Amador v. Quarterman, 458 F.3d 397 (5th
Cir. 2006) (Habeas)
Background: After his capital murder conviction and
death sentence were affirmed on appeal by the Texas Court of Criminal
Appeals, and state habeas relief was denied by the same court, defendant
petitioned for federal habeas relief. The United States District Court
for the Western District of Texas, 2005 WL 827092, Xavier Rodriguez, J.,
granted State's motion for summary judgment and denied defendant's
claims for relief, but granted certificate of appealability (COA) on two
of defendant's claims. Defendant appealed.
Holdings: The Court of Appeals, King, Circuit Judge,
(1) appellate counsel's failure to challenge admission of defendant's
oral statement to investigating officer, which correctly identified
caliber of guns used to commit the crime, was not ineffective assistance;
(2) appellate counsel's failure to establish that defendant's objection
to admission of witness's in-court identification of him was preserved
constituted deficient performance;
(3) out-of-court “show-up” identification of defendant, although
unnecessary and suggestive, did not render subsequent in-court
identification unreliable; and
(4) admission of in-court identification did not cause any prejudice to
defendant, as required to establish ineffective assistance of counsel.
KING, Circuit Judge:
In this capital murder case, petitioner John Joe Amador appeals the
district court's dismissal of his petition for writ of habeas corpus
under 28 U.S.C. § 2254 on two of his claims that he was denied effective
assistance of counsel in violation of his Sixth Amendment rights during
the direct appeal of his conviction before the Texas Court of Criminal
Appeals. For the following reasons, we AFFIRM the judgment of the
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Criminal Proceedings
1. The Crime and Aftermath
a. The Crime
During the early morning of January 4, 1994, taxicab
driver Reza “Ray” Ayari stopped to pick up his friend Esther Garza, who
occasionally accompanied Ayari during his shifts. Garza had been
drinking heavily that night and had sought Ayari's company because she
was upset over a fight she had recently had with her boyfriend.
According to Garza's testimony, between 3:00 a.m. and
3:30 a.m., Ayari stopped on the west side of San Antonio, Texas, to pick
up two passengers, later identified as eighteen-year-old John Joe Amador
and his sixteen-year-old cousin Sara Rivas. Amador asked Ayari to take
them to Poteet, Texas, a town approximately thirty minutes southwest of
San Antonio. Ayari replied that he would need twenty dollars in advance.
Amador indicated that he did not have twenty dollars, but directed Ayari
to a house where he could obtain the money.
The house was later identified as that of Amador's
girlfriend, Yvonne Martinez. The cab stopped at Martinez's house, Amador
returned with the money, and the four occupants-Ayari in the driver's
seat, Garza in the front passenger seat, Amador in the seat behind Ayari,
and Rivas in the seat behind Garza-proceeded to Poteet.
Garza testified that when they reached rural Bexar
County, the passengers directed Ayari to stop in front of a house with a
long driveway. As Ayari drove toward the house, he was shot in the back
of the head without warning. Garza was shot immediately thereafter.
Garza, who was still alive despite sustaining a gunshot wound to the
left side of her face, later testified that she feigned death as Amador
and Rivas pulled Ayari and Garza out of the car, searched Garza's
pockets, and drove off down the driveway, damaging the cab in the
When police arrived at the scene of the shootings,
they found Ayari dead. Garza was bleeding from the head and face,
hysterical, and unable to speak coherently. She was eventually able to
tell the officers at the scene that one of the suspects was male, that
she had never seen him before, and that he was 6'1?, possibly of Arabic
ethnicity, and had short black hair.FN1
Officers found .380 and .25 caliber shell casings at
the scene, and a .25 caliber bullet was removed from Garza's nasal
cavity that night at the hospital. The cab was eventually found
abandoned in a median in the outskirts of San Antonio, and a woman named
Esther Menchaca later testified that she had observed two people who
resembled Amador and Rivas walking away from the cab in the median as
she drove to work in the early morning of January 4.
FN1. It is undisputed that John Joe Amador is 5'6?
b. The Investigation
On January 10, 1994, after Garza had been released
from the hospital, she gave the Bexar County Sheriff's Office a
description of the suspect to aid in creating a composite sketch. Garza
also spoke with lead investigator Detective Robert Morales and gave a
written statement, which reaffirmed the description she had given at the
scene, although she described the suspect as Hispanic rather than Arabic
as she had originally stated.
On January 24, 1994, acting on an anonymous “Crime
Stoppers” tip, a Bexar County Sheriff's Deputy picked up Amador and his
girlfriend Yvonne Martinez from a San Antonio school and took them to
the sheriff's department for questioning. Both denied any knowledge of
or involvement in the shootings.
Officers also took their pictures and prepared photo
arrays to present to Garza, the only eyewitness to the crime. While
Amador and Martinez were still being questioned, Detective Morales drove
Garza to the sheriff's department. Garza testified at a pretrial hearing
that Detective Morales showed her the photo array containing Martinez's
picture while they were in the car en route to the sheriff's
While Garza did not identify any of the women in the
photo array as a suspect, she did identify Martinez as someone she knew
from work and stated that Martinez was definitely not the woman in
Ayari's cab the night of the shootings. When Garza arrived at the
sheriff's department, the officers showed her a second photo array, this
time containing pictures of Hispanic males.FN3
Garza was unable to identify any of the men as a
suspect. The officers then took her on a “show up” to view Amador and
Martinez, instructing her to look through holes that had been cut in a
piece of cardboard that was taped against the window of the homicide
office where Amador, Martinez, and a sheriff's deputy were sitting.
Garza once again identified Martinez as a former co-worker and confirmed
that she had not been in the cab on the night of the shootings. However,
she was unable to identify Amador as the male passenger in the car on
the night of the shootings, telling the officers that she did not know
whether he was the shooter and that “I'm just not up to that right now.”
FN2. The trial transcript reveals a number of
discrepancies in the testimony of various witnesses regarding the dates
that Garza was shown photo arrays, how many photo arrays she was shown,
and whether the suspects' photos were included in each photo array that
she viewed. However, it is undisputed that Garza was unable to identify
Amador from a photo array or otherwise prior to March 30, 1994.
FN3. It is also unclear from the record whether this
photo array contained a picture of Amador. The district court noted that
Sergeant Sal Marin testified that, to his personal knowledge, no photo
arrays prior to March 30, 1994, contained a photo of Amador. See Dist.
Ct. Order n. 27. However, the record reflects that Detective Morales
handled most of the photo arrays, and it is unclear from his testimony
and from the rest of the record which photo arrays contained photos of
Amador and which did not.
The following day, the officers asked Garza if she
would consent to be hypnotized in an effort to enhance her memory and
make her more confident in her identification. Garza agreed, and on
February 3, 1994, she underwent hypnosis performed by Brian Price, a
Bexar County Adult Probation Officer who had training as an
investigative hypnotist. During the session, she confirmed her
description of the suspect as a 6'1? Hispanic male. Based on her
description, a sketch artist rendered another composite drawing of the
On March 16, 1994, Garza called Detective Morales and
informed him that a friend had told her that the two people who had done
the shootings were named John Joe Amador and Sara Rivas. She
subsequently revealed that the source of this information knew Martinez,
whom the source had overheard talking about the crime and whom Garza had
previously recognized as a former co-worker when Martinez was sitting
with Amador during the show up in the Bexar County Sheriff's Office.
On March 30, 1994, the officers again showed Garza a
photo array, and this time Garza was able to identify Amador as the male
suspect in the cab on the night of the shootings. The picture of Amador
contained in the photo array was taken the same day that Garza had
observed him with Martinez during the show up, and in the picture he was
wearing the same black shirt. She was unable to identify Rivas from
another photo array.
An arrest warrant was issued for Amador, who had
since gone to California. An officer arrested Amador and brought him
back to Texas; Rivas was also arrested. On April 13, 1994, Rivas gave a
written statement to Detective Morales. Rivas alleged in her statement
that Amador had shot and killed Ayari and that, at Amador's instruction,
she had shot Garza with a gun that Amador had given her.FN4 Later that
day, Sergeant Sal Marin told Amador that Rivas had confessed to shooting
someone at Amador's direction. Amador then gave a written statement to
Sergeant Marin which, while inculpatory, spoke in hypothetical terms.FN5
FN4. Rivas's statement was not admitted into evidence
at Amador's criminal trial, but it was admitted during the pretrial
evidentiary hearing concerning Amador's motion to suppress. FN5. A
partially redacted version of Amador's statement was admitted into
evidence at trial and read in open court. Trial Tr., Vol. XIX, pp.
The portion of Amador's statement read into the
record at trial is as follows:
My name is John Joe Amador. I am 18 years old and I
live at 3907 Eldridge Street in San Antonio, Texas. I have told Sergeant
Marin that I am going to tell him about the murder of the taxicab driver
and the shooting of a young girl. I am going to tell my side of the
story the way I want it to come out. I don't need no attorney or
anything for this. Sergeant Marin has read me my rights and I understand
During the early part of January 1994, I don't
remember the date other than it was sometime shortly after New Year's
Day, this is when this mess all started. It was during the night. I
don't remember what time it was, but I do know it was late. They say I
shot and killed a taxicab driver and my cousin Sara Rivas shot a young
woman in the face. If this is true, Sara would have shot the young woman
because I would have ordered her to do it. Sara is my cousin and she is
not that type of a person. She is from Houston and was visiting here in
San Antonio when all of this shit happened. She wanted to visit her
grandma who lives near Poteet, Texas, but she never made it over there.
In this situation I would have handed her a gun and I would have ordered
her to shoot the woman with that gun. If all of this stuff about the
murder is true and they can prove it in court, then I will take my death
sentence. This is all I want to say. I don't want to say any more. I
will just wait for my day in court. Id.
The next day, April 14, 1994, Amador contacted
Sergeant Marin to inquire whether his cousin was all right. After
assuring Amador that Rivas was fine, Sergeant Marin asked Amador to
accompany him to the scene of the crime and help him locate the guns
used in the shooting. Amador agreed to do so, but the weapons were never
found. While at the scene, Amador mentioned that if he had committed the
crime, he would have used .25 and .380 caliber handguns.
c. Pretrial Hearing on Amador's Motion to Suppress
Prior to trial, Amador filed numerous written motions
to suppress much of the prosecution's evidence, including, inter alia,
objections to the admissibility of the statement that he made regarding
the caliber of the guns used in the shooting and to the in-court
identification of him by any witness. From May 22-24, 1995, the court
held a pretrial hearing, which included the presentation of evidence and
arguments concerning Amador's motions.
i. Amador's Oral Statement Identifying the Caliber
of the Guns Used in the Crime
At the time of Amador's trial, Article 38.22, section
3 of the Texas Code of Criminal Procedure barred the use of statements
by an accused resulting from a custodial interrogation at trial unless
an exception applied. At the pretrial hearing, Sergeant Marin and Amador
testified about their visit to the crime scene to search for the weapons.
The trial court ultimately ruled that Amador's statement was admissible
under Article 38.22, section 3 of the Texas Code of Criminal Procedure,
which provided, in pertinent part:
(a) No oral ... statement of an accused made as a
result of custodial interrogation shall be admissible against the
accused in a criminal proceeding unless: (1) an electronic recording,
which may include motion picture, video tape, or other visual recording,
is made of the statement; ... (c) Subsection (a) of this section shall
not apply to any statement which contains assertions of facts or
circumstances that are found to be true and which conduce to establish
the guilt of the accused, such as the finding of secreted or stolen
property or the instrument with which he states the offense was
committed. Tex.Crim. Proc.Code Ann. art. 38.22(3)(c) (Vernon Supp.1994).
Over Amador's objections, the trial court determined
that Amador's statement was admissible under this statute because,
although the statement was not recorded, “Sergeant Marin indicated that
subsequently they did determine that statement to be true and it
conduces to show his guilt of the offense.” Trial Tr., Vol. V, pp.
ii. Garza's In-Court Identification of Amador
Amador also argued that any in-court identification
made by Garza was inadmissible because the out-of-court identification
procedures had been unnecessary and suggestive in violation of Amador's
due process rights. At the evidentiary hearing on May 22, 1995, Garza
testified to the events leading up to the shooting, the out-of-court
identification procedures that the Bexar County Sheriff's Department
employed, the phone call from her friend who told her the names of the
shooters, and her eventual identification of Amador. FN6 See Trial Tr.,
Vol. III, pp. 6-75. FN6.
Garza's eventual testimony at trial largely mirrored
the contents of her pretrial testimony, although a hearsay objection at
trial prevented the jury from hearing that Garza had initially learned
Amador's name from a friend.
The two investigating officers, Detective Morales and
Sergeant Marin, also testified at the hearing, describing their
investigation, their interactions with Garza, Garza's initial hesitance
to identify Amador, the hypnosis session, and the identification
procedures that they employed, including the show up and the various
photo arrays.FN7 See id., Vol. IV, pp. 7-109, 166-254. FN7. Likewise,
the officers' testimony at trial was substantially similar to their
After the presentation of the evidence and the
arguments, Amador again moved to suppress any in-court identification
testimony from Garza, and, after considering the evidence presented at
the hearing and watching a videotape recording of Garza's hypnosis
session, the court denied this motion.
2. Trial, Conviction, and Sentencing
On June 30, 1995, a Bexar County grand jury returned
an indictment against Amador on a charge of capital murder. Amador
entered a plea of not guilty. The guilt-innocence phase of his jury
trial began on July 5, 1995.
a. Evidence Adduced at Trial
i. Amador's Oral Statement Identifying the Caliber
of the Guns Used in the Crime
At the guilt-innocence phase of the trial, Sergeant
Marin testified to Amador's statement during the prosecution's case-in-chief,
and Amador's counsel objected once more, this time on hearsay grounds.
The court overruled this objection and allowed Sergeant Marin to testify
that Amador had identified the guns used in the shootings as .25 and
.380 caliber weapons. Sergeant Marin also testified that the sheriff's
department had publicly identified one of the weapons as a .380 caliber
handgun in a press release dated January 4, 1994. Trial Tr., Vol. XIX,
The jury also heard testimony from Bexar County
Sheriff's Department Detective Adrian Ramirez that on the morning of the
shootings, officers had found a spent .25 caliber shell casing inside
the abandoned taxicab. Id. Vol. XIX, p. 4. An officer who was present at
the crime scene, Daniel Sanchez, testified that he found a .380 caliber
shell casing at the scene on the morning of the shootings. Id. Vol.
XVIII, p. 257.
ii. Garza's In-Court Identification of Amador
The prosecution also presented eyewitness testimony
from Garza, who identified Amador in court. In addition to describing
the events leading up to the January 4, 1994, shooting, Garza testified
that: (1) she had been “drinking all day” before Ayari picked her up the
night of the shootings, and she had consumed approximately fourteen to
fifteen beers and one wine cooler; (2) when Ayari stopped to pick up
Amador and Rivas, she was still “intoxicated,” “drunk,” and “wasted,”
had been crying about a fight she had had with her boyfriend, and
“wasn't really paying attention to anything”; (3) she was able to view
Amador briefly that night when he walked in front of the cab's
headlights to get money from Martinez's house and when he was in the
back seat talking to her and Ayari; (4) on January 10, 1994, she gave a
statement describing the suspect to aid the sheriff's department in
creating a composite sketch and initially believed that the suspect was
6'1?;FN8 (5) she had never seen Amador before the night of the shootings;
(6) on January 24, 1994, she was taken to the sheriff's department and
instructed to view two people later identified as Amador and Martinez
through holes cut into a piece of cardboard; (7) during this show up,
she recognized Martinez as a former co-worker but “couldn't say” that
she recognized Amador; (8) on that same day, before the show up,
Detective Morales showed her a photo array of Hispanic males and a photo
array of Hispanic females, but she could not identify any of them as
suspects;FN9 (9) on February 3, 1994, she submitted to a hypnosis
session, no one during the session suggested to her the identity of her
assailant, and afterwards she assisted in creating another composite
sketch; (10) on March 30, 1994, Sergeant Marin showed her a photo array
and she identified Amador from that array; and (11) she was never able
to identify Rivas from a photo array or otherwise. Id. Vol. XVIII, pp.
93-252. A hearsay objection prevented Garza from testifying to the March
16, 1994, phone call from her friend who told her that he had heard that
Amador and Rivas were involved in the shootings. Id. Vol. XVIII, p. 148.
FN8. Garza explained that, when she saw him at the
sheriff's department, Amador looked different from the individual she
had observed on the night of the shootings because he had shorter hair
and was not as tall as she had remembered from her “slouched down”
vantage point in the cab. FN9. She testified that on that day she did,
however, identify Martinez as someone she knew from work.
Sergeant Marin and Detective Morales both testified
regarding the procedures that they used that led to Garza's positive
identification of Amador. Sergeant Marin told the jury that: (1) he
picked up Amador and Martinez on January 24, 1994, after receiving a
“Crime Stoppers” tip implicating them in the shooting of Ayari; (2) on
that day, the officers conducted a show up at the homicide office where
they had Garza look at Amador and Martinez through eye holes that were
cut into a piece of cardboard; (3) using a cardboard apparatus of this
sort was not a “normal” procedure; (4) the officers could have used a
lineup or photo array identification procedure on that date but did not;
(5) Garza had been unable to identify Amador at the show up or from any
photo array until March 30, 1994; (6) to his personal knowledge,
Amador's picture had not been included in a photo array before March 30,
1994, but (7) numerous officers were working on the case and it would
not have been normal procedure to include information in his reports
regarding the activities of other officers; (8) in April 1994, Rivas
gave a statement to the sheriff's department;FN10 and (9) on April 13,
1994, he took a statement from Amador.FN11 Id. Vol. XIX, pp. 131-233.
FN10. The contents of this statement were held to be
inadmissible. FN11. Portions of this statement were read into evidence.
See supra note 5.
The defense called Detective Morales, who testified
that: (1) he was the lead investigator in the case; (2) he had “numerous
contacts” with Garza before she was able to identify Amador; and (3)
there was nothing urgent that prompted the officers to do the show up
with Garza on January 24, 1994, but rather it was just convenient. Id.
Vol. XX, pp. 173-202. Neither officer testified about Garza's hypnosis
session or about the phone call that they received from Garza indicating
that she had learned the names of the suspects from a friend.
Two other witnesses provided testimony that tended to
implicate Amador in the shootings, Martinez and a witness named Esther
Menchaca, who had driven by and seen Amador and Rivas walking on the
median after they had abandoned the cab on the morning of January 4,
Martinez testified that: (1) Amador was her boyfriend;
(2) Amador awoke her in the early morning hours of January 4, 1994, by
knocking on her window and asked her for money for a taxi ride; (3)
approximately two weeks before January 4, 1994, Amador had told her that
he “wanted to do something crazy involving a taxicab”; (4) sometime
during the afternoon of January 4, 1994, Amador told her that he and his
cousin had taken a taxi to Poteet and had shot someone; (5) Amador
described the murder to her in great detail; and (6) Amador had written
her a letter from prison pressuring her not to testify. Id. Vol. XIX,
pp. 251-93; id. Vol. XX, pp. 12-46.
Menchaca testified that, early in the morning of
January 4, 1994, she was on her way to work heading toward Poteet. At
approximately 4:15 a.m. she observed an abandoned taxicab in the median
of Highway 16 and saw a male and a female walking along side of the road.
On May 3, 1994, she positively identified Amador from a photo array as
the male she had seen walking down the road. Id. Vol. XIX, pp. 61-129.
b. Conviction and Sentencing
On July 10, 1995, the jury returned its verdict,
finding Amador guilty of capital murder. The punishment phase of the
trial began that same day. On July 11, 1995, the jury sentenced Amador
3. Direct Appeal to the Texas Court of Criminal
On July 9, 1996, Amador appealed his conviction and
sentence to the Texas Court of Criminal Appeals (“TCCA”), alleging six
points of error.FN12 FN12. Amador's brief assigned the following as
error: (1) the trial court's admission of Garza's in-court
identification of Amador; (2) the trial court's instructions to the jury
during the punishment phase of the trial regarding the capital
sentencing “special issues” questions; (3) the trial court's failure to
quash the indictment against Amador because it failed to allege the
issues to be decided by the jury at the punishment phase; (4) the death
penalty's violation of the Eighth Amendment; (5) the death penalty's
violation of the United Nations Charter; and (6) the insufficiency of
the evidence to support the jury's guilty verdict.
a. Amador's Oral Statement Identifying the Caliber
of the Guns Used in the Crime
Amador's appellate counsel did not assign as error
the trial court's ruling admitting into evidence Amador's statement
identifying the caliber of the weapons used in the shooting.
b. Garza's In-Court Identification of Amador
The points of error did include an allegation that
the trial court erred by admitting into evidence Garza's in-court
identification of Amador because the out-of-court show up and hypnosis
identification procedures were unnecessary and suggestive in violation
of Amador's due process rights. The TCCA did not reach the substance of
this claim; instead, it held that Amador's counsel had failed to
preserve the alleged error at trial.
The court stated that after Amador's counsel filed
his motion to suppress Garza's in-court identification testimony, [t]he
trial judge agreed to view the videotape [of Garza's hypnosis session]
and rule on the admissibility of Garza's in-court identification
The judge told defense counsel he would contact his
office and notify him of the ruling. However, [Amador's counsel] does
not contend that such a ruling was ever made or direct us to any portion
of the record where such a ruling can be found. Further, [Amador's
counsel] made no objection to the admission of the evidence when it was
introduced at the trial on the merits. . . .[Amador's counsel] presents
no justification, cause, or excuse for his failure to object to the
admission of the evidence at the time of its introduction .... Therefore,
presenting nothing for review, Amador's first point of error is
overruled. Amador v. Texas, No. 72,162, 5-6 (Tex.Crim.App. Apr. 23,
1997) (en banc) (unpublished).
The trial court had in fact ruled on and denied the
motion to suppress on May 23, 1995, as reflected in the trial court's
docket entry from that date, located on page three of the first volume
of the trial record. The TCCA also rejected the remaining five points of
error and affirmed Amador's conviction and sentence. Id.
Amador's counsel filed a petition for rehearing with
the TCCA, but once again failed to provide the court with the citation
to the record evidencing the trial court's denial of Amador's motion to
suppress. The TCCA denied the petition for rehearing on June 23, 1997,
and the mandate issued that same day. Amador did not file a petition for
writ of certiorari with the Supreme Court of the United States.
B. Post-Conviction Proceedings
1. State Habeas Proceedings
Amador filed his petition for state habeas corpus
relief in state district court for the 226th Judicial District of Bexar
County on December 12, 1997. Amador alleged thirty-four total grounds
for relief, including, inter alia, eight claims of ineffective
assistance of counsel by his appellate counsel during his direct appeal,
eleven claims of ineffective assistance of counsel at trial, and six
claims of prosecutorial misconduct. The court held an evidentiary
hearing on these claims from October 1-2 and 7-8, 1998.
On February 14, 2001, the court adopted the state's
proposed findings of fact and conclusions of law, recommending that
habeas relief be denied on each of Amador's claims. Ex parte Amador, No.
94-CR-3643-W1 (Feb. 14, 2001) [hereinafter “State Habeas Order”]. The
TCCA adopted all of the findings of fact and conclusions of law set
forth in the state trial court's order and denied relief. Ex parte
Amador, No. 48,848-10 (Tex.Ct.Crim.App. Sept. 12, 2001) (unpublished).
The TCCA's denial of two of these claims is relevant to the instant
a. Amador's Oral Statement Identifying the Caliber
of the Guns Used in the Crime
First, Amador argued that he was denied effective
assistance of counsel on appeal because his attorney failed to assign as
error the trial court's evidentiary ruling that Amador's statements
concerning the caliber of guns used in the shootings were admissible.
Trial Tr., Vol. XVIII, p. 174. Amador argued that the admission of this
testimony under Article 38.22, section 3 of the Texas Code of Criminal
Procedure was error because that provision applied only to statements
containing facts that were unknown to law enforcement at the time the
statement was made and later found to be accurate. See Dansby v. Texas,
931 S.W.2d 297, 298-99 (Tex.Crim.App.1996) (holding that oral statements
resulting from custodial interrogation were inadmissible because they
merely confirmed information that law enforcement officers already knew).
In the instant case, at the time Amador made the statement in question,
the Bexar County Sheriff's Department was already aware of the caliber
of the guns used in the shooting and therefore this statutory exception
The TCCA rejected this argument for two reasons.
First, it indicated that Amador's pretrial motion to suppress on Article
38.22 grounds was insufficient to preserve the error for direct
appellate review. The court stated that, because Amador's counsel also
objected to the admission of the statement at trial on hearsay grounds,
“any complaint raised on appeal would have been required to have raised
that argument. Put in other words, an argument based upon Art. 38.22 ...
was precluded by the hearsay objection lodged at trial.” State Habeas
Order at 19.
In a footnote, the court added that it “is aware of
the legal proposition that if a motion to suppress is heard and denied,
no further objection is necessary to preserve the error. However, in the
instant [case] a further objection was made hence making that
proposition inapplicable.” Id. at 19 n. 5. The court cited no relevant
authority for this statement. Second, the court stood by its initial
ruling at trial that “the statements in question were admissible as an
exception to the prohibition outlined by” Article 38.22.
According to the court, because the statement was
admissible, Amador's counsel could not have been ineffective for failing
to raise this issue on appeal because Amador suffered no prejudice as a
result. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984) (requiring a habeas petitioner to show both deficient
performance and prejudice to prove ineffective assistance of counsel).
b. Garza's In-Court Identification of Amador
Second, Amador argued that he received ineffective
assistance of counsel on direct appeal because his attorney failed
properly to allege that the state trial court erred in admitting Garza's
in-court identification testimony that was the result of unnecessary and
suggestive identification procedures in violation of his due process
rights. Specifically, Amador faulted his appellate counsel for failing
to direct the TCCA to the docket notation indicating that this issue had
indeed been preserved for review.FN13 See State Habeas R., Vol. I, pp.
The state habeas court, apparently believing that
Amador was arguing that his counsel had not raised the issue of Garza's
identification testimony at all on appeal, rejected Amador's claim for
two reasons: (1) Amador's counsel had in fact raised the issue of the
admissibility of the identification testimony on appeal and the TCCA
held that the issue was not properly preserved for review; and (2) the
claim “erroneously presupposes that the testimony of Garza was
inadmissible as a violation [of Amador's] right to due process of law,”
and the admission of the evidence did not prejudice Amador because, even
if pretrial identification techniques had been unnecessary and
suggestive, the in-court identification testimony was still admissible
because “the totality of the circumstances reveal no substantial
likelihood of misidentification.”
FN13. At the state habeas corpus evidentiary hearing,
Amador's appellate counsel testified that, at the time of the direct
appeal, he believed the state's argument that this error had not been
preserved for review to be incorrect. He also testified that, despite
this belief, he made no effort to direct the TCCA to the location in the
docket where the trial court formally overruled Amador's motion to
suppress the in-court identification testimony; he did not search the
record for this information; and he did not file a motion for rehearing
identifying the docket entry in question. State Habeas Evidentiary
Hearing Tr., Vol. II, 10-35.
2. Federal Habeas Proceedings
Amador filed his 28 U.S.C. § 2254 petition for
federal habeas corpus relief in the United States District Court for the
Western District of Texas on May 24, 2002, and filed an amended and
supplemental habeas petition on May 2, 2003. He alleged sixty total
claims for relief. On September 3, 2003, the state filed a motion for
summary judgment. The district court ultimately granted the state's
motion for summary judgment, denying all of Amador's claims for relief.
Amador v. Dretke, No. SA-02-CA-230-XR (Apr. 11, 2005) [hereinafter
“Dist. Ct. Order”].
However, the district court granted a certificate of
appealability (“COA”) on two of those claims: (1) that Amador received
ineffective assistance of counsel on appeal because his counsel failed
to assign as error the trial court's admission of his statement
identifying the caliber of guns used in the shooting; and (2) that
Amador received ineffective assistance of counsel on appeal because his
counsel failed properly to present a challenge to the state trial
court's denial of Amador's pretrial motion to suppress the in-court
identification testimony of Garza.
a. Amador's Oral Statement Identifying the Caliber
of the Guns Used in the Crime
Citing reasons different from those cited in the
TCCA's opinion, the district court denied Amador's claim regarding his
statement identifying the caliber of guns. As a preliminary matter, the
district court noted that when the TCCA denied this point of error, it
essentially held that Amador's counsel had procedurally defaulted on
this claim by failing to re-urge his Article 38.22 objection at trial
and asserting only a hearsay objection instead.
Further, the court noted that the state habeas
court's reasoning on this point was likely erroneous because the
district court's “independent research has disclosed no other instances
other than [Amador's] case in which a Texas appellate court has applied
such a rule of procedural default to foreclose merits review of an
Article 38.22 claim following a trial court's formal denial of a
pretrial motion to suppress.” Dist. Ct. Order at 127.
Therefore, the district court proceeded to review the
merits of Amador's claim pursuant to Ford v. Georgia, 498 U.S. 411,
423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (holding that application
of state procedural default rules bars federal habeas merits review of a
claim only when the state procedural default rule is firmly in place and
Reviewing the merits of the claim, the district court
noted that, under its review of the relevant Texas case law, Amador's
statement was likely inadmissible under Article 38.22 of the Texas Code
of Criminal Procedure.
However, applying the Texas harmless-error principles
that governed at the time of Amador's direct appeal, the court held that,
even if Amador's statement had been inadmissible, any error in admitting
the statement would have been harmless and therefore Amador could not
prove the prejudice necessary to establish ineffective assistance of
counsel under Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
b. Garza's In-Court Identification of Amador
The district court also denied Amador's claim
regarding Garza's in-court identification testimony, holding that Amador
failed to show that Garza's identification testimony was inadmissible
and therefore his counsel's failure to properly preserve this point of
error did not constitute prejudice under Strickland.
First, with regard to the hypnosis procedure, the
district court stated that Amador “never alleged any specific facts, nor
presented any evidence, before the state habeas court establishing that
any of the procedures employed ... were unduly suggestive or otherwise
tainted Esther Garza's subsequent in-court identification of [Amador] as
one of her and Ayari's assailants.” Dist. Ct. Order at 83.
Second, the court determined that, even if the show
up by its very nature had been suggestive, Garza's identification of
Amador had nonetheless been reliable under Manson v. Brathwaite, 432 U.S.
98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The district court
accordingly rejected Amador's claim, finding that the TCCA reasonably
applied the law to find that Garza's identification was admissible and
there was no prejudice under Strickland.
On May 10, 2005, Amador filed a timely notice of
appeal with this court.
II. STANDARD OF REVIEW
This habeas proceeding is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) because Amador
filed his § 2254 habeas petition on December 12, 1997, after AEDPA's
effective date of April 24, 1996. See Fisher v. Johnson, 174 F.3d 710,
711 (5th Cir.1999). This court has jurisdiction to resolve the merits of
Amador's habeas petition because, as stated above, the district court
granted him a COA. See Dist. Ct. Order at 123-28; see also 28 U.S.C. §
2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029,
154 L.Ed.2d 931 (2003) (explaining that a COA is a “jurisdictional
prerequisite” without which “federal courts of appeals lack jurisdiction
to rule on the merits of appeals from habeas petitioners”).
We review de novo the district court's grant of
summary judgment denying a state petitioner's request for habeas relief.
Ogan v. Cockrell, 297 F.3d 349, 355-56 (5th Cir.2002); Fisher v. Texas,
169 F.3d 295, 299 (5th Cir.1999). We review the district court's
conclusions of law de novo and its findings of fact, if any, for clear
error. Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir.2002). Moreover,
“ ‘a federal habeas court is authorized by Section 2254(d) to review
only a state court's ‘decision,’ and not the written opinion explaining
that decision.' ” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003)
(quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc)).
Under AEDPA, a federal court may not grant a writ of
habeas corpus “with respect to any claim that was adjudicated on the
merits in State court proceedings” unless the petitioner shows that the
state court's adjudication “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 that
the state court's adjudication of a claim “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)(1); Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000).
A state court's decision is “contrary to” clearly
established federal law if (1) the state court “applies a rule that
contradicts the governing law” announced in Supreme Court cases, or (2)
the state court decides a case differently than the Supreme Court did on
a set of materially indistinguishable facts. Mitchell v. Esparza, 540
U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003).
A state court's application of clearly established
federal law is “unreasonable” within the meaning of AEDPA when the state
court identifies the correct governing legal principle from Supreme
Court precedent, but applies that principle to the case in an
objectively unreasonable manner. Wiggins v. Smith, 539 U.S. 510, 520,
123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
A writ of habeas corpus may also issue if the state
court's adjudication of a claim “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)(2). Under
AEDPA, state-court factual findings are “presumed to be correct” unless
the habeas petitioner rebuts the presumption through “clear and
convincing evidence.” Id. § 2254(e)(1); see Miller v. Johnson, 200 F.3d
274, 281 (2000).
Both of Amador's ineffective assistance of appellate
counsel claims are governed by the test set forth in Strickland, 466 U.S.
at 687-88, 104 S.Ct. 2052. To prevail on a claim of ineffective
assistance of counsel, a habeas petitioner first must show that
counsel's performance was deficient. Id. Counsel's performance is
deficient if it falls below an objective standard of reasonableness. Id.
A court's review of counsel's conduct is deferential, presuming that
“counsel's conduct falls within the wide range of reasonable
professional assistance.” Id. at 689, 104 S.Ct. 2052.
While counsel need not raise every nonfrivolous
ground available on appeal, “a reasonable attorney has an obligation to
research relevant facts and law, or make an informed decision that
certain avenues will not prove fruitful .... Solid, meritorious
arguments based on directly controlling precedent should be discovered
and brought to the court's attention.” United States v. Williamson, 183
F.3d 458, 462-63 (5th Cir.1999).
Once the petitioner establishes deficient performance,
he then must show that counsel's objectively unreasonable performance
prejudiced the petitioner. Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
A petitioner suffers prejudice if, but for the deficient performance,
the outcome of the trial-or, in this case, the appeal-would have been
Although Strickland itself involved ineffective
assistance of trial counsel, the Strickland analysis applies equally to
claims of ineffective assistance of appellate counsel. See Mayabb v.
Johnson, 168 F.3d 863, 869 (5th Cir.1999) (applying Strickland to an
ineffective assistance of appellate counsel claim and noting that
“[w]hen we do not find prejudice from the trial error, by extension, we
cannot find prejudice from an appellate error predicated on the same
issue”); see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746,
145 L.Ed.2d 756 (2000) (noting that Strickland is the appropriate
standard to apply to claims of ineffective counsel on appeal).
A. Amador's Oral Statement Identifying the Caliber
of Guns Used in the Shootings
Applying Strickland, we first must determine whether
the failure of Amador's appellate counsel to assign as error the court's
admission of Amador's statement identifying the caliber of the guns
constituted deficient performance.FN14 On its face, the applicable
statute mandates that an unrecorded, inculpatory statement made by the
accused that is the product of a custodial interrogation is admissible
if the statement “contains assertions of facts or circumstances that are
found to be true and which conduce to establish the guilt of the accused,
such as the finding of secreted or stolen property or the instrument
with which he states the offense was committed.” Tex.Crim. Proc.Code Ann.
Citing a number of TCCA cases interpreting Article
38.22, section 3, Amador contends that the TCCA erred when it held that
the statement was admissible because this provision applies only to
statements that provide facts that were unknown to the police at the
time the statement was made and were later found to be true. See Romero
v. Texas, 800 S.W.2d 539, 545 (Tex.Crim.App.1990) (“The reliability
demanded by Sec. 3 is founded upon [the] premise [ ] that the oral
confession contain facts that lead to the discovery of items or
information previously unknown to the police.”); see also Dansby, 931
S.W.2d at 298-99; Port v. Texas, 791 S.W.2d 103, 108 (Tex.Crim.App.1990).
Amador argues that, contrary to the finding made by
the TCCA in this case, his statement was inadmissible and did not fall
under the Article 38.22, section 3 exception because, at the time he
made the statement on April 14, 1994, the police already knew the
caliber of the guns used in the shootings.
Specifically, Amador correctly notes that the record
reflects that, on January 4, 1994, a .25 caliber bullet was removed from
Garza's nasal cavity the day of the shootings, the police found a .25
caliber shell casing in the taxicab and a .380 caliber shell casing at
the crime scene, and the Bexar County Sheriff's Department issued a
press release stating that a .380 caliber gun was used in the crime.
FN14. Like the district court, we decline to treat
this claim as procedurally defaulted in light of the TCCA's holding that
“an argument based upon Art. 38.22 ... was precluded by the hearsay
objection lodged at trial” despite Amador's pretrial objection to the
admission of the statement on Article 38.22 grounds. State Habeas Order
We similarly conclude that even if this ruling were
properly characterized as one of procedural default and review would
otherwise be barred on independent and adequate state grounds, it does
not meet the criteria for procedural default because such a rule is
neither firmly in place nor regularly followed in Texas state courts.
See Ford, 498 U.S. at 423-24, 111 S.Ct. 850. The state points to no
cases supporting the existence of such a rule, and we have found none.
We therefore address the TCCA's alternative holding on the merits.
Because we hold that the TCCA's determination that
Amador failed to establish the prejudice prong of the Strickland test
was not an unreasonable application of clearly established law, we
pretermit a decision on the deficient performance prong of Strickland
and assume without deciding that Amador has shown deficient performance.
See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[A] court need not
determine whether counsel's performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged
deficiencies .... If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”).
Amador's Strickland claim fails because he cannot
establish that, but for this deficient performance, the outcome of his
appeal would have been different. The prejudice inquiry in this case
turns on a question of Texas state law: whether the statement was in
fact admissible at trial under Article 38.22, section 3 of the Texas
Code of Criminal Procedure.
To be sure, some Texas courts have applied a gloss on
Article 38.22, section 3, holding that provision applicable only to
statements containing facts that were unknown to the police at the time
and later found to be true; however, every Texas state court to have
addressed the issue in the instant case-from the trial court to the
state habeas court to the TCCA-has held that the statement was in fact
admissible under the broad language of this provision. See, e.g., State
Habeas Order at 19 (holding that “the statements in question were
admissible as an exception to the prohibition outlined by” Article
Although other Texas courts have interpreted Article
38.22, section 3 differently than the state habeas court did in this
case, “in our role as a federal habeas court, we cannot review the
correctness of the state habeas court's interpretation of state law.”
Young v. Dretke, 356 F.3d 616, 628 (5th Cir.2004) (declining to review
the state habeas court's determination of the validity of a Texas
statute under the Texas constitution in the context of a Strickland
claim); see also Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 604,
163 L.Ed.2d 407 (2005) (“We have repeatedly held that a state court's
interpretation of state law ... binds a federal court sitting in habeas
corpus.”); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas corpus
court to reexamine state-court determinations on state-law questions.”);
Gibbs v. Johnson, 154 F.3d 253, 259 (5th Cir.1998) (“As a federal court
in a habeas review of a state court conviction, we cannot review state
rulings on state law.”).
Therefore, because the state habeas court held that
Amador's statement identifying the caliber of the guns was admissible
under Texas law, the result of Amador's appeal would not have been
different had his appellate counsel raised this claim. Accordingly, the
TCCA's determination that Amador did not receive ineffective assistance
of appellate counsel under Strickland was not an unreasonable
application of federal law.
B. Garza's In-Court Identification of Amador
Amador also argues that he received ineffective
assistance of counsel when his appellate counsel failed to identify the
docket entry reflecting that the trial court had entered an adverse
ruling on his objection to the admission of Garza's in-court
identification testimony, thereby preserving the objection for appeal.
Under the first prong of the Strickland test, the
conduct of Amador's appellate counsel was deficient because it fell
below an objective standard of reasonableness. During the state habeas
evidentiary hearing, Amador's appellate counsel testified to his own
conduct during the direct appeal.
By his own admission, appellate counsel knew that the
TCCA's holding that the alleged error had not been preserved was
incorrect; despite this knowledge, counsel did not respond to the
assertion in the state's appellate brief that the trial court had not
ruled on the objection, did not attempt to locate the docket entry
reflecting the trial court's adverse ruling, and did not attempt to
correct the misconception in the subsequent petition for rehearing.
State Habeas Evidentiary Hearing Tr., Vol. II, 10-35.
Moreover, Amador's counsel admitted that his failure
to do these things served “no strategic purpose.” Id. at 21; see Busby
v. Dretke, 359 F.3d 708, 715 (2004) (“Strategic decisions ... can rarely
constitute ineffective assistance of counsel, so long as they are based
on reasonable investigations of the applicable law and facts.”) (citing
Strickland, 466 U.S. at 691, 104 S.Ct. 2052) (emphasis added); Moore v.
Johnson, 194 F.3d 586, 604 (5th Cir.1999) (“The Court is ... not
required to condone unreasonable decisions parading under the umbrella
of strategy, or to fabricate tactical decisions on behalf of counsel
when it appears on the face of the record that counsel made no strategic
decision at all.”).
Given that counsel knew in advance that the state
would argue that the court had not entered an adverse ruling on the
objection, that counsel's failure to investigate was a result of
negligence rather than trial strategy, and that the information to rebut
the state's argument was easily accessible through a copy of the trial
docket, counsel's conduct fell below an objective standard of
reasonableness. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162
L.Ed.2d 360 (2005) (holding that counsel's performance fell below an
objective standard of reasonableness when counsel failed to examine
readily available files containing mitigating evidence despite notice
that the state intended to use information from those files in
prosecuting counsel's client).
However, Amador's ineffective assistance of counsel
claim fails because he cannot show that he suffered prejudice from his
counsel's deficient conduct. Relevant to whether Amador suffered
prejudice is whether Garza's in-court identification testimony was
inadmissible because it was tainted by out-of-court identification
procedures that violated Amador's due process rights under the Fifth and
Out-of-court identification procedures violate a
defendant's due process rights if those procedures are (1) unnecessary
and suggestive, and (2) unreliable. See Brathwaite, 432 U.S. at 114, 97
S.Ct. 2243 (enunciating the two-prong test to determine the
admissibility of in-court identification testimony based on out-of-court
identification procedures); United States v. Atkins, 698 F.2d 711, 713
(5th Cir.1983) (applying the two-prong Brathwaite test to possibly
suggestive identification procedures).
In this case, the show up was unnecessary and
suggestive under the first prong of the Brathwaite test. Requiring Garza
to view Amador through the cardboard apparatus while Amador was standing
in the homicide office of the Bexar County Sheriff's Department was
suggestive because the procedure encouraged Garza to identify the person
she was viewing as the suspect.
Indeed, the Supreme Court has acknowledged that show
ups such as this one are inherently suggestive procedures, noting,
“[t]he practice of showing suspects singly to persons for the purpose of
identification, and not as part of a lineup, has been widely condemned.”
Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967); see also United States v. Wade, 388 U.S. 218, 228-30, 87 S.Ct.
1926, 18 L.Ed.2d 1149 (1967) (noting that show ups are inherently
suggestive); cf. United States v. Guidry, 406 F.3d 314, 319 (5th
Cir.2005) (holding that the show up procedure was not suggestive where
the show up was not one-on-one, but rather was the equivalent of a
Moreover, although show ups often will not violate a
defendant's due process rights when they are performed out of necessity
or urgency, Detective Morales testified that there was no exigency or
urgent need for performing the January 24, 1994, show up at the
sheriff's department and that they could have used a lineup procedure
but chose not to. Trial Tr. Vol. XX, p. 194; cf. Stovall, 388 U.S. at
302, 87 S.Ct. 1967 (holding that a show up did not violate the
defendant's due process rights when the only witness who could identify
or exonerate him was in the hospital near death); Livingston v. Johnson,
107 F.3d 297, 309 (5th Cir.1997) (holding that a show up did not violate
defendant's due process rights when the “exigency of the circumstances”
made the procedure necessary). FN15.
Amador contends that the hypnosis session that Garza
underwent in addition to the show up was unnecessary and inherently
suggestive. The Supreme Court has acknowledged the suggestive nature of
hypnosis, observing that [t]he most common response to hypnosis, however,
appears to be an increase in both correct and incorrect recollections
.... Three general characteristics of hypnosis may lead to the
introduction of inaccurate memories: the subject becomes “suggestible”
and may try to please the hypnotist with answers the subject thinks will
be met with approval; the subject is likely to “confabulate,” that is,
to fill in details from the imagination in order to make an answer more
coherent and complete; and, the subject experiences “memory hardening,”
which gives him great confidence in both true and false memories, making
effective cross-examination more difficult. Rock v. Arkansas, 483 U.S.
44, 59-60, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).
While there is no evidence in this case that the
hypnosis procedure alone was explicitly suggestive, the very fact that
it happened shortly after another inherently suggestive procedure (i.e.,
the show up) is relevant to the overall suggestiveness of the
identification procedures under the totality of the circumstances. See
Stovall, 388 U.S. at 302, 87 S.Ct. 1967 (analyzing the totality of the
circumstances to determine if an identification procedure violated due
process). Nevertheless, there is no evidence in this case that the
hypnosis procedure alone was explicitly suggestive or that it became so
when it occurred shortly after the show up.
However, the TCCA did not unreasonably apply clearly
established federal law when it held that the identification testimony
at issue in this case was nonetheless admissible because it was reliable
under the second prong of the Brathwaite test. See Brathwaite, 432 U.S.
at 114, 97 S.Ct. 2243 (“[R]eliability is the linchpin in determining the
admissibility of identification testimony”).
Under the reliability prong, even if an
identification procedure is unnecessary and suggestive in violation of a
defendant's due process rights, the resulting testimony is admissible if
the identification is nonetheless reliable in light of the totality of
the circumstances; i.e., if it poses “no substantial likelihood of
irreparable misidentification.” Id. at 116, 97 S.Ct. 2243; Stovall, 388
U.S. at 302, 87 S.Ct. 1967 (“[A] claimed violation of due process of law
depends on the totality of the circumstances surrounding it.”); see also
Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
The Brathwaite Court articulated five factors that
courts should apply in evaluating the reliability of an identification
procedure: (1) the witness's opportunity to view the suspect; (2) the
witness's degree of attention; (3) the accuracy of the witness's initial
description of the suspect; (4) the witness's level of certainty; and
(5) the time between the crime and the trial confrontation. Brathwaite,
432 U.S. at 114-16, 97 S.Ct. 2243; see also Neil, 409 U.S. at 198, 93
S.Ct. 375; United States v. Hefferon, 314 F.3d 211, 217-18 (5th
Cir.2002) (applying the Brathwaite factors to determine that the show up
had sufficient indicia of reliability for the witness's identification
testimony to be admissible at trial).
Garza testified at both the pretrial hearing and at
trial before the jury that she had a sufficient view of Amador's face
when Amador crossed in front of the taxicab's headlights on his way to
retrieve money from Martinez's house and when Amador was inside the cab
talking to her and Ayari. Trial Tr., Vol. III, pp. 11-15, 60-61; id. at
Vol. XVIII, pp. 109-15, 193, 214, 218. Garza emphasized that she got a
“good look” at Amador's face during Amador's walk back to the taxicab
from Martinez's house. Id. at Vol. III, p. 46; id. at Vol. XVIII, p.
Although her initial estimation of Amador's height
was incorrect, Garza explained that she was slouched down during the car
ride and thus had overestimated Amador's height from that angle. Other
than this height discrepancy, Garza's description of the suspect
remained certain and unchanged from January 10, 1994, through the end of
the trial; indeed, Garza testified at trial that Amador had changed his
appearance dramatically by shaving his head between the time of the
shootings and the trial.
Moreover, despite the suggestiveness of the January
24, 1994, show up, Garza refused to identify Amador on that day based on
the height discrepancy and Amador's shaved head, which was different
from the full head of dark hair that Amador had on the night of the
shootings. Id. at Vol. III, pp. 24-26, 60-61; id. at Vol. XVIII, pp.
145, 154, 229, 232.
In fact, Garza explained that she was reluctant to
identify anyone until she was confident in her identification; she
explained that when she finally identified Amador as the male passenger
in the cab that night-two months after the hypnosis session and three
months after the shootings-she “had all that time to think about it and
[she] just pictured him and [she] just [knew] ... it's him.” Id. at Vol.
XVIII, p. 248.
As in Brathwaite, we cannot say that under all the
circumstances of this case there is a very substantial likelihood of
misidentification .... Short of that point, such evidence is for the
jury to weigh. We are content to rely upon the good sense and good
judgment of American juries, for evidence with some element of
untrustworthiness is customary grist for the jury mill. Juries are not
so susceptible that they cannot measure intelligently the weight of
identification testimony that has some questionable feature. Brathwaite,
432 U.S. at 116, 97 S.Ct. 2243.
In this case, the jury heard extensive testimony and
cross examination regarding the identification procedures and Garza's
initial reluctance to identify Amador, not only from Garza but also from
Sergeant Marin and Detective Morales. Given that Garza's identification
of Amador was ultimately reliable under the Brathwaite factors, and
because the jury was able to make an informed decision regarding the
reliability of that identification based on the copious evidence
presented at trial, the TCCA's application of Strickland was not
unreasonable because no prejudice ensued despite the suggestiveness of
the identification procedures.
Moreover, even if the identification testimony should
have been excluded under Brathwaite because the identification was
ultimately unreliable, there still would not have been prejudice under
Strickland given the weight of the other inculpatory evidence offered at
Even without Garza's identification of Amador as the
male passenger in the cab on the night of the shootings, the jury heard
Amador's voluntary statement describing what he “would have” done had he
been involved in the shootings and concluding that “[i]f all this stuff
about the murder is true and they can prove it in court, then I will
take my death sentence.”
The jury also heard testimony from Martinez, who
described Amador's confession to her detailing what happened on the
night of the shootings, mentioned Amador's prior statement that he
wanted to do something “crazy involving a taxicab,” and testified that
Amador had written her a letter from prison warning her not to testify.
The jury also heard about the Crime Stoppers tip that
led to Amador's arrest and Amador's accurate identification of the
caliber of the guns used in the shooting once in custody. Moreover,
witness Esther Menchaca testified, placing Amador and Rivas at the scene
of the abandoned taxicab shortly after the shootings occurred in the
early morning of January 4, 1994, and explaining that she had previously
identified Amador from a photo array.
Given the great weight of additional evidence against
Amador, we cannot say that there is a reasonable probability that, but
for the admission of the identification evidence, the outcome of the
trial would have been different. See Strickland, 466 U.S. at 695, 104
Accordingly, the TCCA did not unreasonably apply
clearly established federal law when it held that counsel's failure to
argue this point adequately on appeal does not rise to the level of
constitutional error. See Mayabb, 168 F.3d at 869 (“When we do not find
prejudice from the trial error, by extension, we cannot find prejudice
from an appellate error predicated on the same issue.”).
For the foregoing reasons, we hold that the TCCA did
not unreasonably apply clearly established federal law as announced by
the Supreme Court. We therefore AFFIRM the district court's denial of
Inmate John Joe Amador, aka "Ash", discusses his dreams and visions with
journalist Dave Maass.