Martinez v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
May 24, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-51067
_______________
DAVID MARTINEZ,
Petitioner-Appellant,
VERSUS
DOUGLAS DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m A-02-CA-759
_________________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
David Martinez appeals the denial of his pe-
tition for writ of habeas corpus. Finding no
error, we affirm.
I.
In October 1998, a jury convicted Martinez
of the capital murder of Kiersa Paul while at-
tempting to commit or committing robbery or* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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2
aggravated sexual assault.1 During the punish-
ment phase of the trial, the defense and pro-
secution presented witnesses regarding Mar-
tinez’s character, past experiences, and future
dangerousness. The prosecution also offered
the testimony of an expert, Dr. Ferrara, who
used the Hare Psychopathy Checklist to argue
that Martinez posed a future danger to society.
The jury expressly found (1) that a prob-
ability existed that Martinez would commit
future criminal acts of violence and would rep-
resent a continuing threat to society; and (2)
that no sufficient mitigating circumstances
existed to justify a life sentence rather than the
death penalty. Consequently, the court sen-
tenced Martinez to death.
Martinez unsuccessfully challenged his con-
viction and sentence through a direct appeal
and through a state habeas petition. He filed a
federal habeas petition pursuant to 28 U.S.C.
§ 2254. The district court denied relief on all
seven issues Martinez raised but issued a
Certificate of Appealability (“COA”), pursuant
to 28 U.S.C. § 2253(c)(2),2 on four issues:
(1) whether the petitioner was denied the
effective assistance of counsel when his tri-
al counsel failed to prepare for and
adequately argue the results of the Hare
Psychopathy Tests should be excluded, or
adequately impeach the State’s expert on
this issue; (2) whether the petitioner’s due
process rights were violated with the
admission of the Hare Psychopathy Tests;
(3) whether the petitioner was denied the
effective assistance of counsel when his tri-
al counsel failed to investigate and present
evidence of the substantial abuse suffered
by the petitioner at the hands of his mother,
father, and his father’s sado-masochistic
homosexual lover; and (4) whether the pe-
titioner was denied the effective assistance
of counsel when his trial attorneys failed to
adequately investigate and present
mitigating evidence as well as employ and
prepare defense experts and cross-examine
the State’s experts in such a manner as to
provide the jury a true and correct picture
of the petitioner’s future dangerousness.
The four grounds do not concern the validity
1 A jogger found Paul’s body along a trail. Paul
told her sister the previous night that she intended
to meet an individual named Wolf at that location.
Her body was covered only by a pair of unbuttoned
boxer shorts, and her legs were spread open.
Further investigation revealed injuries consistent
with strangulation, blunt force injury to the head
and nose, gouge marks on the neck, bruising of
both nipples, cuts on her neck, breast, and stom-
ach, and forceful sexual intercourse.
Martinez, whose nickname was “Wolf,” told
friends that he intended to meet a girl that evening
along the trail. He returned to his friends’ house
with a bicycle he did not own. After executing a
search warrant, the police determined that Martinez
possessed Paul’s bicycle and bicycle bag. They
also seized a Swiss army pocketknife owned by
Martinez. Forensic tests determined that hairs
found on Paul were consistent with Martinez’s hair
and that Martinez’s pocketknife contained blood
that matched Paul’s DNA. Semen collected from
Paul’s underwear matched Martinez’s DNA.
2 Section 2253(c)(1) states that a party may not
appeal “the final order in a habeas corpus proceed-
ing in which the detention complained of arises out
of process issued by a State court” unless a circuit
justice or judge issues a COA. Section 2253(c)(2)
notes that a COA can issue “only if the applicant
has made a substantial showing of the denial of a
constitutional right.”

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3
of the verdict but only address questions
surrounding the punishment phase of the trial.3
The district court did not err in denying
Martinez’s habeas petition on these four
matters.
II.
“In a habeas corpus appeal, we review the
district court’s findings of fact for clear error
and its conclusions of law de novo, applying
the same standards to the state court’s
decision as did the district court.” Busby v.
Dretke, 359 F.3d 708, 713 (5th Cir. 2004)
(citing Martinez v. Johnson, 255 F.3d 229,
237 (5th Cir. 2001)). “[W]e must defer to the
state habeas court unless its decision ‘was
contrary to, or involved an unreasonable
application of clearly established Federal law,
as determined by the Supreme Court of the
United States.’ . . . .” Haynes v. Cain, 298
F.3d 375, 379 (5th Cir.) (en banc) (quoting 28
U.S.C. § 2254(d)(1)), cert. denied, 537 U.S.
1072 (2002). Additionally, “[f]actual
determinations by state courts are presumed
correct absent clear and convincing evidence
to the contrary.” Miller-El v. Cockrell, 537
U.S. 322, 339 (2003) (citing 28 U.S.C. §
2254(e)(1)).
III.
Three of the questions on which the district
court granted a COA center on the
effectiveness of Martinez’s appointed trial
counsel. More specifically, they question
counsel’s constitutional effectiveness in
investigating three separate matters.
Under Strickland v. Washington, 466 U.S.
668 (1984), a defendant “must show that his
counsel’s assistance was deficient and that the
deficiency prejudiced him.” Hopkins v. Cock-
rell, 325 F.3d 579, 586 (5th Cir.) (citing
Washington, 466 U.S. at 687)), cert. denied,
124 S. Ct. 430 (2003). “To establish deficient
performance, a petitioner must demonstrate
that counsel’s representation ‘fell below an ob-
jective standard of reasonableness.’” Wiggins
v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527,
2535 (2003) (quoting Washington, 466 U.S. at
688). If counsel performed deficiently, “the
defendant must show that there is a reasonable
probability that, but for counsel’s un-
professional errors, the result of the
proceeding would have been different.
A reasonable probability is a probability
sufficient to undermine confidence in the out-
come.” Haynes, 298 F.3d at 380 (quoting
Washington, 466 U.S. at 694). With respect
to investigations, we do not focus on the
purported matters the counsel should have
found or on the final decision to pursue a
particular course but rather “whether the
investigation supporting [a particular] decision
. . . was itself reasonable.” Wiggins, 539 U.S.
at ___, 123 S. Ct. at 2536 (emphasis in orig-
inal).
Martinez’s trial counsel4 did not act in an
objectively deficient manner or below an ob-
jective standard of reasonableness. Rather,
counsel thoroughly investigated and
interviewed a variety of witnesses as part of
their effort to spare their client from the death
penalty.
First, Martinez maintains that his counsel
did not adequately prepare themselves and did
not sufficiently argue to exclude the Hare Psy-
chopathy Test, which measures behavior
3 Martinez has not appealed the denial of any
other grounds for a COA.
4 Different appointed counsel represented Mar-
tinez in his trial and in his habeas proceedings.

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4
based on twenty characteristics to determine
whether the subject meets that test’s definition
of a psychopath. Upon learning that Ferrara
intended to use the Hare Test in his testimony,
defense counsel objected and obtained a delay
in the punishment phase so as to investigate
and challenge5 the validity of the test.
During the three days in which the court
stayed its proceedings, counsel contacted their
experts and located ample reference materials
with which to cross-examine Ferrara. The
challenge to the test and the cross-examination
of Ferrara lasted half a day. Although the
challenge did not succeed, counsel prepared so
well that the trial judge complimented them on
their efforts.
The attorneys’ efforts did not fall below any
standard of reasonableness. Instead, when
faced with an adverse clinical test, the
attorneys responded as well as could any
reasonably competent attorney.6 Once the
court allowed the jury to consider the Hare
Test, the attorneys introduced evidence to
argue that Martinez’s propensity for violence
would decrease over time and that a life
sentence would ensure that he would no
longer endanger society. Such an approach
allowed Martinez to challenge the test, to
respond to the graphic evidence, and to offer
a plausible reason not to order the death
penalty. Martinez’s counsel did not act in an
objectively unreasonable manner.
Seco ndly, Martinez challenges his
attorneys’ investigation and presentation of
alleged abuse that occurred at the hands of
Martinez’s parents and his father’s sado-
masochistic lover. Martinez offers that a more
thorough investigation would have uncovered
witnesses who would have more affirmatively
testified as to the abuse that Martinez
suffered.7
As the district court discussed and as the
state habeas court noted, defense trial counsel
introduced evidence to indicate that Martinez
suffered physical and emotional abuse at the 5 The challenge followed the approach of Dau-
bert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
6 Our review of the record causes us to agree
with the assessment of the district court:
There is no evidence that Martinez’s attorneys
performed objectively unreasonably under the
[Washington] standard. To the contrary, Mar-
tinez’s counsel timely objected to Dr. Ferrara’s
testimony and articulated several reasons for
their objections. Their repeated and fervent ob-
jections persuaded the trial judge to continue
the trial from a Thursday to a Monday morn-
ing, even though the judge stated he wanted to
move the trial along. During this continuance,
the attorneys consulted with their experts and
collected materials regarding the Hare test and
prepared a respectable cross-examination of Dr.
(continued...)
6(...continued)
Ferrara during the Daubert hearing and in the
presence of the jury. They also submitted
expert testimony that Martinez was not at risk
for future dangerousness because his propensity
for violence will decrease over time. Over all,
Martinez’s attorneys responded to the Hare
testimony in a professional reasonable manner.
7 Martinez proffers that Jessica Scott, a high
school friend, would have testified that Martinez
was being pushed to engage in sexual acts with his
father and the sado-masochistic lover. Scott also
would have testified, at the punishment phase, that
she learned that Martinez’s father sexually abused
Martinez.

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5
hands of his mother.8 The counsel, for
strategic reasons, chose not to attack the
mother directly while on the stand.9 In light of
the fact that “[w]e will not find inadequate
representation merely because, with the benefit
of hindsight, we disagree with counsel’s
strategic choices,” Martinez’s trial counsel did
not perform below any objective standard of
reasonableness. Green v. Johnson, 116 F.3d
1115, 1122 (5th Cir. 1997).10
With respect to alleged abuse from the fa-
ther and his sado-masochistic lover, various
witnesses gave differing accounts of what took
place in Martinez’s home.11 Defense witnesses
suggested that something changed after
Martinez’s father became involved with a new
partner who had an interest in sado-
masochism. John Reynolds, Martinez’s
father’s prior partner, indicated that Martinez
and the father dressed and acted “weirder”
after the change in partners. Petitioner asserts
that Jessica Scott, Mary Ellen Felps, and
William Zachary would have testified that
Martinez suffered abuse at the hands of his
father and his father’s partner.
The evidence available for trial, however,
did not establish exactly what took place in
Martinez’s father’s home. Martinez’s counsel
could not reach Martinez’s father and failed in
serving an out-of-state subpoena on him. Ad-
ditionally, Martinez gave contradictory state-
ments to various people regarding possible
abuse.12 Because Martinez’s trial counsel
could not compel Martinez’s father to testify,
and because scant direct evidence existed to
support the claim of sexual abuse, the
attorneys had to make a decision.
Given the mixture of available evidence,
Martinez’s attorneys adopted an approach that
emphasized the difficult circumstances that
Martinez faced but did not highlight possible
sexual abuse. Trial counsel described their
strategy in an affidavit they provided to the
state habeas court: “David Martinez had good
relationships with his mother, his friends, his
teachers[,] was mistreated by his mother, and
. . . he had difficulty because his father was in
an openly homosexual relationship and in the
business of making homosexual sex toys.”
8 Mary Felps, a social worker who visited Mar-
tinez’s childhood home, testified that the home
smelled, was covered with bird feces, and was one
of the worst homes she had seen. She indicated
that she believed the mother abused and neglected
Martinez. Laura Walker, Martinez’s probation of-
ficer for an earlier offense, testified that Martinez
moved into his father’s home because his mother
had physically and emotionally abused him.
9 In quoting an affidavit from Martinez’s trial
counsel, the district court noted that “[w]hile the
defense called Martinez’s mother to the stand ‘to
give the jurors an idea of what kind of person she
was,’ ‘for strategic reasons, [they] did not try to
annihilate her.’”
10 See also Washington, 466 U.S. at 701
(“Counsel’s strategy choice was well within the
range of professionally reasonable judgments, and
the decision not to seek more character or psy-
chological evidence than was already in hand was
likewise reasonable.”).
11 During the time Martinez lived with his fath-
er, the father changed partners.
12 Although Martinez told his probation officer
that his mother had abused him, he denied any
abuse at the hands of his father. When Martinez
met with another psychiatrist while awaiting the
capital trial, he denied that any abuse from either
parent had occurred. Additionally, Martinez told
Felps that he loved his father and that nothing was
wrong.

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6
The attorneys attempted to use Felps’s
testimony to suggest that the parents abused
Martinez, but they could not “substantiate any
sexual activity between David and David’s
father or David’s father’s lover, Evan.” Again,
an unsuccessful strategy does not necessarily
indicate constitutionally deficient counsel.
Thirdly, Martinez asserts that his trial coun-
sel failed to investigate and prepare witnesses
to present sufficient mitigating evidence so as
to give a more favorable image of Martinez’s
future dangerousness. Martinez offers a
number of witnesses, including those listed
previously, who allegedly would have offered
more mitigating information. Felps indicates
that greater preparation on the part of the
defense attorneys would have enabled her to
testify in a more composed manner and to
connect with the jury. Felps also wishes that
she could have testified more directly as to
possible abuse from Martinez’s father.
William Zachary allegedly would have
undermined some of the testimony of Sarah
Yoder, a prosecution witness.13
Counsel’s failure to offer these individuals’
and any other parties’ testimony did not render
their performance deficient. Trial counsel pre-
sented numerous witnesses who testified to
Mart inez’s positive character traits.14
Although Felps wished that she could have
given a more persuasive form of testimony, the
district court correctly noted that she had the
opportunity to present the testimony that she
now wishes she had given.15 Though Zacha-
ry’s testimony might have undermined Yoder’s
statements to some degree, it would not have
contradicted the knife incident or any specific
incident in which Martinez might have
engaged in inappropriate sexual behavior.
Thus, Martinez’s trial attorneys did not per-
form in a manner that fell below any objective
standard of reasonableness. They conducted
investigations and located numerous witnesses
to help their client avoid the death penalty. In
the course of the punishment phase, they had
to make strategic decisions based on the
available evidence and on the predicted effect
a certain approach might have on the jury.
Martinez has not satisfied the first prong of
Washington. Thus, his claims with respect to
the first, third, and fourth issues on which he
requested a COA are denied.
IV.
Martinez asserts that the introduction of the
Hare Psychopathy Test violated his due
process rights. As we have indicated, the test
considers twenty factors in determining wheth-
er a person meets the definition of a psy-
chopath. Ferrara test ified on behalf of the
prosecution and concluded that Martinez was
a psychopath. Although Martinez’s counsel
challenged the validity of the test in front of
the jury, the court allowed the jury to consider
13 Yoder testified that Martinez often forced her
into uncomfortable and unwanted sexual situations
and that Martinez once held a hunting knife to her
throat. Zachary would have testified that Yoder
consented to light bondage and enjoyed the
practice.
14 Such witnesses included Martinez’s eighth-
grade teacher, ninth-grade teachers, high-school
counsel, and high-school theater director.
15 As the district court stated, “Thus, while in
the perfect trial, Felps might have been more pre-
pared, she did have the opportunity at trial to give
the testimony she now states she wishes she would
have given, and in fact did give some of that
testimony. Whether or not she had a connection
with the jury is not Martinez’s counsel’s respon-
sibility.”

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it in its punishment determination.
Martinez argues that the test has significant
weaknesses and inadequacies and that Ferrara
did not follow the test’s actual procedures.
We agree with the district court that the trial
court’s decision to admit the test did not vio-
late “clearly established Federal law, as
determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). The
test itself does not involve any constitutionally
suspect factors such as race or ethnicity.16 The
jury had the opportunity to listen to defense
counsel’s articulation of the test’s weaknesses
and to the cross-examination of Ferrara. Be-
cause the jury considered a number of pieces
of evidence regarding Martinez’s future dan-
gerousness, and because Martinez’s counsel
challenged the merits of the Hare Test’s pro-
cedures, the court did not violate Martinez’s
due process rights by allowing the test and
Ferrara’s testimony into evidence.
The judgment denying habeas relief is
AFFIRMED.
16 See, e.g., McCleskey v. Kemp, 481 U.S. 279,
309 n.30 (1987) (“The Constitution prohibits ra-
cially biased prosecutorial arguments.”).

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