cir. Feb. 8, 2016) (petition for certiorari filed) (holding that speculating about the effect of tinkering with the cross-examination questions is exactly the sort of hindsight that Strickland warns against).
Rodriguez also fails to show that the state court's ruling as to Strickland prejudice was unreasonable. After extensive post-conviction litigation in state court and funding in this Court for a forensic pathologist, the record does not affirmatively show whether Baldwin was alive or dead when Rodriguez placed her in the suitcase. Rodriguez's own assertions on this point are conflicting; he told the police that she had no pulse when he left the room but he "stoutly argued" to appellate counsel that he did not believe she was dead when he put her in the suitcase. (5 SHRR 49.) And while habeas counsel's examination of Dr. Natarajan explored different ways Baldwin could have received neck injuries that rendered her unconscious or dead, (4 SHRR 182-83), Dr. Natarajan maintained at the hearing that he could not definitively say she was dead when she received the injuries consistent with the positional asphyxia. In other words, he still did not rule out that she was placed in the suitcase alive. (4 SHRR 178.) The habeas testimony fails to show the trial result was affected in any way by counsel's chosen strategy to point out the uncertainty and move on, and Rodriguez fails to show that the state court ruling was unreasonable. The Court denies Claim 13.
The possible revelation of this belief was one reason why appellate counsel did not want Rodriguez to testify at the hearing on the motion for new trial. (5 SHRR 49.)
CLAIMS 14-16: TEXAS' MITIGATION SPECIAL ISSUE
In Claims 14 through 16, Rodriguez asserts that the mitigation special issue submitted to the jury during the punishment phase violates the Constitution because (1) it does not assign a burden of proof to the State, (2) the definition of "mitigating evidence" is too narrow and impermissibly restricts the jury's consideration of his mitigating evidence, and (3) Texas does not permit appellate review of the sufficiency of the evidence supporting the jury's answer to this issue. (Pet. 184-99.) These claims were rejected in the state habeas court and on direct appeal. (5 SHCR 1419-20); Rodriguez, 2011 WL 1196871, at *9, 23-24 (addressing Claims 32-34, 31, 35).
The relevant portions of the jury instructions state:
You are instructed that when you deliberate on the questions posed in the special issues you are to consider all relevant mitigating circumstances, if any, by the evidence presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, background, personal moral culpability, or circumstances of the crime which you believe could make a death sentence inappropriate in this case. . . .(2 CR 561-63, 567 (emphases added).)
* * * * *
In answering Special Issue Number 2 you shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.
* * * * *
Special Issue Number Two
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, do you find that 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?
As indicated above, the jury was instructed that a "mitigating circumstance" includes, but is not limited to, any aspect of the defendant or circumstances of the crime that the jury believed could make a death sentence inappropriate. Rodriguez's complaint that the "mitigating evidence" considered by his jury was limited to evidence that reduces moral blameworthiness is not well-taken. (Pet. 190.) Furthermore, Rodriguez does not demonstrate that the mitigation evidence he introduced—that he grew up in a home with an abusive, alcoholic father but that he was otherwise a respectful, intelligent person who could adjust to serving a life sentence—falls outside of the statutory definition.
In any event, these claims do not attempt to show a violation of clearly established federal law but seek to change the existing law. See Marsh, 548 U.S. at 173 (recognizing that a state death penalty statute may place on the defendant the burden of proving that mitigating circumstances outweigh aggravating circumstances); Schriro v. Summerlin, 542 U.S. 348, 354 (2004) (rejecting argument that Ring v. Arizona, 536 U.S. 584 (2002), reshaped state's capital murder law or modified the elements of the offense); Jones v. United States, 527 U.S. 373, 381 (1999) (holding that Eighth Amendment does not require jurors be instructed as to the consequences of their failure to agree); Tuilaepa v. California, 512 U.S. 967, 979-80 (1993) (recognizing that juries maybe given unbridled discretion in determining whether to impose the death penalty once it is determined that the defendant is eligible to receive it); Blue v. Thaler, 665 F.3d 647, 665-66 (5th Cir. 2011) (rejecting argument that Texas definition of mitigating evidence is unconstitutionally narrow); Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir. 2006) (rejecting argument that Apprendi v. New Jersey, 530 U.S. 466 (2000), required a Texas jury to find an absence of mitigating circumstances); Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005) (holding that no Supreme Court or circuit precedent requires that the mitigation issue be assigned a burden of proof and that circuit precedent rejects the argument that it be subject to appellate review); Woods v. Cockrell, 307 F.3d 353, 359-60 (5th Cir. 2002) (explaining that Texas death penalty statute is not constitutionally obligated to provide appellate review of mitigation special issue because jury may be given unbridled discretion to consider mitigating factors).
Given the existing Supreme Court precedent and the law of this Circuit, Rodriguez fails to show that the state court's ruling on Claims 14, 15 and 16 were unreasonable. § 2254(d). Furthermore, the arguments in Claims 14 and 16 seek to establish new rules requiring a burden of proof and appellate review of the mitigation special issue. Accepting these arguments would violate Teague because such rules did not exist when Rodriguez's conviction became final. See Teague v. Lane, 489 U.S. 288, 310 (1989). For all of these reasons, the Court denies Claims 14 through 16.
CLAIMS 17-21: LIMITATION OF VOIR DIRE EXAMINATION
In claims 17 through 20, Rodriguez contends that the trial court's refusal to permit him to question prospective jurors about their ability to consider mitigating evidence violated his rights to a fair and impartial jury, to due process, to effective assistance of counsel, and to not be subject to cruel and unusual punishment. In Claim 21, he contends trial and appellate counsel provided ineffective assistance by failing to properly object and raise these issues on appeal. These issues were, in fact, raised and rejected on direct appeal and/or on collateral review.
In its opinion on appeal, the CCA acknowledged that the constitutional guarantee of the right to an impartial jury includes a voir dire examination that is adequate to identify unqualified jurors subject to a challenge for cause. Rodriguez, 2011 WL 1196871, at *10 (citing Morgan v. Illinois, 504 U.S. 719, 729 (1992)). In a death penalty case, any juror to whom mitigating factors are irrelevant should be disqualified for cause because such juror has formed an opinion concerning the merits of the case without some basis in the evidence at trial. Morgan, 504 U.S. at 739. Peremptory strikes, on the other hand, are not required by the Constitution. Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (rejecting notion that loss of peremptory challenge constitutes a violation of the constitutional right to an impartial jury and holding that so long as the jury is impartial, the fact that a defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated). It follows that questions which prompt a revelation useful only in the exercise of peremptory challenges are not compelled by the Constitution, so long as the failure to ask the question does not render the trial fundamentally unfair. See Mu'Min v. Virginia, 500 U.S. 415, 424-26 (1991).
Rodriguez argues that he should have been permitted to ask potential jurors two types of questions: (1) whether they could give meaningful consideration to particular types of evidence, specifically, that Rodriguez was raised in a household with an abusive and mentally ill father, that Rodriguez was a good father and husband, and that Rodriguez is capable of living confined for the rest of his life without incident; and (2) whether they would consider mitigation evidence notwithstanding that a person committed capital murder during the course of aggravated sexual assault in which a fetus was also killed. (Pet. 200-01.) The state court rejected the argument that the Constitution requires both types of questions. (5 SHCR 1420-21); Rodriguez, 2011 WL 1196871, at *10-12.
The first type of question attempted to secure a commitment that the juror would give mitigating effect to the evidence the defense intended to introduce in mitigation. The second type of question attempted to secure a commitment that the juror would not resolve the punishment issues on the basis of victim-impact evidence, specifically, the victim's circumstance of being in utero. The proposed questions therefore do not seek to identify unqualified jurors; the questions attempt to identify whether, given the proposed facts, the juror would favor the defense or the prosecution. Rodriguez provides no authority that these types of questions are required by the Constitution, and circuit precedent suggests otherwise. See Soria v. Johnson, 207 F.3d 232, 243-44 (5th Cir. 2000) (rejecting argument that Constitution was violated by trial court's refusal to allow voir dire question, "No matter what the other evidence would show, could you consider [evidence such as youth or voluntary intoxication] as a mitigating factor in setting punishment?").
Citing Morgan, Rodriguez argues that a juror must be excluded if "his or her views on the imposition of a death sentence regardless of the other evidence in the case are such as they would prevent or substantially impair his or her ability to follow the law." (Pet. 209.) But this argument seeks to expand the holding in Morgan. The Supreme Court in Morgan held that any juror who would impose a death sentence automatically upon conviction cannot follow the dictates of the law and may be excluded for cause. Morgan, 504 U.S. at 735. Thus, a defendant on trial for his life must be permitted to ascertain whether prospective jurors who swear they can uphold the law nevertheless harbor such dogmatic beliefs about the death penalty that they would always vote to impose a death sentence. Morgan dictates that voir dire examination must go beyond simple questions of "Will you follow the law that I give you?" and "Do you have any prefixed ideas about this case at all?" Morgan, 504 U.S. at 735 n.9. But it does not suggest courts should permit inquiries into a potential juror's view of specific mitigating circumstances.
Here, the venire was told that the indictment alleges the murder of a woman who was pregnant at the time of her death. (14 RR 10-11.) Although Rodriguez was not permitted to ask whether they would consider mitigation evidence notwithstanding that the defendant committed murder in the course of a sexual assault in which a fetus was killed, he was permitted to ask about the potential juror's ability to consider mitigation when there is a death of more than one person and one of those persons is a child. (15 RR 164.) Rodriguez was also permitted to ask whether the potential jurors would automatically vote for the death penalty in every case where they found somebody guilty of capital murder. (17 RR 7.) The trial court also allowed Rodriguez to ask whether they would consider mitigating circumstances, including the defendant's "background and character." (17 RR 7-8.) Rodriguez does not assert that any seated juror was unable to consider his mitigating evidence or was unable to assess a life sentence, nor does he demonstrate that the voir dire questions rendered the trial fundamentally unfair. He fails to show that the state court's rejection of these claims was unreasonable, and he fails to show actual prejudice. See Brecht, 507 U.S. at 638 (holding that habeas relief may not be granted for constitutional trial error unless court determines error resulted in actual prejudice). The Court overrules Claims 17, 18, 19, and 20.
In Claim 21, Rodriguez makes a global assertion of ineffective assistance against trial and appellate counsel. He acknowledges that trial counsel objected to the voir dire rulings and that appellate counsel challenged the rulings on appeal, but asserts that, if their efforts in preserving error and presenting these claims were insufficient, then Rodriguez is entitled to relief based on the ineffective assistance of counsel. Such conclusory allegations of ineffectiveness do not raise a constitutional issue in a federal habeas proceeding. Miller, 200 F.3d at 282. The Court overrules Claim 21.
CLAIM 22: CAUSE OF BALDWIN'S INJURIES
Rodriguez contends that Wardroup rendered ineffective assistance for failing to argue that Baldwin's blunt-force injuries were caused by a trash compactor rather than Rodriguez. He acknowledges that this claim is unexhausted and subject to a procedural bar. He asserts that the procedural bar does not apply, however, because state habeas counsel was ineffective for failing to litigate this claim in state court. Respondent asserts that the claim has no merit, state habeas counsel was not deficient, and therefore the claim is procedurally barred.
I. The law of exhaustion, procedural bars, and Martinez
When a claim has not been exhausted, and the state court to which the petitioner would be required to present his claim in order to meet the exhaustion requirement would now find the claims procedurally barred, the claim is defaulted for purposes of federal habeas review. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Williams v. Thaler, 602 F.3d 291, 305 (5th Cir. 2010). For "substantial" claims of ineffective assistance against trial counsel only, the ineffective assistance of state habeas counsel may excuse a procedural bar. See Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013); Martinez v. Ryan, 132 S. Ct. 1309, 1320(2012). A claim is "substantial" if it has "some merit." Martinez, 132 S. Ct. at 1318. Finally, if a petitioner can make a showing of ineffective habeas counsel under Trevino, the deference under § 2254 is inapplicable, and a plenary or de novo review is appropriate. Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003); Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000).
II. Related facts
Wardroup retained a pathologist, Dr. Norton, to review Dr. Natarajan's forensic work in this case. Wardroup reported Dr. Norton's findings in an email to the trial team:
[Dr. Norton] says the forensic work done in the case was very good and she doesn't believe that it can reasonably be argued that there wasn't a sexual assault. She said that no woman could walk around with those injuries, regardless of her desire for drugs. She said that the fetus was not viable and didn't amount to any more that [sic] the potential of life and that Summer would not have been showing so the only way for anyone to know that she was pregnant was for her to tell them. She says the offense didn't occur the way he describes in the statement he gave with [Albert] Rodriguez at his side, that the extent of the injuries was way more than would have been necessary to defend himself from "these cute little knives"-she is a knife collector. She says that it is laughable that this is self defense. She also believes that Ro III [Rodriguez] is a psychopath and should never hope to see the light of day. She opposes the death penalty but would want to see that
Ro III didn't have the possibility of parole. She wonders whether there are other victims who haven't been discovered yet. I asked that she write us a letter so that we could show that there was another expert who corroborated the forensic work already done and she said that she was pretty much at the end of the $5000 that Lubbock County had paid so she wouldn't be preparing a long report but would send a letter. It is probably needless to say, we won't be calling her to testify.(7 SHRR 91.)
At trial, Dr. Natarajan explained how to determine the timing of an injury in relation to someone's death based on the type of cells that arrive to the area during the healing process. (34 RR 194-95.) He testified that the majority of Baldwin's injuries were antemortem and a couple were postmortem, caused by her body getting moved and banged around in the dumpster or compactor. (34 RR 196-98.) Baldwin had a broken right forearm and fractured ribs, for example, which Dr. Natarajan determined were post-mortem based on the lack of hemorrhage around them. (34 RR 204, 222.) On cross-examination, Stangl explored Dr. Natarajan's ability to differentiate microscopically between "hemorrhaging" that occurs before death (when the circulatory system is working) and the "extravasation" that occurs after death from crushing the tissue and forcing the blood out. (35 RR 83-84.) Stangl established that discoloration or bruising on the victim's upper back, left buttocks, left shoulder, right wrist, right chest, left arm, scalp, and right temporalis muscle did not contain an inflammatory cell population indicative of the healing process. (35 RR 86-92.)
III. Analysis
This record shows counsel recognized the need for an expert pathologist and relied on his expert's opinion that the medical examiner's work was high quality. Even so, Stangl's cross-examination gave the jury a reason to conclude that some of Baldwin's injuries were caused by impacts after her death because Dr. Natarajan found no microscopic evidence that the healing process had begun. Moreover, Rodriguez obtained funding to hire a pathologist, Dr. Amy Gruszecki, to develop this claim for his federal petition. See Order on Motion for Funds 2, ECF No. 15. He presents no report or opinion from Dr. Gruszecki that Stangl overlooked any post-mortem injuries other than the ones mentioned during the cross-examination of Dr. Natarajan.
Under the circumstances, Rodriguez fails to show any merit to the claim that trial counsel was deficient for failing to investigate or argue that Baldwin's injuries were caused by a trash compactor. See Dowthitt v. Johnson, 230 F.3d 733, 747-48 (5th Cir. 2000) (holding, in the context of mental health, that counsel who recognizes the need for expert assistance and employs a defense expert is not ineffective for failing to canvass the field to find a more favorable expert), overruled in part on other grounds, Lewis v. Thaler, 701 F.3d 783, 790 (2012); see also Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (recognizing that the selection of an expert witness is a paradigmatic example of the type of strategic choice that, when made after a thorough investigation of the facts, is virtually unchallengeable); Williams v. Cain, 125F.3d269, 278 (5th Cir. 1997) (holding counsel not deficient for relying on expert who concluded defendant had no significant psychiatric disorders).
Even if the Court assumes trial counsel was deficient, Rodriguez fails to demonstrate Strickland prejudice. (Pet. 218.) Rodriguez argues that counsel's failure left the jury with the prejudicial impression that Rodriguez's personal brutality, rather than the trash compactor, was the source of the "great majority" of Baldwin's injuries. But there is no question that Rodriguez left her in the trash dumpster, the foreseeable and perhaps intended result of which was that she would be compacted like trash. The jury would thus simply conclude he caused some of the injuries by a means other than his hands. And the jury still would be left to consider strangulation and severe damage from the sexual assault that Rodriguez cannot attribute to a trash compactor. Rodiguez fails to establish as unreasonable the trial court's ruling that he did not undermine confidence in the verdict. See Salazar v. Quarterman, 260 F. App'x 643, 648-49 (5th Cir. 2007) (holding counsel's failure to retain pathologist, if deficient, did not cause prejudice at guilt where pathologist's major disagreement with medical examiner was whether one out of ten bruises on the victim predated her murder).
Because the claim against trial counsel has no merit, habeas counsel was not ineffective for failing to raise it. See Koch, 907 F.2d at 527. Under these circumstances, Claim 22 is procedurally barred. See Coleman, 501 U.S. at 735 n.1 Alternatively, under the preceding de novo review, the Court concludes this claim should be denied on the merits. The Court denies Claim 22.
CLAIM 22a : EXTENSION OF MARTINEZ
The Petition contains two claims numbered "22." For clarity, the Court numbers this claim "22a."
In Claim 22a, Rodriguez argues that the procedural-bar exception in Martinez should be extended to cases where initial-review collateral counsel (here, state habeas counsel Mansur) raises a claim of ineffective assistance against trial counsel but "fails to do anything of consequence to press those claims." Rodriguez specifically contends that Mansur, who presented live testimony from twelve witnesses, a deposition from another witness, and twenty exhibits or affidavits over the course of a six-day habeas hearing in state court, rendered ineffective assistance with respect to the Wiggins claim (Claim 1) by failing to conduct a reasonable investigation into "corroborating witnesses." (Pet. 222-23.) Rodriguez asks to return to state court to further investigate and litigate the Wiggins claim.
The authority cited for this expansion of Martinez is a statement respecting the denial of a writ of certiorari made by Justices Breyer and Sotomayor in Gallow v. Cooper, 133 S. Ct. 2730 (2013). Thus, the argument is not based on any controlling federal law. Authority in this Circuit provides that Martinez does not apply to claims (like Claim 1) that were fully adjudicated on the merits in state court because those claims are, by definition, not procedurally defaulted. Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir. 2014). As Respondent correctly points out, he did not assert a procedural bar to Claim 1, and there is no procedural bar to overcome. Moreover, even if this Court were authorized to expand Martinez somehow to include claims fully litigated on the merits, Rodriguez makes only conclusory allegations about Mansur's failure to investigate and find witnesses, which are insufficient to raise a constitutional issue. See Miller, 200 F.3d at 282.
Although this claim is couched in terms of overcoming a procedural bar, in actuality it seeks relief based solely on the alleged ineffective assistance of state habeas counsel while litigating an exhausted claim in state court. Such claims are barred by statute. See § 2254(i) (providing that the ineffectiveness or incompetence of counsel during federal or state collateral post-conviction proceedings shall not be a ground for relief in a proceeding under § 2254). For all of these reasons, the Court denies Claim 22a.
CLAIM 23: TEXAS' FUTURE DANGEROUSNESS SPECIAL ISSUE
Rodriguez contends that the Texas future dangerousness issue violates the Constitution in that it fails to define the terms "probability," "continuing threat to society," and "criminal acts of violence." He concludes that his death sentence was based on an unconstitutionally vague aggravating element and that the jury was unable to give full consideration and effect to his mitigating evidence. This claim was rejected by the CCA on direct appeal. Rodriguez, 2011 WL 1196871, at *24 (rejecting Claims 38 and 39). Respondent asserts that the state court properly denied the claim based on established precedent. See Sprouse v. Stephens, 748 F.3d 609, 622-23 (5th Cir. 2014), cert. denied, 135 S. Ct. 477 (2014) (holding that failure to define terms does not run afoul of Maynard v. Cartwright, 486 U.S. 356 (1988) or Godfrey v. Georgia, 446 U.S. 420 (1980)).
The Fifth Circuit has repeatedly rejected the argument that the Texas statute is unconstitutionally vague. See Turner v. Quarterman, 481 F.3d 292, 299 (5th Cir. 2007) (recognizing that the Circuit has rejected claims alleging vagueness of future dangerousness terms); Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996) (rejecting claim that Texas special issues are unconstitutionally vague); James v. Collins, 987 F.2d 1116, 1119-20 (5th Cir. 1993) (acknowledging that "[t]o the extent that the words strike distinct chords in individual jurors, or play to differing philosophies and attitudes, nothing more is at work than the jury system . . . . [S]uch words . . . ultimately mean what the jury says by their verdict they mean") (quoting Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir. 1984)). To the extent that Rodriguez urges this Court to adopt a new rule requiring Texas to define terms in the future dangerousness special issue, such a rule would also violate Teague. See Teague, 489 U.S. at 310 (holding, with two exceptions, that new constitutional rules of criminal procedure are not applicable to cases that became final before the new rule was announced). Rodriguez fails to demonstrate that the CCA's ruling runs afoul of clearly established federal law. The Court denies Claim 23.
CLAIM 24: TEXAS' 12/10 RULE
Rodriguez asserts that the Texas "12/10 Rule" violates the Eighth and Fourteenth Amendments by failing to instruct the jury that the vote of a single juror could result in a life sentence. Instead, the Texas jury is told that it may answer "no" to the future dangerousness issue or "yes" to the mitigation issue only if "10 or more jurors agree." See (2 CR 563.) In other words, the jury is told that answers in favor of a life sentence require ten votes and answers in favor of a death sentence require unanimity, but they are not told that if less than ten jurors vote in favor of a life sentence, the defendant will still be given a life sentence.
Rodriguez acknowledges Circuit precedent holding that this argument is Teague-barred. But he argues that the value of such precedent has been diminished by Nelson v. Quarterman, 472 F.3d 287, 297 (5th Cir. 2006) (en banc), which reinforces the rule that jurors must have a vehicle with which to give "full consideration and full mitigating effect" to the defendant's mitigation case. He argues that the 12/10 rule discourages lone or minority "life" voters by encouraging them to join the majority to form a unanimous verdict, and it does so by withholding from the jury the truth that only one vote is needed to prevent the imposition of a death sentence. Respondent argues that the state court's rejection of this claim on direct appeal was reasonable. See Rodriguez, 2011 WL 1196871, at *23-24.
The Supreme Court has specifically rejected the argument that the Eighth Amendment requires jurors to be instructed regarding the consequences of their failure to agree or on a breakdown in the deliberative process. See Jones, 527 U.S. at 382. A circuit opinion such as Nelson cannot mandate otherwise. See Blue, 665 F.3d at 670 (holding that Jones insulates the 12/10 rule from constitutional attack). Furthermore, Nelson does not even address the statute used in this case; it involved a previous statute that contained no mitigation special issue. See Nelson, 472 F.3d at 290. And, although the jury in this case was not told (and did not have to be told) that one juror's vote could prevent the imposition of a death sentence, the jury was told that the answers to the special issues resulting in a death sentence required unanimity. (2 CR 563.)
Rodriguez nevertheless argues that the 12/10 rule is akin to the "nullification" instruction that was struck down in Penry II. Penry v. Johnson, 532 U.S. 782, 804 (2001) ("Penry II"). Rodriguez asserts that the 12/10 rule misleads the jury into believing that ten votes are required for a life sentence when, in actuality, one juror in favor of life can cause a hung jury, which results in a life sentence. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(g) (providing for life sentence if jury is "unable to answer any issue submitted"). The result, Rodriguez contends, is that life-voters will change their votes and follow the majority upon the false belief that their one vote could make no difference. Rodriguez concludes that the rule impermissibly leads jurors to place their individual responsibility onto their fellow jurors. These arguments are unpersuasive for several reasons.
First, the court-made nullification mechanism for giving effect to mitigating evidence was deemed unconstitutional because it rendered the jury charge internally inconsistent—in essence, it told the jurors to change an honest "yes" answer to the future-dangerousness special issue to "no" if they believed the mitigation evidence mandated a sentence less than death. Id. at 798-99. So jurors who wanted to answer the future-dangerousness issue falsely to give effect to the mitigating evidence would have had to violate their oath to render a "true verdict." Id. at 800. The 12/10 instructions, on the other hand, do not instruct the jurors to violate their oaths or change their honest answers.
The nullification instruction was created by Texas courts as a temporary cure for Penry I error while the state legislature amended the statute to include the distinct mitigation special issue that was used in this case. See Smith v. Texas, 550 U.S. 297, 301 (2007). --------
Second, Rodriguez provides no support for his assertion that jurors in favor of a life sentence are more likely to change their vote to form a consensus than jurors in favor of a death sentence. Further, although Rodriguez's petition does not explicitly say so, his argument rests on the assumption that he has a constitutional right to a hung jury such that each juror must be informed that he can cause a life sentence by being the "single hold-out juror for life" or by refusing to deliberate. As noted, the Supreme Court has rejected the assertion that the jury must be told the consequences of a breakdown in the deliberative process. See Jones, 527 U.S. at 381-82 (noting that the very object of a jury system is to secure unanimity by a comparison of views and by arguments among the jurors).
In his Reply, Rodriguez asserts that his claim is supported by Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), which relied on Mills v. Maryland, 486 U.S. 367 (1988), in striking down jury instructions that misstated a unanimity requirement for finding mitigating evidence. This case is distinguishable on the facts. Here, the jury was specifically instructed that they need not agree on what particular evidence supports an answer in favor of a life sentence to either one of the special issues. (2 CR 562, 563.) Moreover, this Circuit has rejected the argument that Kubat and Mills render the 12/10 rule unconstitutional. See Allen v. Stephens, 805 F.3d 617, 632, 633 n.3 (5th Cir. 2015), cert. denied, 2016 WL 1134757 (May 23, 2016).
Rodriguez fails to show that the state court ruling violates clearly established federal law, and the jury instruction Rodriguez proposes would violate Teague. The Court therefore denies Claim 24.
CLAIM 25: MOTION TO SUPPRESS FINANCIAL EVIDENCE
Rodriguez's final claim is a Fourth Amendment claim. He argues that the state court wrongly overruled his motion to suppress financial information of his identity that was obtained in violation of a federal statute and the federal rules of criminal procedure. Respondent argues that Rodriguez fails to demonstrate that the state court ruling was unreasonable and that the Fourth Amendment challenge is barred from federal habeas review.
I. Background facts
Rodriguez moved the trial court to suppress financial evidence of his identity as a violation of the Constitution. (1 CR 115.) The prosecution challenged Rodriguez's standing to object. (1 CR 224.) The trial court held a pretrial hearing on the motion after which it ordered briefing from the parties. (2 RR 170-209.) In his brief, Rodriguez asserted that the information was inadmissible under article 38.23 of the Texas Code of Criminal Procedure because the Lubbock Police Department illegally obtained the information from the FBI in violation of the federal Right to Financial Privacy Act ("RFPA"). See 12 U.S.C. § 3420; (1 CR 235-39.) Rodriguez also argued that all evidence seized via the subsequently-obtained search warrants was inadmissible as "fruit of the poisonous tree." (1 CR 239-40.) The State argued, among other things, that the RFPA is a purely civil statute that does not impact the suppression of evidence in a criminal case and that the evidence was admissible under the Texas exclusionary rule (article 38.23) because it was obtained lawfully by federal agents through a grand jury subpoena. (1 CR298-309.) Rodriguez filed a reply clarifying his argument that the federal agents were not authorized to share the grand jury records with the Lubbock police under the RFPA, which allows grand jury information to be used only in accordance with Rule 6 of the Federal Rules of Criminal Procedure. See § 3420(a); (1 CR 325-34.)
The trial court denied the motion to suppress. In its written findings and conclusions, the court noted that the FBI was involved in the murder investigation because Baldwin was an informant in a federal prosecution against Richard Corder, who had become a suspect in Baldwin's death. (2 CR 632.) Furthermore, there was an ongoing federal grand jury investigation into Joanna Rogers's death. (2 CR 633.) The trial court held that the financial information was obtained lawfully for several reasons: (1) a Lubbock police officer was properly designated by the United States Attorney to assist in the investigation of a potential federal crime under Rule 6(e) of the Federal Rules of Criminal Procedure; (2) the violation of the RFPA, a civil statute, does not result in the suppression of evidence; and (3) the fruit-of-the-poisonous-tree doctrine only applies to evidence seized in violation of the Constitution. The trial court also ruled that the recorded police statement Rodriguez made with counsel present was admissible because it was sufficiently attenuated from the taint of the alleged illegality. (2 CR 636-648.) The trial court's findings were upheld by the CCA in a claim on direct appeal. Rodriguez, 2011 WL 1196871, at *25-26.
II. Analysis
Although Rodriguez's petition states a Fourth Amendment violation (Pet. 236), his argument does not brief or assert any Fourth Amendment law. Citing United States v. Miller, 425 U.S. 435 (1976), Rodriguez acknowledges that the Fourth Amendment does not protect a customer's banking records because a customer has no reasonable expectation of privacy in the bank records. Rodriguez also asserts the RFPA was passed by Congress in response to Miller and that his claim is therefore statute-based. (Pet. 240-41.) He further acknowledges that the RFPA does not authorize the suppression or exclusion of evidence. (Pet. 241.) Rather, his claim is made pursuant to the Texas exclusionary rule, which prohibits the use of evidence "obtained by an officer or other person in violation of any provisions of . . . the laws of the United States of America." Tex. Code Crim. Proc. Ann. art. 38.23(a). He contends that the state court's decision not to apply article 38.23 was incorrect because the Lubbock police are not "government personnel" as that term is defined by the legislative history of Rule 6. (Pet. 242-43.)
Rodriguez presents no federal claim for this Court to review. He acknowledges that, under these facts, neither the Fourth Amendment nor the RFPA are a basis for excluding the financial records. He instead challenges the reasoning underpinning the CCA's refusal to apply the Texas exclusionary rule. It is not the function of a federal habeas court to review a state court's interpretation of its own law. See Charles v. Thaler, 629 F.3d 494, 500 (5th Cir. 2011).
Alternatively, any Fourth Amendment claim is barred. The United States Supreme Court has held that where a state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. 465, 494 (1976). The Fifth Circuit applies this bar as long as the state gives the defendant an opportunity to litigate the issue, whether or not the defendant takes advantage of the opportunity. Shislnday v. Quarterman, 511 F.3d 514, 525 (5th Cir. 2007) (citing Janecka v. Cockrell, 301 F.3d 316, 320-21 (5th Cir. 2002)). Stone forecloses review absent allegations that the processes provided by a state are routinely or systematically applied in such a way as to prevent the actual litigation of Fourth Amendment claims on their merits. Moreno v. Dretke, 450 F.3d 158, 167 (5th Cir. 2006)(quoting Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980)).
Rodriguez does not contend that his opportunity to litigate this claim was deficient. He contends in his Reply that the Stone bar was abrogated by the passage of the AEDPA, citing Carlson v. Ferguson, 9 F. Supp. 2d 654 (S.D. W.Va. 1997). Rodriguez provides no Supreme Court opinion holding that the AEDPA abrogated the rule in Stone. Furthermore, this Circuit has continued to apply Stone after the AEDPA to capital cases. E.g., Busby v. Dretke, 359 F.3d 708, 722-23 (5th Cir. 2004); Davila v. Davis, ___ F. App'x ___, 2016 WL 3171870 at *23 (5th Cir. 2016); see also Newman v. Wengler, 790 F.3d 876, 878-79 (9th Cir. 2015) (rejecting argument made under Carlson v. Ferguson that AEDPA abrogated Stone doctrine). Accordingly, the Fourth Amendment claim is barred by Stone. For all of these reasons, the Court denies Claim 25.
CONCLUSION
For the reasons stated above, the Court finds:
1. Rodriguez has failed to demonstrate that the state court's adjudication of his claims was contrary to, or an unreasonable application, of Supreme Court law and the instant application for writ of habeas corpus should be DENIED and DISMISSED with prejudice.
2. All relief not expressly granted should be DENIED and all pending motions not previously ruled on should be DENIED.
3. Pursuant to Rule 22 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 2253(c), a certificate of appealability should be DENIED. For the reasons set forth herein, Rodriguez has failed to show that reasonable jurists (1) would find this Court's "assessment of the constitutional claims debatable or wrong," or (2) would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "debatable whether [this Court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El, 537 U.S. at 338.
4. Rodriguez may proceed in forma pauperis if he files a notice of appeal. 18 U.S.C. § 3006A(7).
SO ORDERED.
Dated August 1, 2016.
/s/_________
SAM R. CUMMINGS
SENIOR UNITED STATES DISTRICT JUDGE