Vasquez v. Quarterman

Full title: RICHARD VASQUEZ, Petitioner v. NATHANIEL QUARTERMAN, Director, Texas…

Court: United States District Court, S.D. Texas, Christi Division

Date published: Mar 28, 2008

Civ. No. CC-05-059 (S.D. Tex. Mar. 28, 2008)

Opinion

Civ. No. CC-05-059.

March 28, 2008

MEMORANDUM AND ORDER

HAYDEN HEAD, Chief Judge

A Nueces County jury convicted Petitioner Richard Vasquez of the capital murder of four-year-old Miranda Lopez and sentenced him to death. His conviction and sentence were twice upheld by the Texas Court of Criminal Appeals — on direct appeal and in state habeas corpus proceedings. Vasquez v. State, No. 73,461 (Tex.Crim.App. Oct. 3, 2001); Ex parte Vasquez, No. 59,201-01 (Tex.Crim.App. Jan. 26, 2005). Vasquez is now before this federal court, alleging constitutional violations in his trial, sentencing and appeal, and seeks a writ of habeas corpus.

Anyone convicted in state court and in custody has the right to challenge the constitutionality of that detention by seeking a writ of habeas corpus from a federal court. Danforth v. Minnesota, 128 S.Ct. 1029, 1036 (2008). Congress, however, limited the power of the federal courts to grant relief to habeas petitioners when it passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254(d) (2000). Under the AEDPA, a state prisoner can obtain relief with respect to any claim adjudicated on the merits in State court proceedings only if the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Williams v. Taylor, 120 S.Ct. 1495, 1519 (2000).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the U.S. Supreme Court on a question of law or if the state court decides a case differently than the Court on a set of materially indistinguishable facts. Williams v. Taylor, 120 S.Ct. at 1519. The "unreasonable application" clause requires the federal courts to inquire "whether the state court's application of clearly established federal law was objectively unreasonable," not merely incorrect. Id. at 1521; Smith v. Quarterman, 515 F.3d 392, 399 (5th Cir. 2008). "A state court unreasonably applies established federal law when it correctly identifies the governing precedent but unreasonably applies it to the facts of a particular case." Smith v. Quarterman, 515 F.3d at 399. A petitioner bears the burden of demonstrating the unreasonableness of state factual findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Vasquez raises three claims of ineffective assistance of counsel in violation of the Sixth Amendment. First, he asserts that his trial counsel failed to adequately rebut evidence that he sexually assaulted Miranda Lopez. Vasquez next argues that his counsel's investigation and presentation of mitigation evidence was deficient. Finally, Vasquez argues that his appellate counsel was ineffective due to the alleged conflict of interest created by that attorney's representation of the State of Texas in two unrelated special prosecutions.

Respondent Nathaniel Quarterman, who has custody of petitioner and is charged with the duty to discharge the sentence of the jury, seeks summary judgment. "As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). For ordinary summary judgment motions, the district court construes the facts in the case in the light most favorable to the non-moving party. However, where a habeas petitioner's factual allegations have been adversely resolved by express or implicit findings of state courts, the prisoner must demonstrate by clear and convincing evidence that the presumption of correctness established by 28 U.S.C. § 2254(e)(1) should not apply. Otherwise, it is inappropriate for the facts of a case to be resolved in the petitioner's favor. See Marshall v. Lonberger, 103 S.Ct. 843, 849-50 (1983); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir. 2002). Consequently, where the Texas state courts have determined facts, this Court is bound by such findings unless an exception to 28 U.S.C. § 2254 applies.

With regard to the claim of ineffective assistance of counsel at the guilt/innocence phase of the trial, the Court finds that the state court's decision neither "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law," nor "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). On Vasquez's second claim, the Court finds that the state court's determination that Vasquez's counsel reasonably investigated Vasquez's background was an "unreasonable determination of facts." Id. However, the Court finds that the state court's conclusion that no prejudice resulted from omitted mitigation was not an "unreasonable application" of federal law. Id. The Court finds that the state court's rejection of Vasquez's third claim — ineffective assistance of appellate counsel — was not "contrary to" or an "unreasonable application of" clearly established federal law. Id. Having considered the petition, the summary judgment motion, the state court record, and applicable law, the Court therefore GRANTS respondent's Motion for Summary Judgment and DENIES Vasquez's petition.

I. Background Facts and Proceedings

The facts, as set forth by the Texas Court of Criminal Appeals, are as follows:

Vasquez was charged with intentionally or knowingly causing the death of Miranda Lopez by striking her on the head with his hand. During the guilt/innocence stage, the evidence showed that at the time of the offense, Vasquez, who was eighteen years old, was living with his parents; his girlfriend, Brenda Lopez; their four-month-old child, Meagan; and Brenda's four-year-old child, Miranda. Vasquez had a serious addiction to heroin and cocaine which had begun when he was thirteen. Although his adoptive parents made numerous efforts to help him with his drug problem, Vasquez remained clean only for a short period of time and invariably reverted to his drug use.

By March 1998, Vasquez and Brenda had become so addicted to drugs that, according to Vasquez, they stopped caring about themselves, the children, or anything else except drugs. They would leave the children anywhere so that they could go out and steal things to sell in order to buy more drugs. Vasquez would become infuriated when the drugs ran out and he did not have any more money to feed his habit.

According to Vasquez, he and Brenda argued throughout the night of March 4th, during which time he injected himself with heroin and cocaine before falling asleep in the early hours of March 5th. Vasquez injected himself with heroin again at 10:30 a.m. before taking Brenda to work between 11 a.m. and noon. Vasquez drove Brenda to work while the children sat in the back seat of the car. On the way, Vasquez got angry with Brenda because he had to watch the children and would not be able to go steal more things to sell for drugs.

After Vasquez and the children returned home, sometime during the late morning, Vasquez's neighbor saw a child Miranda's age playing in the backyard. After about 10-15 minutes, she heard a loud, angry voice coming from Vasquez's door. She saw Vasquez standing there and heard him say to the girl in Spanish, "You're going to get it, stupid." Vasquez denied that this incident ever occurred.

According to Vasquez's testimony at trial, after he dropped Brenda off, he and the children returned home and Vasquez needed a fix. He called Brenda to ask her where the heroin was and Brenda would not tell him. This angered Vasquez and although Vasquez acknowledged that Miranda was not doing anything wrong, he struck her in the head. He could not say how many times he hit her. He then called Brenda again who told him where the drugs were and he injected another round of heroin. He told Miranda to go get a stool from his parents' room and brush her teeth. When Miranda came back with the stool, Vasquez claimed that Miranda fell down. He put toothpaste on her toothbrush and left the room. When he came back, Miranda was face down in the sink. He repeatedly tried to make her stand, but she kept falling down. He then put her on his parents' bed and called "911" around 1:30 p.m., telling the dispatcher that Miranda was choking. When the deputy constable and the emergency medical technicians arrived at the house, Vasquez said that Miranda had fallen off a wooden stood and hit her head. No wooden stool was in the area, although one was later found next to the bed where Vasquez placed Miranda. Miranda had blood on her nose and mouth which Vasquez claimed was a result of Miranda biting him when he put his fingers in her mouth to prevent her from swallowing her tongue. The paramedics also noted that Miranda had a bump on the back of her head, noticeable bruises of various stages on her back, and bruising around her eyes which indicated a possible head injury. Miranda was taken to the hospital. In the meantime, Vasquez called Brenda and told her that Miranda had fallen off of a stool and hit her head. He picked up Brenda at work and they headed to the hospital — both injecting heroin on the way.

It was determined by Dr. Michael Burke, a paramedic neurosurgeon who performed brain surgery on Miranda, that Miranda suffered from trauma to the head. He testified that her brain injuries were equivalent to those she would have sustained had she been ejected from a car traveling 65 m.p.h. Burke's final diagnosis was that Miranda suffered severe brain injury from child abuse. Leann Box, a sexual assault nurse, examined Miranda at 7 p.m. and noted that she had extensive bruising on her head, face, chest, hips, pelvic region, genitalia area, ankle, thigh, shoulder, back, and arms. Some of these bruises were formed from injuries made within the previous twelve to twenty-four hours. The bruising on Miranda's hips was consistent with injuries that could be caused from being held from behind while being sexually assaulted.

Box also performed a detailed genital exam. Miranda had multiple abrasions and tears in her genital-anal region. Many of the tears were the result of injuries that had occurred no more than twelve hours earlier. Miranda had a two-centimeter tear between her anus and labia minora that was approximately one half-centimeter deep (just short of muscle tissue). In over 200 sexual assault examinations, Box had never seen a tear this thick. This type of tear would be caused from a great deal of force and would have likely bled a great deal. Box testified that the tear was not bloody when she examined Miranda, which led her to believe that it had been cleaned. Although extremely painful, rubbing alcohol and pressure could have stopped the bleeding.

Vasquez was arrested and crime scene technicians photographed him, noting the bruising on his hand, fresh cuts to his thumb and finger, and needle marks on his arms. At Vasquez's home, officers and the crime scene technicians found blood on the wall and shower curtain in the bathroom where Miranda allegedly fell. There was a blood-stained t-shirt and coveralls were found in a clothes hamper, which Vasquez's father said he put there after finding them in the house. After searching the garbage, the crime scene personnel found two syringes, the cap to a tube of toothpaste, a hair brush, a long black hair, toilet paper with blood on it, and tissue paper that appeared to be saturated with rubbing alcohol inside of a garbage can in a plastic bag. Vasquez's father testified that he had taken the trash out of the bathroom and put it in the garbage can.

A pediatrician who helped establish a clinic for examining sexual assault victims testified as an expert witness. He summarized his findings by stating that in his twenty hears of practice, "This is really one of the most severe sexual assaults that I have seen in my career." Additionally, the Nueces County Medical Examiner testified that an analysis of Miranda's blood indicated a potentially lethal amount of cocaine in her system. It was double the lethal amount for an adult. The doctor could not determine how the cocaine got into Miranda's body.

Vasquez could not explain the bruising, genital-anal injuries, or the cocaine. He denied sexually assaulting Miranda or giving her drugs. But Vasquez did admit that he was the only adult in the house that morning and that he had struck Miranda in the head.

Vasquez v. State, No. 73,461 at 3-7.

II. Analysis

Vasquez raises two claims of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. To prevail on a claim for ineffective assistance of counsel, petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness" and (2) that "the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984).

A. Failure to Investigate and Counter the State's Evidence of Sexual Assault

Vasquez alleges that he received ineffective assistance from his trial counsel because they failed to adequately investigate and counter the State's evidence of sexual assault. Countering the evidence of sexual assault was critical to the defense, both because the evidence was inflammatory to the jury and because the State used the sexual assault as evidence of Vasquez's mens rea. The state trial court considered this claim and, finding adversely to the petitioner, denied the writ of habeas corpus. State Court Findings of Fact and Conclusions of Law (May 19, 2004) (attached as appendix A to this opinion). The Texas Court of Criminal Appeals affirmed. Ex parte Vasquez, No. 59,201-01.

Although Vasquez was never indicted for rape or sexual assault, the State presented evidence, including several expert witnesses, and argument on this issue. The prosecution heavily relied upon this evidence, as it was entitled to do, to show Vasquez's violent, intentional state of mind. Vasquez asserts that trial counsel should have explored inadequacies in the Corpus Christi crime lab, tested the DNA of other relatives to determine whether they too matched any of the samples taken, and challenged the admissibility of the DNA evidence presented. Vasquez argues that his attorneys should have presented a DNA expert to counter the State's expert, Dr. Nguyen. Vasquez further argues that counsel failed to adequately present evidence that Miranda had suffered a straddle injury, rather than a sexual assault.

Vasquez demonstrates neither the deficiency of performance nor the prejudice required by Strickland for a showing of ineffective assistance of counsel. The state court's rejection of this claim of ineffective assistance of counsel was neither "contrary to" nor an "unreasonable application of" clearly established federal law. 28 U.S.C. § 2254(d)(1).

1. DNA Evidence

During the state habeas proceedings, the trial court considered the DNA evidence admitted in Vasquez's case and found that,

Vasquez's trial attorneys reasonably decided not to challenge the State's DNA evidence or hire an independent DNA expert because the DNA evidence offered by the State was generally neutral and did not tend to prove anything more than Vasquez's own admission that he had beaten the victim to death and that both he and the victim were bleeding at the time, and because the DNA evidence may even have helped the defense by showing that none of Vasquez's semen was found in the victim or on her clothes.

Appendix A at 9. At trial, the State's DNA expert, Dr. Nguyen, testified that the fingernail scrapings taken from Miranda revealed no evidence of a struggle with Vasquez. 35 Tr. 141.¹ He further explained that no semen was found on or inside of the victim's body. 35 Tr. 168-69. The defense highlighted this testimony in its closing arguments. 36 Tr. 28. The bloodstains about which Nguyen testified were consistent with both the State's account of events (a violent assault) and the defendant's explanation (Miranda's fall and Vasquez's wounded hand). Therefore, the DNA evidence that Vasquez's trial counsel allegedly failed to rebut was largely favorable to the defense and otherwise equivocal. Vasquez failed to prove by clear and convincing evidence that the state court's finding was unreasonable. 28 U.S.C. 2254(e).

1 "Tr." refers to the transcript of Richard Vasquez's trial. "H" refers to transcripts of the state habeas corpus proceedings.

Vasquez argues that counsel should have presented an expert to rebut Nguyen's assertion that semen could be washed away. Even were defense counsel deficient in failing to present such evidence, however, petitioner fails to demonstrate a reasonable probability that the omission prejudiced the defendant. During state habeas proceedings, the defense presented the testimony of Dr. Libby, a DNA expert, that semen is detectable even after washing. At trial, two of the State's experts, Nurse Box and Dr. Lukefahr, offered various explanations for the common absence of semen in cases of sexual assault. Vasquez also testified to his explanation — that no sexual assault occurred. With alternative explanations before the jury, the petitioner has not demonstrated a reasonable probability that undermining one of them would have caused a different result.

2. Straddle Injury

Vasquez avers that his trial counsel deficiently failed to offer evidence of the alternative theory that Miranda suffered a straddle injury, rather than a sexual assault and argues that a credible alternative explanation could have blunted the effects of the inflammatory evidence. Vasquez first urges the testimony of Dr. Bruce Henderson that Miranda might have had a straddle injury. Vasquez, however, fails to demonstrate that Dr. Henderson would have even been willing to testify and therefore falls short of the necessary showing. McCullar v. Scott, 58 F.3d 635, 635 (5th Cir. 1995) ("In order for the appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only that this testimony would have been favorable, but also that the witness would have testified at trial."). Furthermore, the jury heard Henderson's conclusion when defense counsel cross-examined Dr. White, who reviewed Henderson's records. Therefore Vasquez demonstrates no prejudice from the omission of the testimony.

Vasquez does assert that Dr. Randall Frost, an assistant medical examiner, was prepared to testify. The state trial court found during the habeas proceedings that "Vasquez failed to offer any evidence to show that Dr. Randall Frost's testimony would have aided the defense in any way." Appendix A at 8. Frost's speculative testimony, that the injuries could have been caused by a straddle injury, would not likely have overcome the testimony of the State's two witnesses, both experts in sexual assault. Petitioner fails to demonstrate by clear and convincing evidence that the state court's finding is unreasonable. 28 U.S.C. § 2254(e).

Vasquez also claims that counsel should have offered the testimony of family members that they saw Miranda playing on an exercise bicycle that could have caused a straddle injury. The state court found that "Vasquez failed to offer any evidence from family members to show that they could have testified to anything other than speculative suggestions." Appendix A at 8. Given the depth of the abrasions, these injuries would have bled. Such an injury would have occurred in the twelve hours prior to her death, when Miranda was in the care of Richard Vasquez or another member of the family who would have noticed profuse bleeding. Vasquez does not assert, however, that any witness could testify that they had seen Miranda fall, heard her cry or complain of an injury, noticed blood or the abrasion when they bathed her, or otherwise present any direct evidence that Miranda sustained a straddle injury. Vasquez, therefore, offers no witness who could directly confront the testimony of two experts, Nurse Box and Dr. Lukefahr, that Miranda suffered a sexual assault. Petitioner fails to demonstrate by clear and convincing evidence that the state court's finding is unreasonable. 28 U.S.C. § 2254(e). Vasquez fails to show any prejudice resulting from the omission of such inconclusive testimony.

3. Cumulative Prejudice

Petitioner fails to meet the required showing for the evidence specifically discussed above. Furthermore, even if defense counsel had succeeded in parrying all evidence of sexual assault, Vasquez fails to show a reasonable probability of a different outcome. Contrary to Vasquez's assertion, the evidence of sexual assault was not critical to the jury's finding of intent to kill. An expert testified that Miranda's severe head injuries were equivalent to those caused by a 65 m.p.h. car crash. She had bruising throughout her body. Medical testimony suggested that Vasquez lied to doctors and the 911 operator about the nature of Miranda's injuries. She had twice the lethal dose of cocaine in her system, which a drug addict above others would understand. 36 Tr. 20. All of this evidence provided substantial basis for the jury's mens rea determination. Vasquez, therefore, fails to demonstrate a reasonable probability that in the absence of the evidence of sexual assault, a jury would have found him not guilty of murder.

B. Failure to Investigate and Present Available Mitigation Evidence

Vasquez next asserts that his trial counsel failed to adequately investigate and present available mitigation evidence. In order to determine whether Vasquez received ineffective assistance of counsel, the court must determine whether "counsel's representation fell below an objective standard of reasonableness." Strickland, 104 S.Ct. at 2063-64. The American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines") state that counsel for a capital defendant should make "efforts to discover all reasonably available mitigating evidence." ABA Guidelines 11.4.1 (1989) (attached as Appendix B to this opinion).² Although the ABA Guidelines are not mandatory, they are the only standards of reasonable practice that either side has offered the Court. Furthermore, the Supreme Court has repeatedly relied upon the ABA Guidelines to inform its determination of the "objective standard of reasonableness" set forth in Strickland v. Washington. Rompilla v. Beard, 125 S.Ct. 2456, 2466 n. 7 (2005) (ABA Guidelines are "standards to which we [the Supreme Court] have long referred as guidelines for determining what is reasonable"); Wiggens v. Smith, 123 S.Ct. 2527, 2536-37 (2003); Strickland, 104 S.Ct. 2052 (1984). The Fifth Circuit has similarly relied upon the ABA Guidelines in Sonnier v. Quarterman. 476 F.3d 349, 357-58 (5th Cir. 2007).

2 The 1989 Guidelines were superseded in 2003, but the 1989 version was still in effect at the time of Vasquez's trial.

1. Evidence on Vasquez's Family and Social Background

a. Performance

Vasquez argues that his attorneys failed to adequately investigate his social history to present as mitigation evidence in the punishment phase of his trial. The Supreme Court has repeatedly acknowledged the importance of presenting a defendant's childhood and family background as mitigation evidence. See, e.g., Rompilla v. Beard, 125 S.Ct. 2456; Wiggens v. Smith, 123 S.Ct. 2527; Williams v. Taylor, 120 S.Ct. 1495. The Supreme Court has explained that "evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Penry v. Lynaugh, 109 S.Ct. 2934, 2947 (1989) (quoting California v. Brown, 107 S.Ct. 837, 841 (1987) (O'Connor, J., concurring)). Indeed, the Fifth Circuit has acknowledged that "[g]enerally accepted standards of competence require that counsel conduct an investigation into [a defendant's] background." Smith v. Quarterman, 515 F.3d 392, 405 (5th Cir. 2008).

For example, the Supreme Court in Williams v. Taylor found deficient investigation where counsel did not begin preparing for mitigation until a week before the trial and failed to uncover available records that would have demonstrated defendant's "nightmarish childhood." Williams v. Taylor, 120 S.Ct. at 1514. In Wiggens, the Supreme Court found the mitigation investigation unreasonable where defense counsel relied solely upon three sources — an IQ test, the presentence investigation report and Baltimore's department of social service records. Wiggens's attorneys failed to hire a mitigation specialist or interview witnesses and therefore failed to discover his history of severe abuse. Wiggens, 123 S.Ct. at 2537. The Fifth Circuit has similarly found deficient investigation where defense counsel, at defendant's request, failed to interview potential mitigation witnesses in the defendant's family. Sonnier v. Quarterman, 476 F.3d 349. (5th Cir. 2007).

Vasquez's counsel claimed that they made a strategic decision to present Vasquez as coming from a good home. It is true that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 2535. See also, Burger v. Kemp, 107 S.Ct. 3114 (1987) (counsel reasonably decided not to present evidence of family background after several interviews with defendant's mother, a family friend and former army colleagues); Smith v. Quarterman, 515 F.3d at 405 (finding reasonable investigation where counsel interviewed numerous family members and childhood acquaintances). However, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggens, 123 S.Ct. at 2535 (quoting Williams v. Taylor, 120 S.Ct. 1495). The Wiggens Court found the curtailment of investigation especially unreasonable where the limited records suggested a troubled childhood that should have been uncovered. Id. at 2538 ("In assessing the reasonableness of an attorney's investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.").

Thus, like the Court in Wiggens, this Court must focus on whether the underlying the allegedly strategic choice "was itself reasonable." Id. at 2536. The trial court made the following findings of fact and conclusions of law:

Vasquez's trial attorneys reasonably determined that pursuing further evidence of Vasquez's social history was unnecessary to make an informed choice among possible defenses, and their failure to investigate further the negative influence that Vasquez's biological parents played in his early years resulted from a reasoned strategic judgment and not from inattention. . . .

Vasquez's trial attorneys adequately investigated mitigating evidence concerning his social history, but exercised sound trial strategy in declining to present such evidence at trial, since it could have prejudiced his case on punishment issues.

Appendix A at 2, 20. This Court must determine, therefore, whether petitioner has demonstrated by clear and convincing evidence that the state court's finding was unreasonable and petitioner's attorneys failed to conduct an objectively reasonable investigation.

None of Vasquez's attorneys interviewed his biological mother or father, both of whom were willing to testify on Vasquez's behalf. 2 H. 219, 3 H. 38, 8 H. Ex. 23. Juan Antonio Vasquez and Olivia Vasquez, Richard Vasquez's uncle and aunt, stated in affidavits that petitioner's attorneys barely spoke to them before their testimony in the mitigation case and never prepared them to testify. 8 H. Ex. 21, 22. Defense counsel testified that they hired no mitigation specialist to assist them in preparing the penalty phase of the trial, though they felt that the trial court would have approved funds for such an expert. 2 H. 221, 3 H. 55, 113-14. Indeed, Mr. Collina, the attorney responsible for petitioner's mitigation case, stated that he thought mitigation experts were only useful for defendants with "no family." 3 H. 54. Collina stated that because Vasquez "had a loving family," no mitigation expert was necessary. 3 H. 55.

Had Vasquez's attorneys interviewed his parents and sister, they would have developed an entirely different understanding of his extremely troubled childhood. Marta Vasquez, petitioner's biological mother, drank throughout her pregnancy and continued to drink daily during Vasquez's youth. 8 H. Ex. 23. Ricardo Vasquez, the petitioner's biological father, testified that he began using cocaine and heroin at the age of fourteen and became addicted. 3 H. 116. He has been in prison frequently since that time. 3 H. 117. From the time that Richard Vasquez was a baby, his father took him to buy drugs, and used drugs in his presence. Richard also saw his father selling drugs from the front porch of their home. Ricardo brought Richard with him to rob houses for drug money. He even taught Richard to sell heroin. Richard watched his father get arrested.

Collina dismissed the importance of Vasquez's biological parents, claiming they were involved in his life only "at a very young age." 3 H. 77. However, Ricardo Vasquez affirmed that even after Richard was adopted they continued to spend time together. 3 H. 123, 127. Richard also continued to spend time with his mother Marta into his teenage years. Marta lived with a drug addict and dealer who also used drugs with Richard. 3 H. 126.

Ricardo Vasquez further explained the history of drug abuse and violence that permeated their family. One of Richard's uncles died of an overdose, while two others were murdered in drug-related violence. Richard's sister Brenda has also been addicted to cocaine and heroin, and her boyfriend used drugs with Richard. 8 H. Ex. 21, 25. Several other family members, including Richard's grandparents and great-grandparents, had drug and alcohol addictions. 8 H. Ex. 21.

Mr. Collina billed for only twenty hours of preparation for trial. 3 H. 107. At the state habeas proceedings, defense counsel testified that they did not have copies of his juvenile probation file or a complete set of medical records. 3 H. 75-76. Although they made minimal use of an investigator for the guilt/innocence phase, he did not work on the mitigation case. 3 H. 23. The defense used less than half of the fees approved by the Court for investigation. 3 H. 23.

Vasquez's counsel conducted virtually no investigation of a mitigation case. They never spoke to Vasquez's biological parents and only very briefly with his adoptive parents. Like the attorneys in Sonnier, "the trial attorneys did not talk to [petitioner's] family and acquaintances at the length or depth required for [mitigation] purposes." Sonnier, 476 F.3d at 357-58. They failed to hire a mitigation specialist, or even to use their court-funded investigator to speak with Vasquez's family. Vasquez's attorneys never had an accurate understanding of even the vague outlines of his childhood. With only the exception of his aunt and uncle, everyone in Vasquez's family suffered from drug and alcohol addictions. His family's whole way of life centered on addiction and crime. He was initiated into drugs and crime by not only his father but by almost every role model he had.

What little petitioner's attorneys did know should have led them to do additional investigation. Upon the suggestion of a troubled childhood, a reasonable attorney would have had at least a brief conversation with the biological parents to determine whether they could offer any important mitigation. Such a conversation would have quickly disproved counsel's unfounded preconception of the biological parents' minimal role in Richard's life. Instead, Vasquez's counsel failed to follow up on the modicum of background information they had. Indeed, Collina's justification for the mitigation strategy — Vasquez's loving family and the minimal role of his biological parents in his life — suggests that their "strategy" had little, if any, factual basis, and that the meager mitigation evidence presented was the result of "inattention, not reasoned strategic judgment." Wiggens, 123 S.Ct. at 2537.

For the reasons described above, the Court concludes that Vasquez's attorneys failed to perform an objectively reasonable investigation of mitigating evidence. Petitioner has demonstrated by clear and convincing evidence that the state court's factual finding was unreasonable. 28 U.S.C. § 2254(e). The state court's conclusion that there was no deficiency was an "unreasonable application" of federal law, as clearly established by the Supreme Court in Wiggens v. Smith, published before the state court's findings of fact and conclusions of law. 123 S.Ct. 2527.

b. Prejudice

Because the Court finds that Vasquez's counsel "fell below an objective standard of reasonableness," the Court must now consider the second prong of Strickland — whether "the deficient performance prejudiced the defense." Strickland v. Washington, 104 S.Ct. at 2064. In order to meet the second prong of Strickland, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 2068.

In evaluating a claim of ineffective assistance of counsel at the sentencing phase of a capital trial, the reviewing court considers, "whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 2069. The Supreme Court has found prejudice from failure to uncover mitigation when the available evidence was truly horrific, including extreme physical abuse and neglect. See, e.g., Williams v. Taylor, 120 S.Ct. 1495, 1514 (defendant's parents had been imprisoned for criminal neglect); Rompilla v. Beard, 125 S.Ct. 2456, 2468-69 (abuse included, inter alia, "his father . . . beat him when he was young with his hands, fists, leather straps, belts and sticks . . . His father locked Rompilla and his brother Richard in a small wire mesh dog pen that was filthy and excrement-filled . . ."); Wiggens, 123 S.Ct. at 2542 ("physical torment, sexual molestation, and repeated rape" at the hands of both defendant's biological mother and his subsequent foster parents). However, prejudice from omitted mitigation is especially hard to establish when the evidence at the guilt phase of trial is overwhelming or when the details of the crime are especially gruesome. Id. at 2057; Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999); Russel v. Lynaugh, 892 F.2d 1205 (5th Cir. 1989).

The trial court found that "had the jury been confronted with the mitigating evidence put forward by Vasquez in connection with the [state habeas proceedings], there is no reasonable probability that it would have resulted in a different sentence." Appendix A at 12. At trial, it was undisputed that four-year-old Miranda died while in Vasquez's sole care from a blow he delivered to her head. One expert stated that her injuries were equivalent to a 65 m.p.h. car accident. She had a lethal quantity of cocaine in her system. There was significant evidence of some type of sexual assault. There was also evidence of a history of abuse of the child. It is obviously difficult for the Court to predict what might influence a jury, but this Court finds that Vasquez's background, though terrible, does not reach the compelling level found sufficient to constitute prejudice by the Supreme Court. In the face of these gruesome facts, against such a young victim, Vasquez fails to demonstrate by clear and convincing evidence that the state court's finding on this point was unreasonable. 28 U.S.C. § 2254(e). Petitioner has failed to demonstrate the prejudice required by Strickland.

2. Evidence of Various Disorders

Vasquez further argues that during the punishment phase of the trial, counsel should have presented evidence that he suffers various disorders, including post traumatic stress disorder, attention deficit disorder, poly-substance dependence, fetal alcohol syndrome, learning disabilities, and a borderline IQ. Defense counsel did have reports from two doctors, Dr. Bonikowski, a neurologist, and Dr. Estrada, a psychologist. Vasquez now urges that his attorneys should have pursued further testing, including an MRI and an EEG.

Regardless of whether defense counsel should have pursued these additional tests, the Court finds no prejudice from the omission of any such evidence. Evidence of mental and neurological conditions is double-edged: while it could elicit the jury's sympathy, it could equally bolster the State's claims of future dangerousness by showing poor ability to control impulses and learn from past mistakes. See, e.g. Penry v. Lynaugh, 109 S.Ct. 2934, 2938-39 (1989) (evidence of mental retardation could be both mitigating and aggravating). The Fifth Circuit counsels deference to strategic decisions not to present such double-edged mitigation evidence. See, e.g. Martinez v. Quarterman, 481 F.3d 249, 254 (5th Cir. 2007) (mental disorder causing "savage and uncontrolled aggressiveness" was double-edged and counsel reasonably decided not to pursue it); Rector v. Johnson, 120 F.3d 551 (5th Cir. 1997) ("[A] tactical decision not to pursue and present potential mitigating evidence on the grounds that it is double-edged in nature is objectively reasonable."); Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996) (evidence of mental illness was double-edged).

Indeed, the opinions of Dr. Weinstein presented by petitioner epitomize the problem. After reviewing documentation and performing numerous tests, Weinstein diagnosed Vasquez with the disorders listed above. The effects of these disorders, as he described them, include "relevant limitations on his ability to regulate his behavior and emotions," inability to "regulate his response" to overwhelming circumstances, and the tendency to "act impulsively and without the awareness of his behavior." 8 H. Ex. 20. While this evaluation certainly helps to explain Vasquez's violent outburst against Miranda, it also suggests that Vasquez would continue to be a danger due to his inability to moderate his behavior.

The Court must again consider whether there is a reasonable probability that with the benefit of this evidence, the sentencer "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 104 S.Ct. at 2069. The state court found that presenting evidence of mental impairment would have been "ineffective." Appendix A at 7. Petitioner fails to demonstrate by clear and convincing evidence that the state court's finding is unreasonable. 28 U.S.C. § 2254(e). Given the double-edged nature of this evidence, the overwhelming evidence of guilt and the brutality discussed above, the Court finds that Vasquez fails to demonstrate a reasonable probability that the mitigating evidence would have altered the jury's balancing of aggravating and mitigating factors. The State Court's rejection of this claim was neither "contrary to" nor an "unreasonable application of" clearly established federal law. 28 U.S.C. § 2254(d)(1).

C. Appellate Counsel's Conflict of Interest

Finally, Vasquez argues that he received ineffective assistance of appellate counsel due to a conflict of interest. Attorney Grant Jones represented Vasquez in his direct appeal, while he represented the State of Texas in two capital postconviction cases under appointment as a special prosecutor for Nueces County.

A defendant is constitutionally entitled to effective assistance of appellate counsel when he has a right to appeal under State law." Evitts v. Lucey, 105 S.Ct. 830, 835-36 (1985). The Strickland two-prong standard applies to claims of ineffective assistance of appellate counsel. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992). To demonstrate ineffective assistance, petitioner must demonstrate "that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 100 S.Ct. 1708, 1718 (1980) (finding effective assistance where attorneys representing multiple defendants presented a consistent innocence defense for each, causing no actual conflict).

There is apparently no Supreme Court or Fifth Circuit precedent factually similar to this case. Vasquez cites a single New York State decision in support of his claim that the representation presents an actual conflict of interest. People v. Cooper, 156 Misc.2d 483, 487, 93 N.Y.S.2d 733, 736 (Erie County 1992).³ In that case, the defendant's counsel simultaneously served as a part-time prosecutor in the county where defendant was prosecuted. The County Court found an "obvious and actual conflict of interest" and also emphasized the "appearance of impropriety." Id. at 487-88. However, the decision turned largely on ethical rules and opinions of the New York State Bar Association Professional Ethics Committee. Id. Furthermore, the attorney in Cooper, served as a part-time prosecutor for the County, a role that suggests an ongoing relationship with the prosecutor's office. Mr. Jones, on the other hand, served as a special prosecutor, which is an appointment made only for a particular case. State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex.Crim.App. 1993) (Clinton, J., concurring).

3 Vasquez's additional citations are factually inapposite. Cuyler v. Sullivan, 100 S.Ct. 1708 (1980) (representation of multiple defendants); Holloway v. Arkansas, 98 S.Ct. 1173 (1978) (same); Castillo v. Estelle, 504 F.2d 1243 (5^th Cir. 1974) (simultaneous representation of defendant and key state witness); Zuck v. Alabama, 588 F.2d 436 (5^th Cir. 1979) (simultaneous representation of prosecutor in an unrelated civil matter).

The Court finds more persuasive the opinion of the Seventh Circuit in Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). In Small, the petitioner argued that he received ineffective assistance of trial counsel because his court-appointed lawyer also served as a special prosecutor in an unrelated case. The Seventh Circuit found no actual conflict of interest:

[The petition] contains no suggestion that his attorney "actively represented conflicting interests." All it alleges is that his attorney served as a special prosecutor in an unrelated murder. More is necessary. . . . [W]e do not find a conflict of interest where there exist separate and distinct criminal cases involving neither the same parties nor facts.

Id. at 417. Like the attorney in Small, Jones undertook "separate and distinct criminal cases involving neither the same parties nor facts." Therefore, Vasquez fails to demonstrate any actual conflict of interest.

Vasquez fails to prove an actual conflict, and he also fails to demonstrate that any conflict adversely affected his lawyer's performance. Id. ("Although prejudice is presumed when counsel is burdened by an actual conflict of interest, it may be presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance."). Vasquez does not assert that had he known of Mr. Jones's conflict he would have requested different counsel. Further, while petitioner claims a "pro-state bias" in the appellate briefing and argues that several "straw men" arguments were included, Vasquez identifies no single claim that appellate counsel neglected to raise on appeal. The State Court's rejection of this claim of ineffective assistance of counsel was neither "contrary to" nor an "unreasonable application of" clearly established federal law. 28 U.S.C. § 2254(d)(1).

III. Certificate of Appealability

Vasquez does not request a certificate of appealability ("COA"), but this Court may sua sponte determine whether he is entitled to such relief. See Alexander v. Johnson, 211 895, 898 (5th Cir. 2000) ("The statute does not require that a petitioner move for a COA; it merely states that an appeal may not be taken without a certificate of appealability having been issued.") The AEDPA dictates an issue-by-issue consideration of appealability. Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). To obtain a COA, a petitioner must "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1603-04 (2000).

This Court has carefully considered each of Vasquez's claims and finds that his claim of ineffectiveness in addressing evidence of sexual assault is foreclosed by clear precedent. This Court concludes that under such precedents, Vasquez has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Court finds, however, that reasonable jurists could reach differing conclusions on the effect of Vasquez's counsel's failure to adequately investigate his family and personal history.

Because no Fifth Circuit or Supreme Court case law addresses Vasquez's claim of ineffective assistance of appellate counsel, reasonable jurists could also disagree whether the facts give rise to an actual conflict of interest. Therefore, this Court concludes that Vasquez is entitled to a COA on his claims that he received ineffective assistance during the mitigation and appellate stages of his case.

IV. Order

For the foregoing reasons, it is ORDERED as follows:

1. Respondent Nathaniel Quarterman's Motion for Summary Judgment is GRANTED;

2. Petitioner Richard Vasquez's Petition for Writ of Habeas Corpus is DENIED; and

3. A Certificate of Appealability shall issue as to Vasquez's claim that he received ineffective assistance of counsel during the mitigation and appellate stages of his case.

The Clerk shall notify all parties and provide them with a true copy of this Order.

APPENDIX A

CAUSE NO. 98-CR-0730-E ^TH

EX PARTE § 148 DISTRICT COURT § RICHARD VASQUEZ § NUECES COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT

I. Habeas Corpus Grounds One, Two Three.

Background

1. The Court finds that the two senior attorneys representing Vasquez at trial, John Gilmore and Joseph Collina, each had extensive experience in trying criminal cases and had tried capital murder cases before, and that attorney Robert Bujanes had no prior capital murder trial experience, played a limited role, did not make trial strategy decisions, and was primarily involved with the case in order to learn from the other two attorneys. (Habeas R.R. vol. 2, pp. 211-15, vol. 3, pp. 6-13, 60-63, vol. 7, pp. 7-8, 14, 28 37).X ADOPTED. ___ REFUSED.

2. The Court finds that trial attorney Joseph Collina was assigned responsibility for the hiring and examination of witnesses concerning the technical aspects of the case. (Habeas R.R. vol. 2, pp. 215-16, vol. 3, pp. 14-15).X

ADOPTED. ___ REFUSED.

Social History

3. The Court finds that, Vasquez's trial attorneys reasonably determined that pursuing further evidence of Vasquez's social history was unnecessary to make an informed choice among possible defenses, and their failure to investigate further the negative influence that Vasquez's biological parents played in his early years resulted from a reasoned strategic judgment and not from inattention.X ADOPTED. ___ REFUSED.

4. The court finds that all of Vasquez's trial attorneys were aware of his biological parents and his family history involving drug abuse and violence, but that they made a reasonable strategic decision to portray Vasquez as coming from a good home, as far as his adoptive parents, and that it would have been inconsistent with that strategy to present evidence concerning Vasquez's exposure to drugs and violence at an early age. (Habeas R.R. vol. 2, pp. 237-41; vol. 7, pp. 22 39).X

ADOPTED. ___ REFUSED. 5. The Court finds that Vasquez's trial attorney Joseph Collina gathered sufficient information about Vasquez's social background through meetings with Vasquez and his adoptive parents, that his decision not to interview the biological parents because they could not provide additional information and would not have been good witnesses was reasonable under the circumstances, and that his decision not to hire an independent mitigation expert was reasonable because he already had sufficient mitigation evidence. (Habeas R.R. vol. 3, pp. 22, 37-38, 54-55 66).X ADOPTED. ___ REFUSED.

6. The Court finds that Vasquez's trial attorney Joseph Collina was aware that Vasquez's biological parents had an influence on him at a very young age, but made a reasonable strategic decision to portray Vasquez as coming from a good home without adverse influences and to bring out all that his adoptive parents had done for him, and not to say much about the biological parents at trial for fear of "throw[ing] mud" at the good impression Vasquez's adoptive family made. (Habeas R.R. vol. 3, pp. 77-80).X

ADOPTED. ___ REFUSED.

Cognitive and Learning Disabilities

7. The Court finds that Vasquez's trial attorneys reasonably hired and relied upon the advice of psychiatrist Dr. Carlos Estrada, as their expert to examine Vasquez's mental status, explore mitigating circumstances, and determine what psychological testing needed to be done. (Habeas R.R. vol. 2, pp. 221, 246, vol. 3, pp. 32-33, vol. 7, pp. 57-58).X ADOPTED. ___ REFUSED.

8. The Court finds that Vasquez's trial attorneys reasonably attempted to show, by Dr. Estrada's testimony at the punishment phase of trial, that Vasquez would not be a continuing danger to society if he got off drugs. (Habeas R.R. vol. 3, pp. 69-70)X

ADOPTED. ___ REFUSED. 9. The Court finds that Vasquez's trial attorneys complied with Dr. Estrada's suggestion that Dr. Bonikowski perform a neurological study on Vasquez's brain to determine if it had been damaged by a prior automobile accident, but that Dr. Bonikowski's further recommendation for a QEEG and neuropsychological testing was for treatment of Vasquez's headaches and was irrelevant to possible mitigation defenses or to explain his violent behavior, such that it was reasonable for Vasquez's trial attorneys not to seek further testing. (Habeas R.R. vol. 3, pp. 34, 4-44, 83, vol. 7, pp. 59 92-93)X ADOPTED. ___ REFUSED.

10. The Court finds that Vasquez's trial attorneys reasonably relied upon Dr. Estrada's conclusions that he had sufficient background and medical information to perform a proper forensic examination of Vasquez, that Vasquez's additions to heroin and cocaine and his heavy intoxication shortly before the murder explained his behavior at the time, and that any neurological impairment would have been masked by that heavy state of intoxication and made irrelevant. (Habeas R.R. vol. 7, pp. 58, 60 91-92).X

ADOPTED. ___ REFUSED. 11. The Court finds that known evidence concerning Vasquez's mental status, as gathered and reported by Dr. Estrada, would not have led a reasonable attorney to investigate further, and that Vasquez's trial attorneys reasonably determined that pursuing further evidence of brain dysfunction was unnecessary to make an informed choice among possible defenses.X ADOPTED. ___ REFUSED.

12. The Court finds unpersuasive Dr. Ricardo Weinstein's conclusion that additional neuropsychological tests should have been done on Vasquez, considering Dr. Estrada's testimony, the acknowledged lack of a general consensus regarding the usefulness of a QEEG to measure brain dysfunction, and Dr. Weinstein's own admissions that Vasquez's anti-social behavior was very closely related to his drug addiction and that Vasquez's craving for drugs was a major component that caused him to lose control at the time of the murder. (Habeas R.R. vol. 4, pp. 120-22, 125-27, 147 167).X

ADOPTED. ___ REFUSED. 13. The Court finds that Vasquez's trial attorneys exercised reasonable trial strategy in declining to portray him as learning disabled, for fear that this might lead the jury to believe that he could not control himself and would be a future danger. (Habeas R.R. vol. 3, p. 81).X ADOPTED. ___ REFUSED. 14. The Court finds that Vasquez chose to testify at trial and was coherent and able to understand and intelligently answer the questions posed to him on direct and cross-examination, such that presenting other evidence of brain dysfunction would have been ineffective and appeared disingenuous. (Trial R.R. vol. 37, pp. 66-147).X ADOPTED. ___ REFUSED.

Straddle Injury Evidence

15. The Court finds that Vasquez's trial attorneys reasonably relied upon the testimony of the Nueces County Medical Examiner, Dr. Lloyd White, that the victim's injuries were as consistent with a straddle injury as with sexual penetration, and that they made a reasonable decision not to bolster that opinion by calling a second medical expert who would, at most, have testified to the same opinion as Dr. White. (Habeas R.R. vol. 3, pp. 16-18, 30-32 72-73).X ADOPTED. ___ REFUSED. 16. The Court finds that Vasquez failed to offer any evidence to show that Dr. Randall Frost's testimony would have aided the defense in any way in its attempt to show that the victim's injuries were consistent with a straddle injury.X ADOPTED. ___ REFUSED. 17. The Court finds that Vasquez failed to offer any evidence from family members to show that they could have testified to anything other than speculative suggestions that the victim suffered a straddle injury rather than sexual assault, or that any of Vasquez's family members observed such an injury or heard the victim cry or complain of such an injury.X ADOPTED. ___ REFUSED.

DNA Evidence

18. The Court finds that Vasquez admitted in his testimony at trial that he repeatedly hit the victim, that the medical evidence at trial showed the extent of the victim's injuries and resulting death, and that the DNA evidence presented by the State merely showed the presence of blood which matched both the victim and Vasquez on various items of evidence recovered from the crime scene.X ADOPTED. ___ REFUSED. 19. The Court finds that Vasquez's trial attorneys reasonably decided not to challenge the State's DNA evidence or hire an independent DNA expert because the DNA evidence offered by the State was generally neutral and did not tend to prove anything more than Vasquez's own admission that he had beaten the victim to death and that both he and the victim were bleeding at the time, and because the DNA evidence may even have helped the defense by showing that none of Vasquez's semen was found in the victim or on her clothes. (Habeas R.R. vol. 2, p. 247, vol. 3, pp. 48-50 85-87).X ADOPTED. ___ REFUSED.

Representation as a Whole

20. The Court finds that, Vasquez's trial attorneys performed reasonably under the prevailing professional norms and from their perspective at the time, and that they made efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that might have been introduced by the prosecutor.X ADOPTED. ___ REFUSED. 21. The Court finds that Vasquez's trial attorneys forcefully and effectively represented their client at trial, cross-examining the State's witnesses, calling appropriate witnesses for the defense, and arguing for the jury to spare Vasquez's life, based on the sound trial strategy of emphasizing his having come from a good home but fallen prey to drugs and a tragic accident during his teen years.X ADOPTED. ___ REFUSED.

22. The Court finds that Vasquez's trial attorneys exercised a reasonable trial strategy at the guilt-innocence phase of trial by attempting to show that Vasquez did not intend to kill the victim; and a reasonable trial strategy at the punishment phase of trial by continuing to rely on residual doubt concerning Vasquez's intent to kill, by emphasizing Vasquez's own victimization by drug dealers, and by attempting to show his potential for rehabilitation and that he would not be dangerous if he got off drugs, (Habeas R.R. vol. 3, pp. 68-71).X

ADOPTED. ___ REFUSED.

Prejudicial Error

23. The Court finds that, weighing the evidence in aggravation against the totality of available mitigating evidence, any errors or omissions committed by Vasquez's attorneys at trial did not create a reasonable probability that, but for the errors, the result of the proceeding would have been different.X ADOPTED. ___ REFUSED.

24. The Court finds that, had the jury been confronted with the mitigating evidence put forward by Vasquez in connection with the present writ proceeding, there is no reasonable probability that it would have resulted in a different sentence.X

ADOPTED. ___ REFUSED.

II. Habeas Corpus Ground Four.

Competence to Stand Trial

25. The Court finds that there is nothing in the record of trial to suggest that Vasquez was incompetent to stand trial, that Vasquez has provided no evidence at the writ hearing to show that language difficulties and low academic performance rendered him incompetent to stand trial, and that Vasquez has provided only unsubstantiated speculation that he did not understand the plea offer made by the State.X ADOPTED. ___ REFUSED.

26. The Court finds credible testimony by attorneys John Gilmore and Joseph Collina that Vasquez understood the nature of the plea agreement, and specifically that a guilty plea would have nothing to do with the uncharged sexual assault allegations, but that he refused to plead guilty because he insisted that he had not intentionally killed the victim. (Habeas R.R. vol. 2, pp. 229-30, 242-44, vol. 3, pp. 59-68, 76-77).X

ADOPTED. ___ REFUSED.

Effective Assistance of Trial Counsel

27. The Court finds that Vasquez's trial attorneys reasonably explained the State's plea offer to him, assured him that a guilty plea would have nothing to do with the uncharged sexual assault allegations, and reasonably believed that he understood this. (Habeas R.R. vol. 3, pp. 59, 76-77).X ADOPTED. ___ REFUSED.

III. Habeas Corpus Grounds Five Six.

Effective Assistance of Appellate Counsel

28. The Court finds that the fact that the attorney appointed to represent Vasquez on the collateral appeal was acting as counsel for the State of Texas in other matters at the same time did not create a conflict of interest rendering him ineffective, and that Vasquez has entirely failed to show how his appellate attorney's appointment as special prosecutor on unrelated writs and appeals in any way created an actual conflict of interest with his representation of Vasquez on his appeal.X ADOPTED. ___ REFUSED.

IV. Habeas Corpus Ground Seven.

Waiver

29. The Court finds that Vasquez has waived his challenge to the voluntariness of his statement to the police by failing to present any argument under this issue.X ADOPTED. ___ REFUSED.

Statement was Not Involuntary

30. The Court finds that nothing in Vasquez's testimony at trial showed that his statement to the police was involuntary or coerced, that Vasquez testified at trial that he signed his name to the end of his statement and initialed each of the warnings, that the police read the warnings to him, and that he told them the statement was all right. (Trial R.R. vol. 37, pp. 141-46)X ADOPTED. ___ REFUSED.

V. Habeas Corpus Ground Eight.

Complaint Not Reviewable by Writ of Habeas Corpus

31. The Court finds that Vasquez could have, but failed to raise on appeal any complaint that his constitutional rights were violated by his being shackled at trial.X ADOPTED. ___ REFUSED.

Vasquez was Not Tried in Shackles

32. The Court finds that Vasquez failed to show that he was shackled throughout his trial and his restraints were exposed to the jury, that the State has proven through an affidavit from the prosecutor that Vasquez's shackles were carefully hidden from the view of the jury during the entire trial, and from a juror affidavit that a pre-trial encounter with Vasquez in handcuffs had no effect on the jury's deliberations.X ADOPTED. ___ REFUSED.

VI. Habeas Corpus Ground Nine.

No Constitutional Requirement for Life Without Parole Option

33. The Court finds that Vasquez was sentenced to death under the Texas Death Penalty Statute, which fails to give the jury an option of life without parole.X ADOPTED. ___ REFUSED.

VII. Habeas Corpus Ground Ten.

Complaint Not Reviewable by Writ of Habeas Corpus

34. The Court finds that, by his first and second issues presented in his direct appeal, Vasquez raised constitutional challenges under the Eighth and Fourteenth Amendments to the trial court's failure to charge the jury on the application of parole law to a life sentence.X ADOPTED. ___ REFUSED.

No Constitutional Requirement for Instruction on Eligibility for Parole

35. The Court finds that, under the law applicable to the present offense committed in 1998, the jury in the present case was not instructed on the law regarding eligibility for parole.X ADOPTED. ___ REFUSED.

VIII. Habeas Corpus Ground Eleven.

Complaint Not Reviewable by Writ of Habeas Corpus

36. The Court finds that, by his third issue presented in his direct appeal, Vasquez challenged the sufficiency of the evidence to support the jury's finding of future dangerousness.X ADOPTED. ___ REFUSED.

Sufficient Evidence of Future Dangerousness

37. The Court finds that evidence of future dangerousness in the present case included the circumstances of the present offense and Vasquez's apparent state of mind when he vented his frustrations on a four-year-old girl who was less than 3½ feet tall, and, within a two hour period, gave the victim a potentially lethal dose of cocaine, severely sexually assaulted her, and beat her to the point that she quit breathing.X ADOPTED. ___ REFUSED.

Death Sentence Not Arbitrary and Capricious Punishment

38. The Court finds that Vasquez has failed to argue or cite authority as to specifically how his death sentence amounts to arbitrary and capricious punishment under the Eighth AmendmentX ADOPTED. ___ REFUSED.

IX. Habeas Corpus Ground Twelve.

Complaint Not Reviewable by Writ of Habeas Corpus

39. The Court finds that Vasquez could have, but failed to raise on appeal any complaint that his constitutional rights were violated by the trial court's granting a challenge for cause as to a prospective juror who was opposed to the death penalty.X ADOPTED. ___ REFUSED.

Juror Properly Struck for Cause

40. The Court finds that Prospective Juror Brenda Lepp testified on voir dire that she did not believe in the death penalty, could not impose the death penalty under any circumstances, and would vote in such a way as to impose life in prison over death in every circumstance. (Trial R.R. vol. 13, pp. 42-45).X ADOPTED. ___ REFUSED.

X. Habeas Corpus Ground Thirteen.

Complaint Not Reviewable by Writ of Habeas Corpus

41. The Court finds that Vasquez could have, but failed to raise on appeal any complaint about the trial court's removal of a qualified juror from the panel for personal reasons.X ADOPTED. ___ REFUSED.

Juror Properly Excused for Substantial Hardship

42. The Court finds that Prospective Juror Johnnie Mae Wesson stated that she had travel plans close to the time of trial and cancellation would cause her to lose money on a non-refundable airline ticket, as well as disrupt the travel plans for other members of her family and their attempt to plan a family vacation. (Trial R.R. vol. 17, pp. 20-26, 190-93).X ADOPTED. ___ REFUSED.

CONCLUSIONS OF LAW

I. Habeas Corpus Grounds One, Two Three.

Social History

1. Vasquez's trial attorneys adequately investigated mitigating evidence concerning his social history, but exercised sound trial strategy in declining to present such evidence at trial, since it could have prejudiced his case on punishment issues. ___ ADOPTED. ___ REFUSED.

Cognitive and Learning Disabilities

2. Vasquez's trial attorneys adequately investigated mitigating evidence concerning his cognitive and learning disabilities, but exercised sound trial strategy in declining to present such evidence at trial, since it could have prejudiced his case on punishment issues. ___ ADOPTED. ___ REFUSED.

Straddle Injury Evidence

3. Vasquez's trial attorneys adequately investigated the State's evidence suggesting that he sexually assaulted the victim. ___ ADOPTED. ___ REFUSED.

DNA Evidence

4. Vasquez's trial attorneys exercised sound trial strategy in failing to challenge the DNA evidence presented at trial.X ADOPTED. ___ REFUSED.

Representation as a Whole

5. Vasquez received effective assistance of counsel at trial.X ADOPTED. ___ REFUSED. 6. Any errors or omissions committed by Vasquez's attorneys at trial did not create a reasonable probability that, but for the errors, the result of the proceeding would have been different.X ADOPTED. ___ REFUSED.

II. Habeas Corpus Ground Four.

Multifarious Briefing

7. Vasquez has used a single issue to raise multiple arguments which amounts to inadequate "multifarious" briefing, presents nothing for review, and should be disregarded as procedurally barred.X ADOPTED. ___ REFUSED.

Competence to Stand Trial

8. Vasquez was not incompetent to stand trial.X ADOPTED. ___ REFUSED.

Effective Assistance of Trial Counsel

9. Vasquez received effective assistance of counsel with regard to explanation of the State's plea offer.X ADOPTED. ___ REFUSED. 10. No error by Vasquez's trial attorneys in explaining the State's plea offer prejudiced Vasquez.X ADOPTED. ___ REFUSED.

III. Habeas Corpus Grounds Five Six.

Effective Assistance of Appellate Counsel

11. Vasquez received effective assistance of appellate counsel.X ADOPTED. ___ REFUSED.

IV. Habeas Corpus Ground Seven.

Waiver

12. Vasquez is procedurally barred from raising his complaint to the voluntariness of his statement because he failed to present argument.X ADOPTED. ___ REFUSED.

Statement was Not Involuntary

13. Nothing in the record shows that Vasquez's statement was involuntary.X ADOPTED. ___ REFUSED.

V. Habeas Corpus Ground Eight.

Complaint Not Reviewable by Writ of Habeas Corpus

14. Because Vasquez could have, but failed to raise on appeal any complaint that his constitutional rights were violated by his being shackled at trial, he may not raise this complaint by the present petition for writ of habeas corpus.X ADOPTED. ___ REFUSED.

Vasquez was Not Tried in Shackles

15. One Juror's momentary, inadvertent, and fortuitous pre-trial encounter with Vasquez in handcuffs was not erroneous, nor would it, if error, have contributed to his conviction or punishment.X ADOPTED. ___ REFUSED.

VI. Habeas Corpus Ground Nine.

No Constitutional Requirement for Life Without Parole Option

16. Vasquez's death sentence does not amount to cruel and unusual punishment under the Eighth and Fourteenth Amendments merely because the Texas Death Penalty Statute fails to give the jury an option of life without parole.X ADOPTED. ___ REFUSED.

VII. Habeas Corpus Ground Ten.

Complaint Not Reviewable by Writ of Habeas Corpus

17. Vasquez may not raise by petition for writ of habeas corpus the same constitutional challenges to the trial court's failure to charge the jury on the application of parole law to a life sentence that could have been, and were, raised in his direct appeal; those complaints have been raised and rejected.X ADOPTED. ___ REFUSED.

No Constitutional Requirement for Instruction on Eligibility for Parole

18. Nothing in the Eighth or Fourteenth Amendments requires the trial court to instruct the jury on parole law under the Texas capital sentencing scheme. Therefore, Texas' prohibition against informing the jury about when Vasquez would have been eligible for parole under a life sentence did not violate the due process, cruel and unusual punishment, or equal protection clauses of the Eighth and Fourteenth Amendments.X ADOPTED. ___ REFUSED.

VIII. Habeas Corpus Ground Eleven.

Complaint Not Reviewable by Writ of Habeas Corpus

19. Vasquez may not raise by petition for writ of habeas corpus the same challenge to the sufficiency of the evidence to support the jury's finding of future dangerousness that could have been, and was, raised in his direct appeal; that complaint has been raised and rejected.X ADOPTED. ___ REFUSED.

Sufficient Evidence of Future Dangerousness

20. Vasquez's challenge to the sufficiency of the evidence may not be raised by post conviction collateral attack.X ADOPTED. ___ REFUSED. 21. The evidence was sufficient to support the jury's finding on future dangerousness.X ADOPTED. ___ REFUSED.

Death Sentence Not Arbitrary and Capricious Punishment

22. By failing to argue or cite authority as to specifically how his death sentence amounts to arbitrary and capricious punishment under the Eighth Amendment, Vasquez has waived that challenge and it is procedurally barred.X ADOPTED. ___ REFUSED.

23. Vasquez's death sentence did not amount to an arbitrary and capricious punishment in violation of the Eighth Amendment.X

ADOPTED. ___ REFUSED.

IX. Habeas Corpus Ground Twelve.

Complaint Not Reviewable by Writ of Habeas Corpus

24. Because Vasquez could have, but failed to raise on appeal any complaint that his constitutional rights were violated by the trial court's granting a challenge for cause as to a prospective juror who was opposed to the death penalty, he may not raise this complaint by the present petition for writ of habeas corpus.X ADOPTED. ___ REFUSED.

Juror Properly Struck for Cause

25. Vasquez's constitutional rights were not violated when the trial court properly struck for cause Prospective Juror Brenda Lepp because of her inability to fairly consider the punishment issues in a death penalty case.X ADOPTED. ___ REFUSED.

X. Habeas Corpus Ground Thirteen.

Complaint Not Reviewable by Writ of Habeas Corpus

26. Because Vasquez could have, but failed to raise on appeal any complaint about the trial court's removal of a qualified juror from the panel for personal reasons, he may not raise this complaint by the present petition for writ of habeas corpus.X ADOPTED. ___ REFUSED.

Juror Properly Excused for Substantial Hardship

27. The trial court properly excused Prospective Juror Wesson due to the substantial hardship that juror duty would cause her family with regard to their pre-arranged, pre-paid vacation plans.X ADOPTED. ___ REFUSED.

Sixth Amendment Rights Not Violated

28. Vasquez's Sixth Amendment right to an impartial jury was not violated by the trial court's removal of a qualified juror from the panel for personal reasons.X ADOPTED. ___ REFUSED.

29. The exclusion of a prospective juror, even if improper on statutory grounds which do not involve jurisdictional defects or fundamental constitutional considerations, may not be considered by petition for writ of habeas corpus.X

ADOPTED. ___ REFUSED. BY THE FOLLOWING SIGNATURE THE TRIAL COURT ADOPTS THE STATE'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AS FOLLOWS:

X ALL FINDINGS AND CONCLUSIONS ADOPTED.

___ FINDINGS AND CONCLUSIONS ADOPTED AS MARKED ABOVE.

JUDGE PRESIDING

RECOMMENDATION

Based on the above findings of fact and conclusions of law, the Court recommends that all relief requested in the present application for writ of habeas corpus be denied.

SIGNED AND ENTERED on this the 19 day of May, 2004.

JUDGE PRESIDING

APPENDIX B American Bar Association Guidelines for the Appointment and Performance of Counsel In Death Penalty Cases 1989 (Note: This version has been superceded by a February, 2003 revision) INTRODUCTION

At its 1989 Midyear Meeting, the American Bar Association House of Delegates adopted Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. These Guidelines amplify previously adopted Association positions on effective assistance of counsel in capital cases and the need for adequate compensation and support and provide a concrete procedure for the appointment of attorneys with appropriate experience and training to represent defendants in capital cases. In addition, they enumerate the minimal resources and practices necessary to provide effective assistance of counsel.

Some national standards have been written for appointment of counsel for eligible defendants generally; general standards for defense counsel have been established; and specific Performance Guidelines for Criminal Defense Representation exist in draft form. While some local standards may exist for capital representation, national guidelines on the assignment and performance of counsel in capital cases did not exist prior to these Guidelines.

Experience has demonstrated that capital trials and appeals are extremely specialized and demanding and that the appointment of unqualified, inexperienced counsel can be very costly in terms of delay and expense. These Guidelines will greatly assist jurisdictions planning for the handling of capital cases in a manner that does not clog their courts, while assuring effective assistance of counsel.

Background

With initial support from the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID), the National Legal Aid and Defender Association (NLADA) developed, over the course of several years, Standards for the Appointment and Performance of Counsel in Death Penalty Cases.

In February 1988, NLADA referred the Standards to SCLAID, which reviewed them and circulated them to appropriate ABA sections and committees. SCLAID incorporated the only substantive concerns expressed (by the Criminal Justice Section) and changed the nomenclature to "Guidelines" as more appropriate than "standards."

The Sections of Criminal Justice and of Litigation joined SCLAID in sponsoring the Guidelines for ABA adoption. The Guidelines were approved by the ABA's House of Delegates without change; however, the accompanying resolution recommending adoption by entities providing counsel in death penalty cases was amended to allow for such exceptions to the Guidelines as may be appropriate in the military.

Guidelines

The Guidelines address eligibility, training, support services, trial preparation, the sentencing phase and appeals. Each black letter guideline is explained by a commentary, with reference to supporting authorities. "Should" is used throughout as a mandatory term and refers to activities which are minimum requirements.

GUIDELINE 11.4.1 INVESTIGATION

Charging Documents The Accused Potential Witnesses: The Police and Prosecution Physical Evidence The Scene Expert Assistance

A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously. B. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt. C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. D. Sources of investigative information may include the following: 1. : Copies of all charging documents in the case should be obtained and examined in the context of the applicable statutes and precedents, to identify (inter alia): A. the elements of the charged offense(s), including the element(s) alleged to make the death penalty applicable; B. the defenses, ordinary and affirmative, that may be available to the substantive charge and to the applicability of the death penalty; C. any issues, constitutional or otherwise, (such as statutes of limitations or double Jeopardy) which can be raised to attack the charging documents. 2. : An interview of the client should be conducted within 24 hours of counsel's entry into the case, unless there is a good reason for counsel to postpone this interview. In that event, the interview should be conducted as soon as possible after counsel's appointment. As soon as is appropriate, counsel should cover A-E below (if this is not possible during the initial interview, these steps should be accomplished as soon as possible thereafter): A. seek information concerning the incident or events giving rise to the charge(s), and any improper police investigative practice or prosecutorial conduct which affects the client's rights; B. explore the existence of other potential sources of information relating to the offense, the client's mental state, and the presence or absence of any aggravating factors under the applicable death penalty statute and any mitigating factors; C. collect information relevant to the sentencing phase of trial including, but not limited to: medical history, (mental and physical illness or injury of alcohol and drug use, birth trauma and developmental delays); educational history (achievement, performance and behavior) special educational needs including cognitive limitations and learning disabilities); military history (type and length of service, conduct, special training); employment and training history (including skills and performance, and barriers to employability); family and social history (including physical, sexual or emotional abuse); prior adult and Juvenile record; prior correctional experience (including conduct or supervision and in the institution/education or training/clinical services); and religious and cultural influences; D. seek necessary releases for securing confidential records relating to any of the relevant histories; E. Obtain names of collateral persons or sources to verify, corroborate, explain and expand upon information obtained in (c) above. 3. Counsel should consider interviewing potential witnesses, including: A. eyewitnesses or other witnesses having purported knowledge of events surrounding the offense itself; B. witnesses familiar with aspects of the client's life history that might affect the likelihood that the client committed the charged offense(s), possible mitigating reasons for the offense(s), and/or other mitigating evidence to show why the client should not be sentenced to death; C. members of the victim's family opposed to having the client killed. Counsel should attempt to conduct interviews of potential witnesses in the presence of a third person who will be available, if necessary, to testify as a defense witness at trial. Alternatively, counsel should have an investigator or mitigation specialist conduct the interviews. 4. : Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports. Where necessary, counsel should pursue such efforts through formal and informal discovery unless a sound tactical reason exists for not doing so. 5. : Where appropriate, counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant to the offense or sentencing. 6. : Where appropriate, counsel should attempt to view the scene of the alleged offense. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g. weather, time of day, and lighting conditions). 7. : Counsel should secure the assistance of experts where it is necessary or appropriate for: A. preparation of the defense; B. adequate understanding of the prosecution's case; C. rebuttal of any portion of the prosecution's case at the guilt/innocence phase or the sentencing phase of the trial; D. presentation of mitigation. Experts assisting in investigation and other preparation of the defense should be independent and their work product should be confidential to the extent allowed by law. Counsel and support staff should use all available avenues including signed releases, subpoenas, and Freedom of Information Acts, to obtain all necessary information.