Raymond DeLeon Martinez was
convicted and sentenced to death for the 1983 murder of Herman
Chavis at a Houston bar. His conviction was reversed. In 1989,
Martinez was again convicted and sentenced to death.
A summary of
the evidence presented at trial follows. Martinez and two
accomplices entered the Long Branch Saloon in Houston at about
10:30 p.m. July 13, 1983.
The men ordered
beers and stood at the bar. A short time later, one of the
accomplices locked the front door and pulled out a revolver and
demanded that everyone get on the floor. Martinez pointed a .357
revolver in a bar patron’s face and ordered him not to move.
behind the bar, grabbed the barmaid and ordered her to give him
money from the cash register. Long Branch owner Herman Chavis
asked, “What are you trying to do?” One of the gunmen asked,
“Are you the owner?” Chavis responded, “Yes.” Martinez shoved
the barmaid to the floor and pointed his gun at Chavis. Numerous
shots were fired.
The gunmen then
fled. Chavis died of two gunshot wounds, one to the head and one
in the back.
Raymond Martinez Scheduled For Execution
Tuesday, March 21, 2006
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Raymond DeLeon Martinez,
who is scheduled to be executed after 6 p.m. Tuesday, March 28,
Martinez was convicted and sentenced to death
for the 1983 murder of Herman Chavis at a Houston bar. His
conviction was reversed. In 1989, Martinez was again convicted and
sentenced to death. A summary of the evidence presented at trial
FACTS OF THE CRIME
Raymond DeLeon Martinez and two accomplices
entered the Long Branch Saloon in Houston at about 10:30 p.m. July
13, 1983. The men ordered beers and stood at the bar. A short time
later, one of the accomplices locked the front door and pulled out
a revolver and demanded that everyone get on the floor.
Martinez pointed a .357 revolver in a bar
patron’s face and ordered him not to move. Martinez went behind
the bar, grabbed the barmaid and ordered her to give him money
from the cash register.
Long Branch owner Herman Chavis asked, “What
are you trying to do?” One of the gunmen asked, “Are you the owner?”
Chavis responded, “Yes.” Martinez shoved the barmaid to the floor
and pointed his gun at Chavis. Numerous shots were fired. The
gunmen then fled. Chavis died of two gunshot wounds, one to the
head and one in the back.
Conviction and Direct Appeal
August 24, 1983 – Martinez was indicted for the capital murder
of Herman Chavis.
March 6, 1984 – Martinez was convicted of capital murder.
March 15, 1984 – Martinez was sentenced to death.
September 21, 1988 – Martinez’s conviction was reversed on
January 11, 1989 – A petition for rehearing was denied.
October 2, 1989 – Martinez’s retrial began.
October 6, 1989 – Martinez was convicted of capital murder.
October 12, 1989 – Martinez was sentenced to death.
June 16, 1993 – Martinez’s conviction and sentence were
affirmed on direct appeal.
October 20, 1993 – A petition for rehearing was denied.
June 27, 1994 – The U.S. Supreme Court denied certiorari review.
April 24, 1997 – Martinez filed his original
application for writ of habeas corpus in the state trial court.
July 9, 1999 – The state trial court issued
findings of fact and conclusions of law recommending that habeas
relief be denied.
August 18, 1999 – The Texas Court of Criminal
Appeals denied habeas corpus relief.
September 22, 1999 – Martinez filed a petition
for a writ of habeas corpus in a Houston federal district court.
November 27, 2001 – Martinez filed an amended
petition for writ of habeas corpus in the federal district court.
November 25, 2003 – The federal district court
denied habeas corpus relief and denied Martinez’s request for a
April 27, 2004 – Martinez filed a motion for a
COA in the 5th U.S. Circuit Court of Appeals.
December 28, 2004 – The 5th Circuit Court
denied COA on Martinez’s claim that he was deprived of effective
assistance of trial counsel by his attorney’s alleged failure to
conduct an adequate investigation into his mental health
background but granted COA on Martinez’s claims that he was
deprived of effective assistance of trial counsel by counsel’s
failure to assert an insanity defense during the guilt/innocence
phase of his trial, and counsel’s failure to attempt to mitigate
his sentence by introducing evidence of an alleged neurological
impairment purportedly caused by childhood exposure to pesticides
during the punishment phase of his trial.
March 23, 2005 – The 5th Circuit Court affirmed
the District Court.
April 15, 2005 – Martinez filed a petition for
April 25, 2005 – The 5th Circuit Court denied
Martinez’s petition for rehearing.
July 25, 2005 – Martinez filed a petition for
writ of certiorari in the U.S. Supreme Court.
October 31, 2005 – The Supreme Court denied
March 24, 2005 -- The Texas Court of Criminal
Appeals issued a stay of execution.
March 28, 2006 – Martinez’s scheduled execution
At the punishment phase of Martinez’s trial the
State produced documentation of his extensive history of criminal
activity and incarceration.
On July 11, 1983, Martinez and two accomplices
robbed Dom Ramon’s Lounge in Houston at gunpoint. During that
robbery, Moses Mendez was shot to death.
On July 12, 1983, Martinez robbed Elaine’s,
another Harris County bar. During that robbery, Martinez assaulted
Ollie Skogebo, a bar patron.
On July 15, 1983, Martinez fatally shot his
sister Julia Martinez and her boyfriend Guillermo “Willie” Chavez
Also on July 15, 1983 Martinez shot a
prostitute because she left their hotel room briefly and took too
long to return. Following the first shot, the woman fell to the
ground and cried out for help, but Martinez fired several more
shots, then just left her where she fell.
Martinez invited his accomplice’s teenage
girlfriend to commit robberies with him and asked her to murder
someone for him. Martinez told her that he belonged to the Texas
Syndicate, a violent prison gang, and that to become a member one
is required to kill someone. Martinez also threatened his
accomplice’s girlfriend by putting a gun to her head.
Martinez told his sister Raquel Martinez and
his brother Johnny De Anda that he belonged to the Texas Syndicate,
and that he wanted to help the organization raise money. Martinez
had plans to manufacture methamphetamine and grow marijuana to
raise the money. He also told them that he had stabbed another
inmate while he was in jail. He informed Johnny about his escape
from prison, and that he had killed a man in California after
stealing methamphetamine from him. Martinez told Raquel that he
had committed seventeen robberies. He told Raquel that he expected
to go back to prison but “he had to do something very bad so he
could be somebody in prison.”
404 F.3d 878
Doug Dretke, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent-appellee
United States Court of Appeals, Fifth Circuit.
March 23, 2005
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Martinez was convicted of capital murder
in Texas state court and sentenced to death.
Martinez filed a petition for a writ of habeas corpus
relief under 28 U.S.C. § 2254 in the United States District Court
for the Southern District of Texas, Houston Division. The district
court denied the petition, and, sua sponte, denied
Martinez a certificate of appealability
("COA"). Martinez then filed a Request
for the Issuance of a Certificate of Appealability with this court.
For the following reasons, Martinez's
petition for COA is granted in part and denied in part. However,
his request for habeas relief is denied.
Martinez was tried and convicted in Texas
state court of capital murder for the July 13, 1983 murder of
Herman Chavis during the course of a robbery.1
SHTr. at 251.2
The following facts were presented to the jury.
On July 13,
1983, Martinez, accompanied by two other
men, entered the Long Branch Saloon owned and operated by Herman
Chavis, the victim, and his wife, Pauline Chavis Smith. XX Tr. at
212-16, 369-70, 372-73, 414, 530-31.3
Smith recognized the three men from the previous Monday and
Tuesday nights, when they came in, purchased beer, took only one
sip, and left. Id. at 214-18, 224, 253, 384. On this date,
the men ordered three Miller Lite beers and stood at the bar.
Id. at 225, 322. Soon thereafter, one of the men locked the
front door, produced a revolver, and told everyone to "hit the
floor." Id. at 226, 229, 232, 323-25, 328, 378, 381, 600.
Martinez also brandished a revolver and
threatened a patron. Id. at 600. He then grabbed the
barmaid, shoved the revolver into her ribs, and demanded the money
from the cash drawer. Id. at 226, 229, 232, 323-25, 328,
378, 381, 600. Martinez was seen reaching
into the drawer, although it was later determined that he took no
money. Id. at 396, 234. A verbal exchange between Chavis
and the men ensued, after which Martinez
pointed his gun at Chavis. Id. at 601, 605, 607, 384, 386.
Several shots were fired. Id. at 231, 386. Chavis later
died of a gunshot wound to the back of the head and a gunshot
wound through the back that lodged in his right arm. IXX Tr. at
punishment phase of Martinez's trial, the
state presented evidence of extraneous offenses committed by
Martinez, including: the July 11, 1983
robbery/murder at the Don Ramon Lounge; the July 12, 1983 robbery
at Elaine's Lounge; the July 15, 1983 murder of his own sister,
Julia, and her boyfriend, Guillermo Chavez; and the July 21, 1983
murder of prostitute Tracy Pelkey. XXIV Tr. at 43-45, 113, 145-58;
XXV Tr. at 291, 298-300, 330-38; XXVI Tr. at 528-39, 553; XXVI Tr.
The state also
presented evidence of Martinez's numerous
prior convictions, including: burglary for which he received a two-year
prison term in 1964; armed robbery and assault for which he
received a twenty-year prison term in 1969; jail-breaking for
which he received a five-year prison term in 1969; and theft for
which he received a five-year prison term in 1969. SHTr. at 252.
The state presented other aspects of Martinez's
violent criminal past through several of his family members.
Martinez's older brother, testified that
Martinez (1) belonged to a gang known as
the Texas Syndicate; (2) planned to produce drugs for the gang;
(3) stabbed a cell-mate during a former prison term; (4) escaped
from jail in 1969; (5) stole DeAnda's gun with the intent to kill
someone; (6) committed several violent robberies in the Fort Worth
area; and (7) robbed and murdered someone in California while
stealing chemicals for a crystal methamphetamine laboratory he
intended to create for the gang. His sister, Raquel
Martinez, testified that (1) the
Government delayed Martinez's 1982
release from a fourteen-year prison term because he stabbed
another inmate; (2) Martinez wanted to
produce and sell drugs for the Texas Syndicate; (3) he twice
threatened her with a gun; (4) he stole her car; (5) he attempted
to abduct her; and (6) he admitted to committing seventeen
robberies in the Fort Worth area.
The state also
presented evidence, through a clinical psychologist, that a
hypothetical person who committed the crimes allegedly perpetrated
by Martinez would be likely to commit
future criminal acts of violence, and that a person found to have
deliberately committed these acts would warrant a finding of
future dangerousness. The state also presented evidence that
although Martinez had been found not
guilty by reason of insanity and committed to Rusk State Hospital
in 1967, he was found sane on October 21, 1968 and subsequently
released. Several witnesses described Martinez
as easily provoked and hot-tempered.
Through cross-examination and the presentation of its own
witnesses, defense counsel4
elicited the following testimony. Martinez's
older brother, DeAnda, testified that their mother suffered from
mental illness, for which she was hospitalized during their
childhood. Id. at 893. He also testified that
Martinez was committed to a state mental
institution for a time. Id. at 894. Kathryn Cox, a former
prison minister with the Salvation Army, testified that
Martinez's acts constituted a self-destructive
cry for help, and that she found him eager to learn, regretful for
his past acts, and amenable to rehabilitation. She also testified
that he was suicidal. Two Harris County Sheriff's Deputies, one
former and one current, testified that they had interacted with
Martinez several dozen times without
incident. Defense counsel also elicited testimony that
Martinez suffered from malnourishment
while at Rusk State Hospital, was brutalized by prison guards
while in care of the Texas Youth Commission, and was committed for
a period of time to Wichita Falls State Mental Hospital.
examination elicited some adverse information from
Martinez's family members, including that
they were not aware that Martinez had
been diagnosed with any mental disorders during his commissions to
state mental institutions. Rather, they testified that
Martinez was very intelligent and had no
mental health problems. Martinez's sister,
Raquel Martinez, also testified that
Martinez, in fact, had committed himself
to mental institutions for the purpose of receiving free food and
defense counsel also offered into evidence records from Wichita
Falls State Mental Hospital demonstrating that:
Martinez's mother was treated at San Antonio State Hospital
for mental health issues; Martinez was a
fearful and weak child who suffered from some form of epilepsy
that went medically untreated because his father thought his "spells"
were derived from "spirits"; Martinez
began drinking at thirteen years of age; and that
Martinez was hostile, violent, lost
control and committed acts that he later regretted. The Wichita
Falls State Mental Hospital records confirmed that
Martinez's admissions to the hospital
were voluntary, and indicated that he left the facility without
permission at least twice. Additionally, records from the Texas
Department of Corrections indicated that
Martinez earned a GED while incarcerated.
On the evidence
presented, the jury found beyond a reasonable doubt that: (1)
Martinez's conduct caused the death of
Chavis, and was deliberately committed with the reasonable
expectation that Chavis's death would result; (2) there was a
probability that Martinez would commit
future criminal acts of violence that would constitute a threat to
society; and (3) Martinez's conduct in
killing Chavis was an unreasonable response to any provocation by
Chavis. The court then sentenced Martinez
Martinez unsuccessfully appealed to the
Texas Court of Criminal Appeals, Martinez
v. State, 867 S.W.2d 30 (Tex.Crim.App.1993), reh'g denied,
(October 20, 1993) and then sought certiorari from the Supreme
Court, which denied his petition. Martinez
v. Texas, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879
(1994). Martinez filed a state
application for a writ of habeas corpus on April 24, 1997,
asserting ineffective assistance of counsel. During the state
habeas proceedings, Martinez requested
funds and an evidentiary hearing to develop his claim. The state
court denied both requests. Upon review of
Martinez's habeas writ, the State's answer, affidavits of
Martinez's counsel, and the State's
proposed findings of fact and conclusions of law,5
the state habeas court denied Martinez's
writ, finding that he had not been deprived of effective
assistance of counsel. The Court of Criminal Appeals upheld the
state court's habeas determination on August 18, 1999.
Martinez filed a timely § 2254 petition
for a writ of habeas corpus in federal district court. In 2001,
Martinez filed an amended writ
incorporating the affidavits of Dr. Stephen K. Martin, a
neuropsychologist; Dr. Paula Lundberg-Love, a psychologist
specializing in psychopharmacology; and Michael W. Jewell, a
fellow inmate. On February 6, 2003, the district court held an
evidentiary hearing on the following issues: (1) whether
Martinez was mentally ill at the time of
his offense; (2) whether his trial counsel was ineffective for
failing to present an insanity defense; and (3) whether there was
cause for any procedural default of these claims.6
At the hearing, Martinez submitted
evidence that he has a family history of mental illness, was
exposed to neurotoxins in utero and through adolescence when he
picked cotton as a migrant farm worker, was physically abused by
an older brother, was physically abused by prison guards while in
care of the Texas Youth Commission, suffered untreated epileptic
seizures, and was previously adjudged not guilty by reason of
insanity for an unrelated crime in 1967. With leave of court, the
evidentiary hearing was later supplemented with depositions. On
November 25, 2003, the district court issued a memorandum and
order and entered a final judgment, denying
Martinez's petition for a writ of habeas corpus, and
denying, sua sponte, a COA.
On December 19,
2003, Martinez filed a Request for the
Issuance of a Certificate of Appealability with this court,
maintaining that he was deprived of his constitutional right to
effective assistance of counsel by his counsel's failure to: (1)
conduct an adequate investigation into his mental health
background; (2) introduce evidence of neurological impairment and
a prior adjudication of not guilty by reason of insanity as a
mitigating factor and assert an insanity defense during the guilt/innocence
phase of his trial; and (3) introduce evidence of his neurological
impairment as a mitigating factor during the punishment phase of
his trial. On December 28, 2004, we invited additional briefing on
the latter two issues.
Martinez filed his § 2254 petition for a
writ of habeas corpus after the effective date of the
Antiterrorism & Effective Death Penalty Act ("AEDPA"), April 24,
1996. Therefore, the petition is subject to the procedures imposed
by AEDPA and post-AEDPA precedent. Lindh v. Murphy, 521 U.S.
320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).
Martinez must obtain a COA before an
appeal can be taken to this court. 28 U.S.C. § 2253(c)(2). This
court may grant a COA only upon finding that
Martinez has made a substantial showing of denial of a
constitutional right. Id.; Slack v. McDaniel, 529 U.S. 473,
484, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000). To satisfy this
standard, Martinez must demonstrate that
reasonable jurists could find the district court's resolution of
his constitutional claims debatable or that reasonable jurists
could conclude that the issues presented are adequate to deserve
encouragement to proceed further. Miller-El v. Cockrell,
537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003).
"[A] COA ruling is not the occasion for a ruling on the merit of
petitioner's claim[.]" Id. at 331, 123 S.Ct. at 1036.
Instead, this court must engage in a narrow threshold "overview of
the claims in the habeas petition and a general assessment of
their merits." Id. at 336, 123 S.Ct. at 1039. Because
Martinez's case involves the death
penalty, we must resolve any doubts as to whether a COA should
issue in his favor. Hernandez v. Johnson, 213 F.3d 243, 248
Upon grant of a
COA, to obtain habeas relief Martinez
must demonstrate that the state court proceeding "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." 28 U.S.C. § 2254(d)(1). A
state court's decision falls within this rubric "if the state
court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a case
differently than the Court has on a set of materially
indistinguishable facts." Williams v. Taylor, 529 U.S. 362,
413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A state court
decision may also qualify under § 2254(d)(1) "if the state court
identifies the correct governing legal principle from this Court's
decisions but unreasonably applies that principle to the facts of
the prisoner's case." Id. at 413, 120 S.Ct. at 1523. Under
§ 2254(d)(1), we need only determine whether the state court's
application of clearly established federal law was objectively
unreasonable. Neal v. Puckett, 286 F.3d 230, 236 (5th
Cir.2002) (en banc), cert. denied, 537 U.S. 1104, 123 S.Ct.
963, 154 L.Ed.2d 772 (2003). "We have no authority to grant habeas
corpus relief simply because we conclude, in our independent
judgment, that a state supreme court's application of [federal law]
is erroneous or incorrect." Id., 286 F.3d at 236.
Martinez maintains that he was deprived
of his constitutional right to effective assistance of counsel by
his counsel's failure to: (1) conduct an adequate investigation
into his mental health background; (2) introduce evidence of
neurological impairment and a prior adjudication of not guilty by
reason of insanity as a mitigating factor and assert an insanity
defense during the guilt/innocence phase of his trial; and (3)
introduce evidence of his neurological impairment as a mitigating
factor during the punishment phase of his trial.
To prevail on
this claim, Martinez must demonstrate, as
to each issue for which he requests a COA, that: (1) his counsel's
performance was deficient; and (2) his counsel's deficient
performance prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
There is a strong presumption in favor of competency. Id.
at 689, 104 S.Ct. at 2065. Counsel's performance was deficient
only if it "fell below an objective standard of reasonableness" as
measured by "prevailing professional norms." Id. at 688,
104 S.Ct. at 2065. Review of counsel's performance "must be highly
deferential" and take into account "counsel's perspective at the
time." Id. at 689, 104 S.Ct. at 2065. We must make every
effort to avoid "the distorting effect of hindsight." Id.
Where counsel has engaged in an adequate investigation, any
strategic decision made as a result of that investigation "fall
within the wide range of objectively reasonable professional
assistance." Id."A conscious and informed decision on trial
tactics and strategy cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness." United
States v. Jones, 287 F.3d 325, 331 (5th Cir.) (quoting
Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983)), cert.
denied, 537 U.S 1018, 123 S.Ct. 549, 154 L.Ed.2d 424 (2002).
Even if we find
counsel's performance deficient, Martinez
must demonstrate prejudice. Strickland, 466 U.S. at 692,
104 S.Ct. at 2067. Martinez must
demonstrate that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id. at 694, 104 S.Ct. at 2068. In capital cases, the standard
is "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 695, 104 S.Ct. at 2069. Under Strickland's
conjunctive test, Martinez's failure to
demonstrate either deficiency or prejudice must result in the
failure of his claim. Id. at 687, 104 S.Ct. at 2065.
Martinez's request for a COA on this
issue is denied. Martinez contends that
he was denied effective assistance of counsel by virtue of his
counsel's failure to adequately investigate his mental health
background. Martinez argues that his
mental health history, his exposure to neurotoxins in utero and as
a migrant child farm worker, and his use of anti-psychotic
medications should have put counsel on notice that a more thorough
investigation into his background was required. The district court
dismissed Martinez's claims as overstated
given the evidence presented at trial regarding the mental health
background of Martinez and his mother,
and it denied a COA on this issue. We affirm that denial, and also
deny Martinez's instant request for a COA
on this claim.
a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary..."
Id. at 691, 104 S.Ct. at 2066. "A particular decision not to
investigate must be directly assessed for reasonableness in all
circumstances, applying a heavy measure of deference to counsel's
judgments." Id. A brief overview of the instant claim
evinces that counsel conducted a reasonable investigation into
Martinez's mental health history and made
reasonable decisions to forgo further investigation into certain
lines of inquiry based on their professional judgment.
In brief, Martinez's 1989 trial counsel
drew upon information gained during the 1984 prosecution to
investigate further Martinez's mental
health background, criminal past, and family history in
preparation for the 1989 trial. In this effort, counsel obtained
additional mental health records, hired an investigator, conducted
additional investigatory interviews of Martinez's
family members, and sought the assistance of a psychiatrist who
declined to help. 3 RR at 12 (1984); 37 RR at 1375-76, 1391, 1399;7
HR at 30.8
As of 1989, Martinez's family members,
bittered by the fact that he had murdered his sister and reeling
from threats he had made against some of them, were extremely
reluctant to assist in his defense. Yet, counsel was able to
extract some additional information from them, including that none
appeared to have been migrant farm workers. Because
Martinez's family members were unwilling
or unable to help at the time, the fact that counsel had little
family history with which to work was not due to ineffective
representation but to the predicament Martinez
created for himself.
nothing in counsel's personal and professional experience, in
their interactions with Martinez, or in
Martinez's conditions of confinement, put
counsel on notice that further inquiry was warranted. See
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 ("The
reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or
actions."). Both defense counsel had been migrant child farm
workers and had picked cotton, and both had extensive backgrounds
in handling mentally-ill people. Both had interacted with
Martinez, without incident or indication
of psychosis, during a 13-month period when
Martinez was not taking anti-psychotic drugs. Although
aware that Martinez had been prescribed
anti-psychotic medications, counsel's experience taught that anti-psychotic
drugs were often prescribed in prison to alleviate the anxieties
of incarceration rather than to treat a serious mental illness.
Counsel also knew that Martinez had been
diagnosed with an anxiety disorder. Thus, the decision of
Martinez's counsel to forgo further
inquiry into his mental health was not unreasonable.
Martinez's contentions, the 2003 post-reconciliation
testimony of his family members, the testimony of experts not
involved in the 1989 trial proceedings, and the production of a
prisoner-witness whom Martinez failed to
identify during the state trials in 1984 and 1989, see HR
at 200-237; HR at 200; HR at 40, 47, 55, 88-90, 170-72, are
irrelevant to counsel's perspective in 1989. Thus, this
evidence is insufficient to demonstrate that counsel failed to
conduct an adequate investigation into Martinez's
mental health background in preparation for the 1989 trial.
Upon an overview of Martinez's claim and
a general assessment of its merit, we conclude that
Martinez has failed to make a substantial
showing that the level of investigation conducted by his counsel
deprived him of his constitutional right to effective assistance
of counsel. Circuit precedent fully supports this conclusion.9
Reasonable jurists would not debate the district court's
conclusion. Therefore, a COA will not issue as to this claim.
to Introduce Mitigating Evidence During the Guilt/Innocence and
Punishment Phases of Trial
Martinez also sought COA on two other
claims: (1) that his counsel failed to introduce evidence of
Martinez's neurological impairment and
prior adjudication of not guilty by reason of insanity during the
guilt/innocence phase of his trial to support an insanity defense;
and (2) that his counsel were deficient for failing to introduce
evidence of his mental problems and neurological impairment as a
mitigating factor during the punishment phase. The district court
denied both claims on the merits and declined to issue a COA for
either. To this extent, the district court's determinations were
threshold for mitigation evidence is extremely low, and is
satisfied by evidence that "`tends logically to prove or disprove
some fact or circumstance which a fact-finder could reasonably
deem to have mitigating value.'" Tennard v. Dretke, ___ U.S.
___, 124 S.Ct. 2562, 2570, 159 L.Ed.2d 384 (2004) (quoting
McKoy v. North Carolina, 494 U.S. 433, 440-441, 110 S.Ct.
1227, 1232, 108 L.Ed.2d 369 (1990)). In capital cases, the
relevancy standard translates into "whether the evidence is of
such a character that it might serve as a basis for a sentence
less than death." Id. at 2571 (internal citation and
reasonable jurists could debate the Strickland issues
raised by counsel's failure to present an insanity defense at
trial and to argue at sentencing that Martinez
suffered from insanity and/or neurological impairments that
affected his ability to conform his conduct to the law's
requirements. Therefore, we granted COA as to each of these issues.
Nevertheless, having reviewed the merits briefs and the record in
full, we deny Martinez's request for
habeas relief, finding the state habeas court's determinations
consistent with federal law as established by the Supreme Court
and distilled by this Circuit.
claims, the state habeas court made the following findings: the
jury had before it evidence regarding Martinez's
mother's mental health as well as his own; several psychological
evaluations determined that Martinez did
not suffer from any gross psychiatric disorders or otherwise
demonstrate psychotic symptoms; Martinez's
claims of neurological impairment were legally meritless; and
Martinez's counsel investigated,
developed and presented mitigating evidence at trial. SHTr. at
255-58. Finally, the court found that even if
Martinez's counsel was deficient,
Martinez was not prejudiced given the overwhelming evidence
of his guilt for the crime of conviction, his prior convictions,
and his extraneous offenses. Id.
explained below, the state court's determination that no
constitutional error attended counsel's decisions were neither
contrary to nor did they result from an unreasonable application
of federal law. Viewing counsel's performance through a "`highly
deferential'" lens and with a view to" `the facts and resources
available to [counsel] at the time of trial,'" Williams
v. Cain, 125 F.3d 269, 276 (5th Cir.1997) (quoting Motley
v. Collins, 18 F.3d 1223, 1226 (5th Cir.1994)), it is apparent
that counsel's strategic decisions were based on their
professionally informed and competent assessment of the facts of
Martinez's case in 1989. As such, their
decisions fell "within the wide range of objectively reasonable
professional assistance," and, thus, are incapable of forming the
basis of an ineffective assistance of counsel claim. Strickland,
466 U.S. at 689, 104 S.Ct. at 2066.
direct appeal, the state habeas court found that the presumption
of insanity issue was not preserved for review because, after
counsel submitted a motion on the issue, the state trial court
never formally resolved the motion and Martinez's
counsel never renewed it. Martinez v.
State, 867 S.W.2d 30, 33 (Tex.Crim.App.1993). The state habeas
court further found that, even if the issue was properly preserved,
the subsequent jury determination of sanity in 1968 and
Martinez's consequent release were
sufficient to overcome the presumption. Id. Because federal
courts are not entitled to review state court dispositions that
rest on adequate and independent state grounds, see Lambrix v.
Singletary, 520 U.S. 518, 522-23, 117 S.Ct. 1517, 1522, 137
L.Ed.2d 771 (1997) (quoting Coleman v. Thompson, 501 U.S.
722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991)), we must
be satisfied with the state habeas court's determinations.
counsel's decision not to argue a presumption of insanity during
the guilt/innocence phase was an exercise of professional judgment
consistent with Texas law and counsel's prior experience in the
1984 trial. Although Martinez argues that
his one-and-a-half-year commitment to a state mental institution,
from 1967 through 1968, raised a presumption of insanity
assertable at his 1989 trial, under Texas law, "an adjudication of
incompetency is based on one's capacity at the time of trial."
Hall v. State, 766 S.W.2d 903, 906 (Tex.Crim.App.1989)
(holding that a "a five-year gap between [the defendant's]
breakdown and the trial with no further hospitalization ... [does
not] constitute evidence tending to show incompetency"). Here,
there was a twenty-one year gap between Martinez's
1968 release from the state mental institution and his 1989 trial.
Martinez's voluntary 1969 guilty plea to
robbery wherein a court found him legally sane, eviscerated any
presumption that may have arisen from his 1967 commitment. Even if
an assertable presumption did exist in 1989, as the state court
found, it would not have been difficult for the state to rebut the
presumption given that the 1967 verdict was vitiated in 1968 by a
subsequent jury determination of sane. Moreover, the trial
transcript indicates that counsel did raise the presumption in the
1989 trial, and that it was adequately rebutted. Finally, defense
attorney Montgomery argued the 1967 acquittal by reason of
insanity at the 1984 trial and received an adverse jury verdict
within fifteen minutes. Hard experience deterred repetition of
this course of action in the 1989 trial. HR at 43, 106-107.
Second, counsel had no obligation to assert an insanity defense
that they deemed so meritless as to constitute a fraud on the
court and otherwise adverse to Martinez's
case. See Williams, 125 F.3d at 278 (rejecting claim of
ineffective assistance where counsel declined to introduce
mitigating evidence that "would have opened the door to more
damaging evidence under cross-examination"). Moreover, counsel was
not required to assert an insanity defense where, after proper
investigation, counsel determined that a more viable, and less
fraudulent, defense was available. Cf. Profitt v. Waldron,
831 F.2d 1245, 1248-49 (5th Cir.1987). Contrary to
Martinez's contentions, circuit precedent
requiring counsel to raise an insanity defense where it is the
only viable defense is acutely distinguishable on the facts,
and, as such, inapposite here.10
In Martinez's case, potential defense
theories included failure of "the system" to intervene during
Martinez's troubled youth and insanity.
Counsel determined the former most viable and the latter
potentially fraudulent. Counsel's assessment is supported by the
record. Psychological evaluations conducted in 1979, 1986, and
1988 concluded that Martinez did not
suffer from any psychological disorders.11
Although Martinez proffered expert
testimony in 2003 that his exposure to pesticides in utero and
through adolescence could have caused a brain disorder that
rendered him unable to control his impulses, his own expert
witness, Dr. Love, admitted that such a diagnoses would be no more
than post-hoc conjecture otherwise contradicted by
Martinez's mental health history as it
stood in 1989. See Love Dep. at 148-258 (admitting that
psychiatric diagnoses are not constant, that she would only
diagnose Martinez as suffering from "periodic"
and "episodic" schizophrenia, and that she could not determine,
without allowing for a significant margin of error,
Martinez's mental condition during his
Additionally, as previously discussed, counsel had no basis in
personal experience that suggested the viability of an insanity
defense based on Martinez's exposure to
neurotoxins in the course of migrant farm work. Moreover, as
admitted by another of Martinez's expert
witnesses, Dr. Freedman, nothing in the mainstream media put
counsel on notice of such a connection. See Freedman Dep.
at 76-77 (conceding that literature existing in 1989 supporting
the theory of pesticide-induced psychosis may have been known to
the medical community, but not to the public at large).
Martinez's counsel, Ray Montgomery,
submitted an affidavit averring that: he had represented or
prosecuted hundreds of defendants who were, or claimed to be,
mentally ill; in his interactions with Martinez,
over the course of several years, Martinez
never acted in a manner demonstrative of insanity or incompetence;
Martinez's prison record and conduct were
consistent with his conclusion and that of other attorneys
representing Martinez, and
Martinez's own family members shared this
view. See SHTr. at 257 (Respondent's Original Answer,
Exhibit A, Aff. of Ray Montgomery).
Based on the
facts of Martinez's case, his counsel
determined that assertion of an insanity defense would constitute
a fraud on the court. Therefore, counsel decided to forgo an
insanity defense in the guilt/innocence phase, and instead
advanced as the primary defense theory the "failure of the system"
to intervene during Martinez's troubled
youth. This mode of defense was supported by
Martinez's criminal history and the abuse that he
purportedly suffered at the hands of detention facility personnel.
Under the facts as they existed at the time, counsel's decision
counsel's decision not to introduce evidence of neurological
impairment (i.e., organic brain damage) as mitigating evidence at
the punishment phase constituted reasonable and protected
professional judgment. As we have held, evidence of organic brain
injury presents a "double-edged" sword, and deference is accorded
to counsel's informed decision to avert harm that may befall the
defendant by not submitting evidence of this nature. Kitchens
v. Johnson, 190 F.3d 698, 703 (5th Cir.1999). "If such an
omission is based on well informed, strategic decisions, it is `well
within the range of practical choices not to be second-guessed.'"
Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.1997) (quoting
Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.1992)).
Under Texas law,
a jury in a capital case must determine "whether there is a
probability that the Defendant would commit criminal acts of
violence that would constitute a continuing threat to society."
Tex.Code of Crim. Proc. art. 37.071 § 2(b)(1) (Vernon 2004).
During the punishment phase, the state introduced expert testimony
that a hypothetical person who committed the crimes with which
Martinez was charged would warrant a
future dangerous finding. The introduction of evidence that
Martinez suffered from organic (i.e.,
permanent) brain damage, which is associated with poor impulse
control and a violent propensity, would have substantiated the
state's evidence and increased the likelihood of a future
dangerousness finding. In lieu of introducing this potentially
damaging evidence, counsel presented other mitigating evidence
during the punishment phase. On cross and direct examination,
counsel elicited testimonial evidence of
Martinez's difficult childhood, his mother's
hospitalization for mental illness, his own commission to a mental
health institution, and his benighted childhood during which he
suffered medical neglect, malnourishment, and abuse at the hands
of family members and state prison guards. Thus, counsel's
decision not to introduce evidence of organic brain damage, given
the availability of other, less damaging, mitigating evidence,
fell well within the bounds of sound trial strategy.
counsel's strategies fell below professional norms, they cannot
form the basis of a constitutional ineffective assistance of
counsel claim because there is no evidence that they prejudiced
Martinez or "permeated [his] entire trial
with obvious unfairness." United States v. Jones, 287 F.3d
325, 331 (5th Cir.), cert. denied, Jones v. United States,
537 U.S. 1018, 123 S.Ct. 549, 154 L.Ed.2d 424 (2002). In assessing
prejudice, we "must consider the totality of the evidence before
the judge or jury." Strickland, 466 U.S. at 695, 104 S.Ct.
at 2069. Here, the nature of the evidence against
Martinez advises against a prejudice
In addition to
mitigating evidence presented by the defense, the jury also had
before it evidence of Martinez's
methodical planning and execution of the crime of conviction. The
state propounded evidence that Martinez
and his accomplices "cased" Chavis's bar in preparation for the
robbery. On July 11 and July 12, 1983, Martinez
and one accomplice entered the bar, ordered a beer, drank very
little, and left. Martinez and two
accomplices returned on July 13, 1983, and shot and killed Chavis
in the process of robbing the bar. The jury also had before it
evidence of Martinez's subsequent violent
and murderous 1983 crime spree, and his numerous prior convictions
for burglary, robbery, jail-breaking, and theft. The evidence
depicted a man capable of planning and executing criminal acts and
victimizing anyone who would get in his way, which was more than
sufficient to belie any "tragic impulse" defense that
Martinez could have asserted.
In sum, even if
counsel had asserted the presumption and defense of insanity and
presented evidence of neurological impairment in mitigation during
Martinez's trial, it is highly improbable
that the outcome would have been different. Id. at 694-95,
104 S.Ct. at 2068-69.
As to his first
COA claim, failure to investigate, Martinez
failed to demonstrate that jurists of reason would debate the
district court's resolution of the issue. Therefore, we deny a COA
on this issue. As to the remaining COA claims, failure to present
an insanity defense and evidence of neurological impairment during
the guilt/innocence and punishment phases of
Martinez's trial, we find that jurists of reason could
debate the district court's resolution of these claims, and, thus,
issue a COA as to each claim. However, we conclude that
Martinez has failed to show that the
state habeas court's resolution of these claims resulted in
decisions that were contrary to, or involved an unreasonable
application of, clearly established federal law. Therefore, we
deny Martinez's request for habeas relief.
COA GRANTED IN
PART, DENIED IN PART. Habeas Relief DENIED. Judgment of the
district court is AFFIRMED.
On March 15, 1984, Martinez
was convicted for the capital murder of Herman Chavis, but the
conviction was reversed and remanded for a new trial on September
21, 1988. SHTr. at 251 (citingMartinez
v. State, 763 S.W.2d 413 (Tex.Crim.App.1988)). In 1989,
Martinez was retried, convicted, and
sentenced to death by lethal injection. Id.
"SHTr." refers to the state habeas transcript
The Roman numerals refer to the volume number of the trial
transcript, which is abbreviated "Tr."
represented by Ray Montgomery in both the 1984 and 1989 trials, as
well as J.C. Castillo in the 1989 trial
Martinez failed to
file any proposed findings of facts and conclusions of law on or
before the July 8, 1999, deadline
In furtherance of Martinez's
claims, the district court granted Martinez
an evidentiary hearing in 2003 and allowed him to present evidence
that he had not presented to the state court. This raised
exhaustion of state remedies and futility issues, but the district
court predicated its substantive ruling on the fact that the state
court's refusal to grant a hearing and funds to develop his claim
during the state habeas action constituted cause for
Martinez's procedural default. However,
the district court found that no prejudice resulted from the state
court's refusal of fundsMartinez v.
Dretke, Crim. No. H-99-3147, slip op. at 11-15 (Tex.D.C.
November 25, 2003).
The State has not objected to
the district court's mode of procedure, i.e., its conduct
of an independent evidentiary hearing, so we need not consider the
matter further. Suffice it to note that the court's procedure
remedied Martinez's complaint about the
insufficiency of state processes to allow him to develop and
present additional mental health evidence.
"RR" refers to the 1984 trial record
"HR" refers to the federal habeas court hearing record
See Clark v. Collins, 19 F.3d 959,
964-65 (5th Cir.1994) (rejecting petitioner's claim of deficient
performance where existing psychiatric evaluations confirmed
counsel's own observations of the petitioner and counsel had no
basis in fact or reason to conclude that additional psychiatric
evaluations were merited); Riley v. Dretke, 362 F.3d 302
(5th Cir.2004) (finding counsel's interactions with the petitioner,
petitioner's probation and juvenile records, conversations with
petitioner's family members sufficient to support counsel's
conclusion that petitioner was not suffering from mental illness).
Martinez's reliance onProfitt
is misplaced because that case is distinguishable from the instant
matter. In contrast to the facts in Profitt, counsel in
this case, explored the possibility of an insanity defense and
ruled it out after taking both obvious and non-obvious
investigatory measures; provided reasonable tactical bases for not
investigating the issue further and declining to assert an
insanity defense; and raised other defenses that were not only
plausible, but also supported by Martinez's
mental health and criminal record. See Profitt, 831 F.2d at
These evaluation were not admitted at trial but
were included in the trial "statement of facts" and considered as
part of the trial record by the state habeas court