David Del Toro, Jr. v. NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional…

United States Court of Appeals
Fifth Circuit
F I L E D
September 4, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40043
DAVID DEL TORO, JR.,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee
Appeals from the United States District Court
for the Eastern District of Texas
Before JONES, Chief Judge, REAVLEY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
David del Toro, Jr., appeals the denial of his habeas corpus petition al-
leging ineffective assistance of counsel. We affirm.

-- 1 of 7 --

No. 06-40043
2
I.
Del Toro was convicted in Texas state court, by guilty plea, of injury to a
child and was sentenced to seventeen years’ imprisonment. He did not directly
appeal but did unsuccessfully petition the state for habeas relief.
The conviction stemmed from del Toro’s treatment of his three-month-old
daughter Alexyah. Del Toro gave two statements to police acknowledging that
he held a blanket over her face for one to two minutes to stop her crying. When
he removed the blanket he noticed that she was having trouble breathing, so he
took her to the hospital.
He told the hospital staff that he had put Alexyah down for a nap and
went to sleep next to her. He said he was awakened by a phone call thirty min-
utes later and noticed that she was unresponsive and that her face was gray
with labored breathing; he did not mention the blanket. Alexyah was found to
have severe neurologic, cardiac, and respiratory dysfunction with an unex-
plained cause. As a result of the respiratory failure, her brain was seriously
damaged from lack of oxygen.
Despite del Toro’s untruthful explanation, the medical staff suspected
“non-accidental trauma,” as evinced by several entries in Alexyah’s medical rec-
ords. Some of the notations indicate that del Toro had another infant child who
had died under similar circumstances. One doctor noted that the circumstances
of Alexyah’s injuries and the family history were “very troubling and suggestive
of infanticide.”
After del Toro was charged, he hired attorney Dennis Jones to represent
him. Jones did not retain an expert to review Alexyah’s medical records. At the
hearing on del Toro’s petition for a new trial, Jones testified that he had hoped
to hire an expert before trial but that while he was representing del Toro he was
never in a position, from the financial standpoint of del Toro’s family, to hire an
expert. Attorney John Tatum later took over as lead counsel and represented

-- 2 of 7 --

No. 06-40043
3
del Toro for four months. Tatum testified that he had reviewed the medical rec-
ords and del Toro’s incriminating statements. He felt that he understood the
medical records and had discussed with del Toro his plan to use the records to
cross-examine the government’s expert witnesses regarding the records. Tatum
did not hire an expert to review the records and testified that del Toro never
asked him to do so.
Approximately a week before trial, Tatum negotiated a plea agreement
under which del Toro would receive a twenty-year sentence; Tatum advised del
Toro to accept the offer because of the strength of the evidence against him and
because the maximum sentence if del Toro went to trial would have been ninety-
nine years. Del Toro hired a new attorney, Edward McFarland, to give him a
second opinion. McFarland spent about ninety minutes going over the file and
reviewing the plea offer. He testified that he had offered to hire an expert to
review the records but that the family would have had to pay. Del Toro declined
to hire an expert.
McFarland also noted that, because del Toro’s other child had died under
suspiciously similar circumstances, if the plea offer were rejected the state in-
tended to exhume the child for investigative purposes. McFarland negotiated
the plea offer down to seventeen years and advised del Toro to accept it, stating
that if he turned it down McFarland thought he would be convicted and face a
sentence of at least sixty years. Fearful of the possibility of a long sentence, del
Toro accepted the offer, pleaded guilty, and was sentenced to seventeen years’
incarceration.
After his conviction, del Toro hired new counsel, who in turn hired a medi-
cal expert, Dr. Lloyd White, to examine Alexyah’s medical records. The record
includes a letter from White and a subsequent affidavit. In both he concludes
that Alexyah’s medical records indicate that she had previous health problems
that could result in the symptoms she suffered when del Toro took her to the

-- 3 of 7 --

No. 06-40043
4
hospital and that her family history, including the death of her brother, who had
demonstrated similar symptoms, and the infant deaths of three cousins, in-
dicated a possible genetic predisposition to natural cardio-respiratory arrest.
White concluded that “there is a reasonable medical probability that the injuries
suffered by [Alexyah] were not caused by an action by [del Toro] or any other
person.”
White’s affidavit does not discuss del Toro’s statements that he held a
blanket over Alexyah’s head; it states that White’s conclusion is based only on
a review of the records. In contrast, White’s letter does mention del Toro’s state-
ment to police but concludes that holding a blanket briefly over an infant’s face
“per se would not necessarily cause injury.” It goes on, however, to state that
White’s understanding is that del Toro later recanted his confession, claiming
it was induced by coercion. Del Toro does not claim his confession was coerced,
and the district court found that there is no evidence of a recantation in the
recordSSfacts that Del Toro does not contest on appeal.
After his state habeas petition was denied, del Toro filed a federal habeas
petition, which the district court denied, adopting the findings and conclusions
of the magistrate judge. The district court issued a certificate of appealability
solely on the issue of whether the court had erred by holding that trial counsel
were not constitutionally deficient for failing to conduct a reasonable investiga-
tion or make a reasonable decision not to investigate.
II.
To prevail on his habeas claim, del Toro must show that his state court
adjudication “resulted in a decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as determined by the Su-
preme Court . . . .” 28 U.S.C. § 2254(d)(1). To prove that his counsel’s perfor-
mance was so poor as to fail to provide the minimum “Assistance of Counsel for

-- 4 of 7 --

No. 06-40043
5
his defence” guaranteed by the Sixth Amendment, del Toro must establish
(1) that counsel’s performance was deficient and (2) that “the deficient perfor-
mance actually prejudiced the defense to such an extent that there is a reason-
able probability that, but for the attorney’s unprofessional errors, the result of
the proceeding would have been different.” Armstead v. Scott, 37 F.3d 202, 206
(5th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). A
defendant must establish that his attorney erred and that but for the error he
would not have pleaded guilty. See id. at 206.
In evaluating whether an attorney’s conduct was deficient, “[t]he proper
measure of attorney performance remains simply reasonableness under prevail-
ing professional norms.” Washington, 466 U.S. at 688. To evaluate whether a
defendant who has pleaded guilty has been prejudiced by his counsel’s deficient
performance, i.e., whether he would not have pleaded guilty had his counsel not
been deficient, we must evaluate what the outcome of a trial might have been.
See Armstead, 37 F.3d at 206.
Del Toro alleges that his counsel failed to investigate and discover poten-
tially exculpatory evidence, so the existence of prejudice depends on the likeli-
hood that the discovery of the evidence would have led counsel to change his rec-
ommendation, which in turn depends “in large part on a prediction of whether
the evidence likely would have changed the outcome of a trial.” Id. Del Toro
need not prove by a preponderance that the result of the proceedings in the trial
court would have been different, but he must sufficiently undermine confidence
in the outcome to illustrate that counsel’s deficient performance caused the out-
come of the proceeding to be unreliable or the proceeding to be fundamentally
unfair. Id. at 207.
III.
We need not evaluate whether del Toro was prejudiced by his counsel’s

-- 5 of 7 --

No. 06-40043
1 Although the district court relied on the prejudice prong of the Washington test to sup-
port its denial of habeas relief and did not discuss the deficiency prong, we may affirm for any
reason supported by the record, even if not relied on by the district court. See LLEH, Inc. v.
Wichita County, Tex., 289 F.3d 358, 364 (5th Cir. 2002).
2 See Roberts v. Dretke, 356 F.3d 632, 638-39 (5th Cir. 2004) (citing Autry v. McKaskle,
727 F.2d 358, 361 (5th Cir. 1984) (“By no measure can [defendant] block his attorney’s efforts
and later claim the resulting performance was constitutionally deficient.”)).
6
choice not to hire an expert, because the choice was reasonable under the cir-
cumstances and therefore constitutionally sufficient.1 A lawyer has a duty “to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Washington, 466 U.S. at 690-91. We do
not indulge the temptation to rely on hindsight that accompanies claims that
counsel’s investigation was inadequate. “[A] court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide range of reasonable pro-
fessional assistance. . . . [S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable.” Id.
at 689-690.
Del Toro fails to overcome the presumption that counsel made sound stra-
tegic decisions. He tries to explain away his own decision not to accept McFar-
land’s offer to hire an expert by saying that the offer, because it came a few days
before trial (but shortly after del Toro had retained McFarland), “could not have
been more hollow.” If, however, a client instructs his attorney not to hire an in-
vestigator or contact and interview witnesses, the client cannot later claim that
the failure to do these things amounted to ineffective assistance.2
Del Toro does not elaborate why the timing of McFarland’s offer rendered
it useless. He presents no evidence that he declined the offer because of the
short period of time remaining before trial rather than because he did not want
to pay an expert’s fee, or even that he expressed concerns about the limited time
remaining for expert review at the time McFarland made the offer. He cites no

-- 6 of 7 --

No. 06-40043
7
caselaw supporting the proposition that offers to investigate made shortly before
trial are worthless.
Although the trial judge had expressed reluctance to grant further contin-
uances, del Toro could have made a persuasive case that his new attorney ought
be afforded time to consult an expert about the medical records, particularly if
del Toro believed that failure to do so on the part of his prior counsel had consti-
tuted severely deficient performance on their part. Instead, del Toro declined
McFarland’s offer, did not press for a continuance or a quick expert review, and
chose to plead guilty. We will not, in these circumstances, conclude that coun-
sel’s failure to consult an expert resulted in constitutionally inadequate assis-
tance.
AFFIRMED.

-- 7 of 7 --