Carlos Trevino v. Lorie Davis, Director
2016 U.S. App. LEXIS 12745
| 5th Cir. | 2016Background
- Carlos Trevino was convicted (1996) of capital murder; at sentencing his trial counsel presented only one brief mitigation witness (his aunt), and the jury sentenced him to death.
- Post-conviction state habeas counsel did not raise a Wiggins-style claim that trial counsel failed adequately to investigate and present mitigating evidence (including possible Fetal Alcohol Spectrum Disorder (FASD)).
- Federal habeas counsel later raised the ineffective-assistance claim, supported by a 2004 psychological report diagnosing characteristics consistent with Fetal Alcohol Effects (FAE/FASD) and identifying cognitive and adaptive deficits.
- The district court dismissed Trevino’s second amended §2254 petition on the pleadings, holding (1) Trevino failed to show his initial state habeas counsel was ineffective under Martinez/Trevino to excuse procedural default, and (2) alternatively, the new mitigation evidence was “double-edged” and not prejudicial under Strickland/Wiggins.
- The Fifth Circuit grants a certificate of appealability in part: it holds reasonable jurists would agree the district court erred in dismissing claims relating to potential FASD evidence (procedural-default cause, deficient performance, and prejudice), but denies COA as to additional proposed character-witness testimony and denial of an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument (Trevino) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Martinez/Trevino excuse procedural default of ineffective-assistance Wiggins claim | State habeas counsel was ineffective for failing to investigate/raise trial counsel’s failure to investigate; minimal trial mitigation would have put habeas counsel on notice | State argued the new mitigating evidence was not reasonably available to initial state habeas counsel, so Martinez/Trevino do not apply | COA granted: reasonable jurists would agree district court erred; Trevino sufficiently pleaded cause to excuse procedural default on FASD claim |
| Whether trial counsel’s mitigation investigation was constitutionally deficient (Strickland performance) | Trial counsel conducted an abysmal mitigation investigation (only one witness, did not follow obvious leads, did not use mitigation experts) | State contends counsel was not wholly inattentive, had no leads about mother’s prenatal alcohol use, and resource/practice norms then made extensive mitigation work uncommon | COA granted for FASD theory: reasonable jurists would agree district court erred in dismissing on performance grounds as to FASD evidence; debate but court finds error |
| Whether failure to investigate/introduce FASD and other mitigation prejudiced outcome (Strickland prejudice) | Expert report and records show FASD-related deficits that could explain lack of remorse and impugn future-dangerousness finding; reasonable probability at least one juror would vote differently | State emphasizes heinous crime, strong aggravating evidence, and that much proposed testimony is double-edged and would bolster future-dangerousness finding | COA granted for FASD prejudice: reasonable jurists would agree the district court prematurely dismissed FASD claim; not granted for non-FASD character witnesses (those are double-edged and no debate) |
| Whether district court erred by denying evidentiary hearing after authorizing investigation and experts | Trevino requested hearing to develop FASD lay and expert proof; district court indicated later hearing would occur | State argued dismissal on pleadings appropriate where facts not sufficiently alleged; district court has discretion | COA denied on hearing issue: no reasonable jurists would debate that the district court had discretion to decide on pleadings and decline an evidentiary hearing |
Key Cases Cited
- Wiggins v. Smith, 539 U.S. 510 (2003) (counsel’s failure to investigate and present mitigating evidence can constitute ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance test: performance and prejudice)
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow equitable exception allowing cause to excuse procedural default where initial-review state habeas counsel was ineffective)
- Trevino v. Thaler, 569 U.S. 413 (2013) (applies Martinez to Texas’ habeas scheme)
- Coleman v. Thompson, 501 U.S. 722 (1991) (procedural default doctrine)
- Burger v. Kemp, 483 U.S. 776 (1987) (double-edged mitigation evidence can justify strategic choice not to present it)
- Darden v. Wainwright, 477 U.S. 168 (1986) (extensive investigation may still justify opting for limited mitigation when alternative evidence allows damaging rebuttal)