Wednesday, September 25, 2013
Media Advisory: Arturo E. Diaz scheduled for execution

AUSTIN – Pursuant to a court order from 370th District Court of Hidalgo County, Arturo Eleazar Diaz is scheduled for execution after 6 p.m. on Sept. 26, 2013. On Feb. 16, 2000, Diaz was sentenced to die for the robbery-related capital murder of Michael Ryan Nichols.

FACTS OF THE CRIME

The Fifth Circuit Court of Appeals described the murder of Michael Ryan Nichols as follows: On April 1, 1999, Nichols was in McAllen, Texas, on business. That night, the night before he was murdered, Nichols went out with an exotic dancer named Danielle Thomas who performed exotic dances at parties and private dances. While they were out, a teller machine destroyed Nichols’ bank card and Thomas loaned him $100. When the nightclubs closed at 2:00 a.m., Nichols and Thomas returned to Thomas’ trailer, where they met up with Diaz and a woman named Arcelia Reyes. The four watched movies until 4:00 or 5:00 a.m., when Thomas and Reyes, who provided security for Thomas, borrowed Nichols’ truck to go to a motel so Thomas could dance. Reyes returned the truck to Nichols before the dance ended. Thomas called the trailer several times during the day, speaking sometimes to Diaz and sometimes to Nichols. When Thomas and Reyes returned to the trailer at 8:00 p.m. on April 2, the two men had left.

John Shepherd, a coworker of Nichols who shared a company-owned apartment in McAllen with him, later testified that Nichols, Diaz, and a man named Joe Cordova arrived at the McAllen apartment between 6:00 and 7:00 p.m. on April 2. Shepherd felt uncomfortable around Nichols’ companions. He noticed that Diaz had tattoos on his forearms. Shepherd left to buy beer and cigarettes. When he returned, he noticed that Nichols’ truck was in the center of the parking lot, a fact that would become important later. Nichols, Diaz, and Cordova were watching television in the living room. Shepherd went to bed. While Shepherd was in bed, Thomas and Reyes stopped by the apartment. Thomas testified that she had come to recover the $100 she had lent to Nichols on April 1. She saw that Nichols had two fifty dollar bills in his wallet. He gave her one and kept the other. After the murder, the second fifty dollar bill was not found in Nichols’ wallet, or anywhere else for that matter. Instead, a piece of paper with Diaz’s telephone number and first name were found in Nichols’ wallet.

Later that night, Shepherd was awakened by a loud noise. He went to the living room and found Nichols bleeding from a wound in his arm. Diaz was holding a large butcher knife. After Shepherd asked three times, “What’s going on?” Nichols said, “Do what he says, get the money and they’ll leave.” Cordova said some things in Spanish and in English about Shepherd getting money; and Diaz spoke angrily in Spanish. Diaz then grabbed Shepherd’s shirt and pushed him down the hall to his room. Shepherd got some cash from his pants pocket and gave it to Diaz. Diaz checked the pants for more money, then grabbed Shepherd’s shirt and led him back to the living room. Cordova told Shepherd to sit on the couch and do what he was told. Diaz and Cordova subsequently put Nichols on the floor and bound and gagged him with shoelaces and strips of bedding.

The phone rang, and Cordova answered it. Shepherd later testified that Cordova told the caller to “‘come to get us, or come over here,’ something like that. . . . Pretty quick there was a knock on the door.” Thomas testified that Reyes had received a phone call around midnight and that she had borrowed Thomas’ car and left for about forty-five minutes. Consistent with Thomas’ testimony, Shepherd testified that a large Hispanic woman arrived at the apartment shortly after the phone call. The woman asked Cordova and Diaz what was going on, and Cordova told her something in Spanish. Shepherd testified that the woman did not look happy with Cordova’s response. Cordova told the woman to face the door, and he told Shepherd not to look at her.

Diaz and Cordova beat Nichols. They put Shepherd on the floor and bound and gagged him, then returned their attention to Nichols. Cordova lifted Nichols up and held him while Diaz stabbed Nichols in the torso numerous times. An autopsy revealed perforations of Nichols’ [… major organs and] lacerations to Nichols’ scalp, neck, and flanks. When Cordova noticed that Shepherd had freed one of his hands, he and Diaz beat Shepherd and stabbed him. Shepherd pretended to be dead and lost consciousness.

When Shepherd awoke, the apartment was dark. The evidence indicates that it was between 3:00 and 4:00 a.m. Shepherd freed himself from his bindings and left the apartment. He noticed Nichols’ truck at the apartment gate with the driver’s door open. At Shepherd’s request, a neighbor called the police. When the police arrived at the apartment complex, they found the gate locked and Nichols’ truck parked next to the keypad box inside the gate. There was blood in the truck, bedding material on the ground, and a footprint on top of the keypad box that was later found to match Diaz’s shoe. Nichols was found dead in the apartment; a beer bottle with Diaz’s DNA on it was found on the floor next to him.

A man named Manuel Montes later testified that Cordova phoned him at about 4:00 a.m. on April 3 and asked Montes to pick him up from another neighborhood. Cordova was Montes’ neighbor and the older brother of Montes’ best friend. Montes picked up Cordova, Diaz, and a large woman and took them over to his house. Cordova had a bloody shirt wrapped around his arm, and when he was arrested, wounds were discovered on his arms and thigh. After daylight, Cordova borrowed a pair of Montes’ pants so that he could go home and get pants for himself and Diaz. After Cordova and Diaz changed clothes, Cordova told Montes he would take care of the trash bag, which presumably contained the dirty clothes. Police later found a trash bag of clothing in Montes’ home; the clothing was stained with Cordova’s and Nichols’ blood. Montes also testified that he overheard Diaz telling some other men, in Cordova’s presence, about a murder. According to this testimony, Cordova held the man, and Diaz stabbed him.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of trial, the State presented evidence that Diaz had engaged in misconduct while in the county jail; that his misconduct included fighting and refusing to go to court; that deputies had caught Diaz trying to dig a hole through the wall of his cell; that Diaz was housed in a unit used to hold members of the Pistoleros gang; and that Diaz had committed other assaults and homicides.

Dr. John Edward Pinkerman, a psychologist, testified for Diaz. Prior to testifying, Dr. Pinkerman met with Diaz twice to conduct a psychological evaluation. He documented his findings in a written report. According to Dr. Pinkerman, Diaz’s past medical history included head trauma from being knocked un-conscious during fights and a head injury suffered in a car accident. Dr. Pinkerman indicated that Diaz’s history of head trauma could impair his ability to control and regulate his judgment and perceive reality; that Diaz has low-average intelligence and the verbal ability of an 11-year old; that Diaz is prone to feeling guilty and might act out to incur punishment; and that Diaz has a history of antisocial behavior as a child that correlates with a high probability of adult criminal behavior.

Over defense’s objection, the State introduced Dr. Pinkerman’s written report into evidence. The report included Dr. Pinkerman’s conclusion that Diaz “approached the assessment in somewhat of an exaggerated manner which may reflect an inability to cooperate with the testing or malingering in an attempt to present himself with the false claim of mental illness”; that Diaz was not mentally ill; and that Diaz’s profile matches that of Type C offenders, which Dr. Pinkerman described as the most difficult criminal offenders – those who are distrustful, cold, irresponsible, and unstable. Also, on cross-examination, Dr. Pinkerman testified that Diaz had refused to discuss the facts of the offense with him on the advice of Diaz’s attorney. After Dr. Pinkerman testified, the defense called no other witnesses.

PROCEDURAL HISTORY

On Oct. 20, 1999, a Hidalgo County grand jury indicted Diaz for the robbery-related capital murder.
On Feb. 11, 2000, a Hidalgo County jury found Diaz guilty of capital murder.
On Feb. 16, 2000, after a punishment hearing, the trial court sentenced Diaz to death.
On Jan. 14, 2002, Diaz applied for state habeas corpus relief.
On Sept. 18, 2002, the Texas Court of Criminal Appeals affirmed Diaz’s conviction and the sentence.
On Sept. 18, 2002, the Court of Criminal Appeals denied habeas corpus relief.
On July 16, 2004, Diaz sought federal habeas corpus relief.
On Sept. 14, 2005, the federal district court denied habeas corpus relief.
On April 11, 2007, the 5th Circuit U.S. Court of Appeals granted permission to appeal one issue.
On July 3, 2007, the Fifth Circuit court affirmed the federal district court’s denial of relief.
On Feb. 25, 2008, the U.S. Supreme Court denied certiorari review,
On Aug. 27, 2013, Diaz sought relief from the district court’s judgment denying habeas corpus relief.
On Sept. 3, 2013, Diaz sought a stay of execution in federal district court.
On Sept. 19, 2013, Diaz filed a motion for a stay of execution and an application for a state writ.
On Sept. 20, 2013, the federal district court denied Diaz’s motion for habeas relief.
On Sept. 23, 2013, the Texas Court of Criminal Appeals denied Diaz’s application for a state writ.
On Sept. 23, 2013, Diaz appealed the federal district court's decision to the U.S. Court of Appeals.
On Sept. 25, 2013, the Fifth Circuit court affirmed the federal district court’s denial of Rule 60(b) relief and denied Diaz’s motion for stay of execution.

Texas Execution Information Center by David Carson.

Arturo Eleazar Diaz, 37, was executed by lethal injection on 26 September 2013 in Huntsville, Texas for the murder and robbery of a man in his apartment.

On the night of 1 April 1999, Michael Nichols, 25, who was in McAllen on business, was out with exotic dancer Danielle Thomas. After an automated teller machine destroyed Nichols' bank card, Thomas loaned him $100. Thomas brought Nichols back to her trailer after the nightclubs closed at 2:00 a.m. There they met up with Diaz, then 33, and Arcelia Reyes. The four watched movies until 4:00 or 5:00 a.m., when Reyes borrowed Nichols' truck to take Thomas to perform a dance at a motel. Reyes subsequently returned Nichols' truck and then rejoined Thomas at the motel.

Between 6:00 and 7:00 p.m. that evening - a Friday - Nichols, Diaz, and Jose Cordova, 25, arrived at an apartment owned by Nichols' employer. John Shepherd, a co-worker of Nichols, was there. Shepherd left to buy beer and cigarettes. When he returned, Nichols, Diaz, and Cordova were watching television in the living room. Shepherd went to bed. Sometime after 8:00 p.m, Thomas and Reyes stopped by so that Thomas could recover the $100 she had loaned Nichols. He opened his billfold and gave Thomas a $50 bill. She saw that Nichols had another $50 bill in his billfold, but he kept it. The women then left the apartment.

Later that night, Shepherd was awakened by a loud noise. As he later testified, he went to the living room and found Nichols bleeding from a wound in his arm. Diaz was holding a large butcher knife. After Shepherd asked three times “What’s going on?,” Nichols said, “Do what he says; get the money and they’ll leave.” Cordova said some things in Spanish and English about Shepherd getting money. Diaz spoke angrily in Spanish. Diaz then grabbed Shepherd’s shirt and pushed him down the hall to his room. Shepherd got some cash from his pants pocket and gave it to Diaz. Diaz checked the pants for more money, then grabbed Shepherd’s shirt and led him back to the living room. Cordova told Shepherd to sit on the couch and do what he was told. Diaz and Cordova then put Nichols on the floor and bound and gagged him with shoelaces and strips of bedding.

Around midnight, someone called the apartment. Cordova answered the phone and told the caller to come over. Shepherd testified that soon after the phone call, "a large Hispanic woman" was at the door. She asked Cordova and Diaz what was going on. Cordova answered in Spanish, and Shepherd saw that she did not look happy with his response. Cordova told the woman to face the door, and told Shepherd not to look at her.

Next, Diaz and Cordova beat Nichols. They put Shepherd on the floor and bound and gagged him, and then returned their attention to Nichols. Cordova lifted him up and held him, while Diaz stabbed him in the torso numerous times, killing him. When Cordova noticed that Shepherd had freed one of his hands, he and Diaz beat him and stabbed him. Shepherd pretended to be dead, then lost consciousness. Shepherd awoke between 3:00 and 4:00 a.m. The apartment was dark. He freed himself from his bindings and left the apartment. Shepherd testified that when he returned from the store the previous evening, he noticed that Nichols' truck was in the center of the parking lot. Now, however, it was at the apartment gate, with the driver's door open. Shepherd then had a neighbor call the police.

The police found Nichols' truck parked next to the keypad box inside the apartment's locked gate. There was blood in the truck and bedding material on the ground. A footprint on top of the keypad box was later matched to Diaz's shoe. Nichols' body was in the apartment. His billfold was empty. A beer bottle with Diaz's DNA on it was found on the floor next to him. An autopsy showed that Nichols was stabbed 94 times. His liver, kidney, lungs, and heart had been perforated. A knife thrust had fractured a rib and broken the tip off of the knife, lodging it in the rib. The autopsy also showed lacerations on Nichols' scalp, neck, and flanks.

At around 4:00 a.m., Cordova called his neighbor, Manuel Montes, to pick him up from another neighborhood. Montes testified that he picked up Cordova, Diaz, and a large woman and took them to his house. Cordova had a bloody shirt wrapped around his arm. Cordova borrowed a pair of pants from Montes and changed into them, then went to his home to get pants for himself and Diaz. He and Diaz changed clothes at Montes' home. Police later found a trash bag in Montes' home, containing clothing stained with Cordova's and Nichols' blood. Montes also testified that he overheard Diaz telling some other men, in Cordova's presence, that they had murdered a man. He heard Diaz say he stabbed the man while Cordova held him.

Diaz had previous felony convictions for theft in July 1994 and criminal mischief in September 1994. He pleaded guilty to both crimes and was given concurrent seven sentences. He was then arrested later and pleaded guilty of burglary of a building. He pleaded guilty and was sentenced to two years' probation, concurrent with his other sentences. He spent fifteen months in prison from May 1995 to August 1996, then was released on parole.

In order for a killing to qualify as capital murder, one or more aggravating factors, such as robbery or rape, must be present. At Diaz' trial, the defense asserted that the state failed to prove that Nichols' murder was committed in connection with a robbery or attempted robbery.

The defense also called a psychologist, Dr. Edward Pinkerman, to testify. Pinkerman met with Diaz twice to conduct a psychological evaluation. Pinkerman testified that past head trauma Diaz suffered could impair his judgement and perception of reality. Pinkerman also testified that Diaz had the verbal ability of an 11-year old. In his written evaluation, however, Pinkerman stated that Diaz may have exaggerated his behavior during his psychological evaluation so as to build a false case for mental illness.

A jury found Diaz guilty of capital murder in February 2000 and sentenced him to death. He was also found guilty of attempted capital murder and aggravated robbery, with life sentences for both of those convictions. The Texas Court of Criminal Appeals affirmed his death sentence in September 2002. All of his subsequent appeals in state and federal court were denied.

Jose Luis Cordova, who had two previous convictions for burglary and was on parole at the time of the killing, was convicted of capital murder and given a life sentence. He is also serving a 40-year sentence for a murder committed about a week before Nichols'. In that case, the victim's head and face were stomped and beaten with a hammer.

"I did it," Diaz said in an interview from death row, "but my mind says it wasn't me." "I've really never been a violent person," Diaz said. "I really don't remember what happened that night right, but everybody was having fun and so high. You don't know what happened until later on. They were just looking for me, you know?" Diaz also admitted being present for the other murder that Cordova was convicted of, but he declined to say anything else about it.

Diaz was direct about what he would do differently. "All those youngsters out there, doing drugs and stuff, I'd just tell them, stay out of drugs and educate yourselves, you know. Because I had the chance. I didn't do it. I regret all that now. And they need to understand there are consequences ... Texas is not playing. It's serious." "I feel bad for the victim's family," Diaz added. "I feel bad for him." He also worried about his 19-year-old daughter and 3-month-old grandson. "I feel sorry for what I'm putting them through. I know it's painful, hurting them," he said.

At his execution, Diaz greeted his witnesses, which included his mother and grandmother, by smiling and by blowing them a kiss. He then began his last statement, first addressing Forrest Nichols, the victim's father. "I don't know if you remember back in 2000," Diaz said. "... you were looking for me yourself and would have taken care of me yourself. I am glad it happened this way, too. I wouldn't want to see you in my shoes. You would have probably been here, not me. I wouldn't wish this on you. I hope this can bring some relief for you and your family." Diaz then spoke to his family in Spanish, telling them he loved them. Finally, he said, "I hope this serves as an example for the youngsters ... Think about it before you do drugs." Diaz then told the warden he was ready. The lethal injection was started. He was pronounced dead at 6:30 p.m.

Diaz's execution was the first performed in Texas using a supply of pentobarbital from an undisclosed source, presumably a compounding pharmacy. Drug companies, opposed to pentobarbital's use in executions, have banned the sale of the chemical to state prisons, but it can be produced in a pharmacy. Associated Press reporter Michael Graczyk, who has witnessed hundreds of lethal injections, wrote that Diaz's reaction to the drug was similar to Texas inmates who were injected with conventionally-sourced pentobarbital.

Huffington Post

"Arturo Diaz Executed In Texas For Murder Of Michael Nichols," by Michael Graczyk. (AP September 26, 2013)

HUNTSVILLE, Texas -- A South Texas man was put to death Thursday for a slaying 14 years ago in which the victim was bound with shoelaces and strips of bedding, stabbed 94 times and robbed of $50. The execution of Arturo Diaz, 37, was carried out after the U.S. Supreme Court refused a last-ditch appeal to block his lethal injection. It was the 13th execution this year in Texas, the nation's most active capital punishment state.

Diaz smiled and blew a kiss to several witnesses watching through a window, including his mother and grandmother. He then turned to the father of his victim, watching through an adjacent window to the death chamber. "I hope this can bring some relief for you and your family," he told him. He spoke in Spanish to his own friends and relatives, telling them: "I am with God." He also added that he hoped his fate "serves as an example for some youngsters. ... Think about it before you do drugs." He was pronounced dead 17 minutes later, at 6:30 p.m. CDT.

"It was way too easy," Forrest Nichols, whose son was murdered in 1999, said as he stood watching Diaz.

Texas Department of Criminal Justice officials have used pentobarbital as the single execution drug for more than a year, but Diaz became the first in the state given the sedative procured from a vendor or manufacturer the prison agency has declined to identify. Diaz's reaction to the drug was similar to other Texas inmates who have been executed with pentobarbital. He took several deep breaths, began snoring and ceased movement in less than a minute. The expiration date of the department's existing inventory passed this month, possibly diluting its potency. Like other death penalty states, Texas officials needed to go to nontraditional sources because the usual suppliers bowed to pressure from capital punishment opponents and refused to make their product available.

In his appeal to the Supreme Court, Diaz's attorney, James Terry Jr., argued recent high court rulings allowed another look at previously unsuccessful appeals where inmates had shoddy legal help. Diaz had deficient counsel at his 2000 trial in Hidalgo County and early in the appeals process, his attorney said.

Diaz, from Las Milpas, a small town between McAllen and the Mexican border, was convicted of the April 1999 slaying of Michael Nichols, 25, at Nichols' apartment in McAllen. Diaz also was given two life terms for attempted capital murder and aggravated robbery of another man who survived.

Cregg Thompson, the lead prosecutor at Diaz's murder trial, said evidence showed Diaz tried to steal Nichols' pickup truck but couldn't open a locked gate at the apartment complex. His shoe print was found on the keypad box at the gate, and his DNA was found on a beer bottle at Nichols' apartment. Diaz said he was high on drugs and alcohol during the attack on Nichols. He also confessed to a slaying that took place a month earlier. In that case, the victim's head was stomped and face beaten with a hammer. Diaz also received a 94-year prison term for aggravated sexual assault for raping a jail inmate. "You know it's going to take some time for all the appeals and everything to go through," Thompson said this week of Diaz's execution. "But when you say 14 years, that sounds like an awful long time."

Huntsville Item

"South Texas man executed for 1999 slaying," by Cody Stark. (Thu Sep 26, 2013, 07:34 PM CDT)

HUNTSVILLE — A South Texas man was put to death Thursday night for a brutal stabbing and robbery in McAllen 14 years ago. Arturo Diaz, 37, addressed the family of Michael Nichols, the man Diaz was convicted of stabbing 94 times before he was executed. He told Nichols’ father, Forrest Nichols, that he was “glad” the end result “happened this way.” “I don’t know if you remember back in 2000 you were happy the way it happened, you were looking for me yourself and would have taken care of me yourself,” Diaz said. “I am glad it happened this way, too. I wouldn’t want to see you in my shoes. You would have probably been here, not me. I wouldn’t wish this on you. I hope this can bring some relief for you and your family.” Diaz then began speaking to his family in Spanish. He told them he loved them and to “have hope for me.” He then told his friend, Roberto Meza, to remember a message. “Robert don’t forget what I told you,” Diaz said. “I hope that this serves as an example for the youngsters. Think about it before you make a bad decision.” Diaz then told the warden he was ready. He was pronounced dead at 6:30 p.m., 17 minutes after the lethal dose began and around an hour after the United States Supreme Court refused his final appeal.

Diaz’s family immediately began sobbing uncontrollably when the sheet was placed over his head. He is the 13th inmate executed in Texas this year. Texas Department of Criminal Justice officials have used pentobarbital as the single execution drug for more than a year, but Diaz became the first in the state given the sedative procured from a vendor or manufacturer the prison agency has declined to identify.

Diaz, from Las Milpas, a small town between McAllen and the Mexican border, was convicted of the April 1999 slaying of Nichols, 25, at Nichols’ apartment in McAllen. Nichols was stabbed 94 times and found bound with shoelaces and strips of bedding. Diaz also was given two life terms for attempted capital murder and aggravated robbery of another man who survived. Cregg Thompson, the lead prosecutor at Diaz’s murder trial, said evidence showed Diaz tried to steal Nichols’ pickup truck but couldn’t open a locked gate at the apartment complex. His shoe print was found on the keypad box at the gate, and his DNA was found on a beer bottle at Nichols’ apartment.

Diaz said he was high on drugs and alcohol during the attack on Nichols, who was also robbed of $50. He also confessed to a slaying that took place a month earlier. In that case, the victim’s head was stomped and face beaten with a hammer. Diaz also received a 94-year prison term for aggravated sexual assault for raping a jail inmate.

The Monitor

"Las Milpas man executed for 1999 murder in McAllen." (Thursday, September 26, 2013 9:00 pm)

HUNTSVILLE, Texas (AP) — A South Texas man was put to death Thursday for a slaying 14 years ago in which the victim was bound with shoelaces and strips of bedding, stabbed 94 times and robbed of $50. The execution of Arturo Diaz, 37, was carried out after the U.S. Supreme Court refused a last-ditch appeal to block his lethal injection. It was the 13th execution this year in Texas, the nation's most active capital punishment state.

Diaz smiled and blew a kiss to several witnesses watching through a window, including his mother and grandmother. He then turned to the father of his victim, watching through an adjacent window to the death chamber. "I hope this can bring some relief for you and your family," he told him. He spoke in Spanish to his own friends and relatives, telling them: "I am with God." He also added that he hoped his fate "serves as an example for some youngsters. ... Think about it before you do drugs." He was pronounced dead 17 minutes later, at 6:30 p.m. CDT.

"It was way too easy," Forrest Nichols, whose son was murdered in 1999, said as he stood watching Diaz.

Texas Department of Criminal Justice officials have used pentobarbital as the single execution drug for more than a year, but Diaz became the first in the state given the sedative procured from a vendor or manufacturer the prison agency has declined to identify. Diaz's reaction to the drug was similar to other Texas inmates who have been executed with pentobarbital. He took several deep breaths, began snoring and ceased movement in less than a minute. The expiration date of the department's existing inventory passed this month, possibly diluting its potency. Like other death penalty states, Texas officials needed to go to nontraditional sources because the usual suppliers bowed to pressure from capital punishment opponents and refused to make their product available.

In his appeal to the Supreme Court, Diaz's attorney, James Terry Jr., argued recent high court rulings allowed another look at previously unsuccessful appeals where inmates had shoddy legal help. Diaz had deficient counsel at his 2000 trial in Hidalgo County and early in the appeals process, his attorney said.

Diaz, from Las Milpas, a small town between McAllen and the Mexican border, was convicted of the April 1999 slaying of Michael Nichols, 25, at Nichols' apartment in McAllen. Diaz also was given two life terms for attempted capital murder and aggravated robbery of another man who survived. Cregg Thompson, the lead prosecutor at Diaz's murder trial, said evidence showed Diaz tried to steal Nichols' pickup truck but couldn't open a locked gate at the apartment complex. His shoe print was found on the keypad box at the gate, and his DNA was found on a beer bottle at Nichols' apartment.

Diaz said he was high on drugs and alcohol during the attack on Nichols. He also confessed to a slaying that took place a month earlier. In that case, the victim's head was stomped and face beaten with a hammer. Diaz also received a 94-year prison term for aggravated sexual assault for raping a jail inmate. "You know it's going to take some time for all the appeals and everything to go through," Thompson said this week of Diaz's execution. "But when you say 14 years, that sounds like an awful long time."

ProDeathPenalty.Com

On April 1, 1999, Michael Ryan Nichols was in McAllen, Texas on business. That night, the night before he was murdered, Nichols went out with an exotic dancer named Danielle Thomas who performed exotic dances at parties and private dances. While they were out, a teller machine destroyed Nichols’ bank card and Thomas loaned him $100. When the nightclubs closed at 2:00 a.m., Nichols and Thomas returned to Thomas’ trailer, where they met up with Arturo Eleazar Diaz and a woman named Arcelia Reyes. The four watched movies until 4:00 or 5:00 a.m., when Thomas and Reyes, who provided security for Thomas, borrowed Nichols’ truck to go to a motel so Thomas could dance. Reyes returned the truck to Nichols before the dance ended. Thomas called the trailer several times during the day, speaking sometimes to Diaz and sometimes to Nichols.

When Thomas and Reyes returned to the trailer at 8:00 p.m. on April 2, the two men had left. John Shepherd, a coworker of Nichols who shared a company-owned apartment in McAllen with him, later testified that Nichols, Diaz, and a man named Joe Cordova arrived at the McAllen apartment between 6:00 and 7:00 p.m. on April 2. Shepherd felt uncomfortable around Nichols’ companions. He noticed that Diaz had tattoos on his forearms. Shepherd left to buy beer and cigarettes. When he returned, he noticed that Nichols’ truck was in the center of the parking lot, a fact that would become important later. Nichols, Diaz, and Cordova were watching television in the living room. Shepherd went to bed. While Shepherd was in bed, Thomas and Reyes stopped by the apartment. Thomas testified that she had come to recover the $100 she had lent to Nichols on April 1. She saw that Nichols had two fifty dollar bills in his wallet. He gave her one and kept the other. After the murder, the second fifty dollar bill was not found in Nichols’ wallet, or anywhere else for that matter. Instead, a piece of paper with Diaz’s telephone number and first name were found in Nichols’ wallet.

Later that night, Shepherd was awakened by a loud noise. He went to the living room and found Nichols bleeding from a wound in his arm. Diaz was holding a large butcher knife. After Shepherd asked three times “What’s going on?,” Nichols said, “Do what he says, get the money and they’ll leave.” Cordova said some things in Spanish and in English about Shepherd getting money; and Diaz spoke angrily in Spanish. Diaz then grabbed Shepherd’s shirt and pushed him down the hall to his room. Shepherd got some cash from his pants pocket and gave it to Diaz. Diaz checked the pants for more money, then grabbed Shepherd’s shirt and led him back to the living room. Cordova told Shepherd to sit on the couch and do what he was told. Diaz and Cordova subsequently put Nichols on the floor and bound and gagged him with shoelaces and strips of bedding.

The phone rang, and Cordova answered it. Shepherd later testified that Cordova told the caller to “‘come to get us, or come over here,’ something like that . . . . Pretty quick there was a knock on the door.” Thomas testified that Reyes had received a phone call around midnight and that she had borrowed Thomas’ car and left for about forty-five minutes. Consistent with Thomas’ testimony, Shepherd testified that a large Hispanic woman arrived at the apartment shortly after the phone call. The woman asked Cordova and Diaz what was going on, and Cordova told her something in Spanish. Shepherd testified that the woman did not look happy with Cordova’s response. Cordova told the woman to face the door, and he told Shepherd not to look at her. Diaz and Cordova beat Nichols.

They put Shepherd on the floor and bound and gagged him, then returned their attention to Nichols. Cordova lifted Nichols up and held him while Diaz stabbed Nichols in the torso numerous times. An autopsy revealed perforations of Nichols’ liver, kidney, lungs, and heart. A knife thrust had fractured a rib and broken off the tip of the knife, which remained in the rib. The autopsy also revealed lacerations to Nichols’ scalp, neck, and flanks - a total of 92 stab wounds. When Cordova noticed that Shepherd had freed one of his hands, he and Diaz beat Shepherd and stabbed him. Shepherd pretended to be dead and lost consciousness. Diaz and a man known to Thomas as “Danny” arrived at Thomas’ trailer at 3:00 a.m. on April 3. They were very nervous and in a hurry to leave. When Reyes returned, Thomas noted that she was very upset.

When Shepherd awoke, the apartment was dark. The evidence indicates that it was between 3:00 and 4:00 a.m. Shepherd freed himself from his bindings and left the apartment. He noticed Nichols’ truck at the apartment gate with the driver's door open. At Shepherd’s request, a neighbor called the police. When the police arrived at the apartment complex, they found the gate locked and Nichols’ truck parked next to the keypad box inside the gate. There was blood in the truck, bedding material on the ground, and a footprint on top of the keypad box that was later found to match Diaz’s shoe. Nichols was found dead in the apartment; a beer bottle with Diaz’s DNA on it was found on the floor next to him. A man named Manuel Montes later testified that Cordova phoned him at about 4:00 a.m. on April 3 and asked Montes to pick him up from another neighborhood. Cordova was Montes’ neighbor and the older brother of Montes’ best friend. Montes picked up Cordova, Diaz, and a large woman and took them over to his house. Cordova had a bloody shirt wrapped around his arm, and when he was arrested, wounds were discovered on his arms and thigh. After day light, Cordova borrowed a pair of Montes’ pants so that he could go home and get pants for himself and Diaz. After Cordova and Diaz changed clothes, Cordova told Montes he would take care of the trash bag, which presumably contained the dirty clothes. Police later found a trash bag of clothing in Montes’ home; the clothing was stained with Cordova’s and Nichols’ blood. Montes also testified that he overheard Diaz telling some other men, in Cordova’s presence, about a murder. According to this testimony, Cordova held the man, and Diaz stabbed him.

The defense presented no witnesses during the guilt-innocence phase of trial. Instead, counsel argued that Diaz was not guilty of capital murder because the State had failed to prove that the murder occurred during the commission or attempted commission of a robbery. The jury found Diaz guilty of the capital murder of Nichols. They also found him guilty of the attempted capital murder of Shepherd and of aggravated robbery. During the penalty phase of trial, the State presented evidence that Diaz had engaged in misconduct while in the county jail; that his misconduct included fighting and refusing to go to court; that deputies had caught Diaz trying to dig a hole through the wall of his cell; that Diaz was housed in a unit used to hold members of the Pistoleros gang; and that Diaz had committed other assaults and homicides.

Dr. John Edward Pinkerman, a psychologist, testified for Diaz. Prior to testifying, Dr. Pinkerman met with Diaz twice to conduct a psychological evaluation. He documented his findings in a written report. According to Dr. Pinkerman, Diaz’s past medical history included head trauma from being knocked unconscious during fights and a head injury suffered in a car accident. Dr. Pinkerman indicated that Diaz’s history of head trauma could impair his ability to control and regulate his judgment and perceive reality; that Diaz has low-average intelligence and the verbal ability of an eleven-year old; that Diaz is prone to feeling guilty and might act out to incur punishment; and that Diaz has a history of antisocial behavior as a child that correlates with a high probability of adult criminal behavior.

Over defense’s objection, the State introduced Dr. Pinkerman’s written report into evidence. The report included Dr. Pinkerman’s conclusion that Diaz “approached the assessment in somewhat of an exaggerated manner which may reflect an inability to cooperate with the testing or malingering in an attempt to present himself with the false claim of mental illness”; that Diaz was not mentally ill; and that Diaz’s profile matches that of Type C offenders, which Dr. Pinkerman described as the most difficult criminal offenders -- those who are distrustful, cold, irresponsible, and unstable. Also, on cross, Dr. Pinkerman testified that Diaz had refused to discuss the facts of the offense with him on the advice of Diaz’s attorney. After Dr. Pinkerman testified, the defense called no other witnesses.

During closing arguments, the defense reiterated its earlier argument, advanced during the guilt-innocence phase of trial, that Diaz was not guilty of capital murder because the evidence did not show that the murder occurred during the commission or attempted commission of a robbery. The prosecutor, in turn, urged the jury that Diaz was not like them and that they had “a duty to protect the people of the county.” The jury found that there was a probability that Diaz would commit criminal acts of violence that would constitute a continuing threat to society; that Diaz actually killed or intended to kill Nichols, or anticipated that human life would be taken; and that there was not sufficient mitigating evidence to justify the imposition of a life sentence instead of death. The trial court accordingly sentenced Diaz to death on the capital murder charge. It sentenced Diaz to life in prison on the attempted capital murder and aggravated robbery charges. Diaz also confessed to killing another man - David Anthony Nichols, of Combes - by stomping on his head and bludgeoning his face beyond recognition with a hammer during a March 25, 1999, fistfight. Charges in connection with David Anthony Nichols' death were dropped because no one came forward to identify the victim.

Ex parte Diaz, 2013 Tex. Crim. App. Unpub. LEXIS 1011 (Tex. Crim. App. Sept. 23, 2013). (Successive State Habeas)

Per Curiam. Alcala, J., filed a concurring statement in which Cochran, J., joined. Price, J., filed a dissenting statement.

This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. In February 2000, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Diaz v. State, No. AP-73,821 (Tex. Crim. App. Sept. 18, 2002)(not designated for publication). Applicant filed his initial post-conviction application for a writ of habeas corpus in the convicting court on January 14, 2002. This Court denied applicant relief. Ex parte Diaz, No. WR-55,850-01 (Tex. Crim. App. June 18, 2003) (not designated for publication). Applicant's first subsequent application was filed in the trial court on September 19, 2013.

Applicant raises two claims in his subsequent writ application: that his trial counsel failed to adequately advise him regarding the State's plea offer, and that trial counsel failed to investigate and present mitigating evidence. He further asserts that his initial habeas counsel was ineffective for failing to raise the issues in his initial writ application. After reviewing the application, this Court has determined that applicant has failed to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claims, and we deny applicant's motion to stay his execution. IT IS SO ORDERED THIS THE 23rd DAY OF SEPTEMBER, 2013.

Alcala, J., filed a concurring statement in which CochranJ., joined.

I respectfully concur in this Court's dismissal of the subsequent application for a writ of habeas corpus filed by Arturo Eleazar Diaz, applicant. I write separately because my decision rests in part on the merits of the application rather merely on the procedural bar. See Tex. Code Crim. Proc. art. 11.071, §5(a).1 Even if this Court were to consider the merits of applicant's claims, applicant has failed to make a preliminary showing that there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Furthermore, because the affidavits presented in this application were prepared in 2004 but presented to this Court within a week of applicant's impeding execution, applicant's delay in presenting his claim seriously impedes the credibility of his arguments.2

1 I have previously urged this Court to consider the merits of a substantial claim of ineffective assistance of trial counsel raised in a subsequent 11.071 application if that claim was forfeited as a result of ineffective assistance of initial habeas counsel. See Ex parte McCarthy, No. WR-50360-04, 2013 Tex. Crim. App. Unpub. LEXIS 731, 2013 WL 3283148, at *5 (Tex. Crim. App. June 24, 2013) (Alcala, J., dissenting) (not designated for publication). Although I adhere to the general position I took in McCarthy, I conclude that the applicant in this case has failed to make a preliminary showing that his underlying Wiggins claim is substantial for purposes of overcoming the statutory bar on subsequent writs. See Tex. Code Crim. Proc. art. 11.071, § 5(a). Even if this Court were to permit an applicant to raise an ineffective-assistance claim in a subsequent writ, I maintain that such an applicant must first preliminarily show that the underlying ineffective-assistance-of-trial-counsel claim is substantial, which is to say that it has some merit. This requirement is in accordance with the Supreme Court's approach in Martinez v. Ryan, 566 U.S. , 132 S. Ct. 1309, 1318, 182 L. Ed. 2d 272 (2013) (requiring showing that "substantial" ineffective-assistance-of-trial-counsel claim has "some merit" before federal court may excuse procedural default on basis of ineffective assistance of post-conviction counsel). In the absence of such a showing, I conclude that this application is statutorily barred. See Tex. Code Crim. Proc. art. 11.071, § 5(a).

2 Applicant relies on Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), decided almost four months ago, but filed this application within a week of his scheduled execution.

In Wiggins, the Supreme Court found trial counsel ineffective and reversed the conviction, explaining that "[h]ad the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance." Id. at 537. The mitigation evidence not presented to the jury in Wiggins included "physical torment, sexual molestation, and repeated rape." Id. at 535. In contrast, the evidence presented in this application cannot reasonably be classified as mitigation evidence that might cause even one juror to reach a different result. In his own affidavit presented in this application, applicant himself, even now, does not suggest that there is any mitigation evidence. Applicant's affidavit states, "Mr. Reyes [trial counsel] visited me in jail before trial and asked whether I had been abused as a child or if I knew anything else that could help my case. Because I did not know what, if anything, would help me, I could not provide him any information." In his own affidavit attached to this application, applicant does not describe any evidence that might serve to mitigate his punishment.

The primary suggestion of mitigation focuses on applicant's poverty as a child. When applicant lived with his mother during the first five years of his life, she did not provide adequate food and supervision, but it appears from the affidavits that during this time he lived near his grandmother, who would provide him with food and supervision when he and his sister would arrive at her house. When applicant lived with his grandmother beginning at five years of age, he lived in a home that was extremely modest without indoor plumbing, family funds were limited, and meals were simple. But these circumstances are counterbalanced by evidence that applicant's family received income through Social Security benefits and working as laborers; applicant slept indoors; he ate beans and soup "many days" and the family received food stamps to obtain food; and the home could be heated, was partially air conditioned, and had water with which to bathe. I cannot conclude that there is a reasonable probability that a juror would have found these circumstances sufficient to warrant a sentence of life instead of death in this case. This is particularly true in light of the fact that a great number of people living in South Texas at that time lived in similar modest conditions. Furthermore, although I recognize that living in poverty has negative consequences, about a quarter of all children in the United States in 1995 lived in poverty, according to the article from the National Center for Children In Poverty that was provided by applicant. This suggests to me that, for poverty to be a significant mitigating circumstance, a defendant would need to show more than what has been described in this writ record.

The affidavits by applicant's sister, grandmother, and mother suggest other circumstances that could arguably be classified as mitigating evidence. This evidence includes a description of applicant as "depressed," "burn[ing] his arms with cigarettes to help him take his mind off the pain inside," using alcohol and drugs as a teenager, and being abandoned by his parents. Applicant's mother had poor pre-natal care and applicant was exposed to lead-based paint as a child. These affidavits, however, have few details to explain what was meant by "depressed," fail to state the number of times or severity of his self-inflicted burns, and do not address how the lack of adequate pre-natal care or frequency and amount of exposure to lead-based paint may have actually impacted applicant. More importantly, for the three reasons below, a reasonably effective attorney would not likely have presented any testimony from these three individuals.

First, the affidavits describe applicant as uncontrollable when he was as young as 15 years of age. Applicant's sister stated that as applicant grew older, their grandmother "was not able to control his behavior" and, when he was 15 years old, "told the authorities that she could not control [applicant] any longer." Applicant's grandmother states, "By the time Arturo was fifteen years old, he also was in trouble with the law, and I was no longer able to control him." Although applicant's sister and grandmother were willing to testify, I conclude that an effective attorney could have reasonably declined to present their minimally favorable testimony in light of their very damaging description of applicant as uncontrollable.

Second, the affidavits conflict with respect to the events of applicant's background. On the one hand, applicant's relatives contend that he was exposed only to negative role models because his uncles were lazy, drunk, and criminals. On the other hand, their affidavits acknowledge the presence of two positive role models: applicant's grandmother, who was like a mother to applicant, and applicant's grandmother's second husband, who worked long hours picking cotton. Similarly, on the one hand, applicant's sister and grandmother claim that his mother would put him in a locked closet while entertaining boyfriends, but, on the other hand, his mother does not mention this and describes herself as having had "several brief relationships with men who would live with us briefly, then leave." Because applicant's relatives' stories conflict with respect to the degree of hardship in applicant's background, an effective attorney could reasonably have decided not to present these witnesses in order not to lose credibility with the jury.

Third, some of the evidence proffered as mitigating in this application would likely have alienated the jury. Some of the evidence stretches the bounds of what any reasonable person might classify as evidence worthy of mitigating a sentence of death. The evidence describes how the family had to save the shells of their eggs so that they could use them to make confetti eggs at Easter. It also describes how the Christmas gifts stopped when applicant became a teenager. Furthermore, when he was around 17 years of age, applicant began living in Arizona with his mother, who expected him to pay rent, did not cook for him, did not wash his clothes, and would not make a lunch for him to take to work. Had this type of evidence been presented to the jury, it would in all likelihood have worked against applicant, who might have been viewed as complaining about trivialities as an excuse for his violent conduct. I cannot envision that any reasonable attorney would present this type of evidence as a basis for the jury not to impose a death sentence.

The evidence from applicant's cousin and teacher is largely the same as the evidence described above, and none of the circumstances rise to the level of mitigation evidence described by Wiggins. See id. at 516-18. For example, applicant's teacher describes him as having self-esteem issues in junior high school, which would probably place him with the majority of children at this age. I also note that applicant complains that a plea bargain offer was not adequately explained to him prior to trial. He, however, acknowledges that his attorneys did convey an offer of a life sentence to him. He claims that if he had known that he would serve 30-years' time instead of 40-years' time, he would have taken the plea-bargain offer. His nine-year delay in bringing this complaint makes it wholly lacking in credibility, particularly in light of the substance of his complaint.

Whatever slight mitigating evidence may be presented by applicant at this late date, I cannot conclude that there is a reasonable probability that at least one juror might have reached a different result had he heard it. The record shows that applicant was found guilty in 2000 for his role in causing the death of one man who was repeatedly stabbed by applicant while applicant's companion forcefully held the man, and for stabbing another man on the neck and head. Shortly before that, he killed another man by kicking him in the head while applicant's companion stomped the man's face. Furthermore, at the time of these events, he was a member of a violent local street gang. In light of the aggravating facts and applicant's failure to make a preliminary showing of substantial mitigating evidence that was not presented to the jury, applicant has not shown that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See id. I, therefore, join this Court's order dismissing this application.

PriceJ., filed a dissenting statement.

Over the last fifteen years or more, Texas has executed any number of people whose legal representation during their state post-conviction habeas corpus proceedings was plainly inadequate. Who knows how many of them may have been able to obtain new trials with adequate representation? Some of them may even have been innocent—think of Anthony Graves's near miss, for example1—although for most of them we will likely never know for sure.

1 See Pamela Colloff, Free at Last, Texas Monthly November 2010 ("At the recommendation of the Burleson County district attorney's office, state district judge Reva Towslee-Corbett signed a motion that stated, simply, 'We have found no credible evidence which inculpates [Graves].' In other words, all capital murder charges were dropped. * * * Burleson County district attorney Bill Parham . . . was clear that this was not a matter of having insufficient evidence to take to trial; charges were not dropped because too many witnesses had died over the years or because the evidence had become degraded. 'There's not a single thing that says Anthony Graves was involved in this case,' he said. 'There is nothing.'"); Pamela Colloff, Innocence Found, Texas Monthly January 2011 ("Burleson County district attorney Bill Parham told reporters at a hastily organized press conference that he was 'absolutely convinced' of Graves's innocence. * * * When [special prosecutor Kelly] Siegler's turn came to address reporters, she placed the blame for Graves's wrongful conviction squarely on former DA Charles Sebasta. 'It's a prosecutor's responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims,' she said. 'And unfortunately, what happened in this case is all of those things.' Graves's trial, she said, had been 'a travesty.'").

In the last two years, the United States Supreme Court has finally rendered a pair of decisions that partially remedies this situation, at least for purposes of federal habeas corpus review of state court convictions. By the combined opinions in Martinez and Trevino,2 the Supreme Court has held that a federal petitioner from Texas may pursue the merits of a claim of ineffective assistance of trial counsel in federal habeas corpus proceedings, even if he failed to pursue that claim in state court, so long as he can show that the default in state court was a product of ineffective representation by his initial state habeas counsel. Unfortunately for Arturo Diaz, whose initial state habeas counsel arguably failed to adequately present a claim of ineffective assistance of trial counsel under Wiggins v. Smith,3 these recent Supreme Court holdings may not help him. Martinez and Trevino excuse a procedural default that occurred in state court on account of ineffective state habeas counsel only for purposes of an initial federal habeas petition. Diaz has already litigated his initial federal petition, and he cannot hope to successfully pursue a Martinez/Trevino claim in a subsequent federal habeas petition.4

2 Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012); Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). 3 Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). 4 See 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under Section 2254 that was presented in a prior application shall be dismissed.") Diaz presented his Wiggins claim in his initial federal habeas petition, but the federal courts rejected it for lack of factual development in the state habeas proceedings—the very ineffectiveness about which Diaz now complains. Diaz v. Quarterman, 239 F. App'x 886, 889-90 (5th Cir. 2007) (not designated for publication). See Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) (federal habeas review of a state court judgment is limited to a review of the objective reasonableness of that judgment in view of the record that was before the state court). Earlier, Diaz had argued that the deficiencies in his federal Wiggins claim should be excused because state habeas counsel had been ineffective in developing it in state habeas proceedings, but the Fifth Circuit rejected this argument under its then-settled precedent holding that ineffective state habeas counsel does not constitute an excuse for procedural default—the very precedent that Martinez/Trevino has now undermined. Diaz v. Quarterman, 228 F. App'x 417, 424 (5th Cir. 2007) (not designated for publication). Diaz currently has a motion pending in the federal district court under Rule 60(b) of the Federal Rules of Civil Procedure to reopen his federal habeas proceedings. Fed. R. Civ. P. 60(b). But relief under Rule 60(b) is hardly a foregone conclusion. See Adams v. Thaler, 679 F.3d 312, 322 (5th Cir. 2012) (because Martinez represented "simply a change in decisional law[,]" Rule 60(b) relief was not warranted, and the district court should not have granted a motion to stay execution).

Diaz has now filed another state post-conviction application for writ of habeas corpus in which he is attempting to re-raise his Wiggins claim, this time presenting a specific pleading with regard to what an adequate mitigation investigation would have uncovered and how the lack of such an investigation adversely impacted the punishment phase of his trial. He presents documentary evidence in support of these allegations, and his claim appears to be substantial. Nonetheless, in order to proceed with a subsequent post-conviction application for writ of habeas corpus under Article 11.071, Section 5, of the Code of Criminal Procedure, an applicant must plead "sufficient specific facts establishing that . . . the current claims and issues have not been and could not have been presented" in a previous writ application.5 Obviously the applicant's Wiggins claim was available to him when he filed his initial state writ application, since he did in fact raise it. But he failed to demonstrate the diligence required by Article 11.071, Section 5(a)(1), in that his counsel apparently failed to conduct the kind of investigation that would discover, develop, and document the underlying facts necessary to support a Wiggins allegation.6 His initial pleading was pro forma, with no substantive content. His only hope for obtaining a review of the merits of his claim now, at least in the guise of a subsequent writ application, is to argue that ineffective assistance of initial state habeas counsel constitutes a new factual basis to justify the re-presentation of his Wiggins claim.

5 Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). 6 Id.

I have urged the Court on several occasions in the past to consider such a construction of Article 11.071, Section 5(a)(1), but without success.7 Even after Martinez and Trevino, this Court continues to adhere to the holding it announced in Anthony Graves's case that Article 11.071's guarantee of "competent counsel" for purposes of an initial capital habeas application does not mean counsel who in fact performs effectively, but only counsel who was qualified to do so at the time of his appointment, regardless of how he actually performed.8 By this construction, the Court has essentially determined that the Legislature has mandated that we turn a blind eye to the failure—even the abject failure—of initial state habeas counsel to safeguard the constitutional rights of his client. It is difficult to square this willful blindness with "the premise" upon which "the entire statute is built" that "a death row inmate does have one full and fair opportunity to present his constitutional or jurisdictional claims in accordance with the procedures of the statute."9

7 Ex parte Graves, 70 S.W.3d 103, 121 (Tex. Crim. App. 2002) (Price, J., dissenting); Ex parte Foster, No. WR-65,799-02, 2010 Tex. Crim. App. Unpub. LEXIS 734, 2010 WL 5600129, at *2 (Tex. Crim. App. delivered Dec. 30, 2010) (Price, J., dissenting) (not designated for publication). 8 Graves, supra, at 116 ("What the Legislature has not done . . . is evince any intention that its choice of the term 'competent counsel' [in Article 11.071, Section 2(a)] as it applies to the appointment of a habeas attorney also applies to the final product or services rendered by that otherwise experienced and competent counsel."). 9 Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002).

Much as I would prefer that the Court reconsider its unfortunate holding in Graves, I must concede that nothing about the Supreme Court's opinions in Martinez and Trevino compels us to do so. Graves construed Article 11.071, Section 5, and, because the Supreme Court eluded the issue of whether the Sixth Amendment mandates the effective assistance of counsel in habeas corpus proceedings, nothing in Martinez/Trevino even arguably renders the Court's construction of that provision unconstitutional. Nevertheless, as Judge Alcala has elsewhere recognized, Martinez and Trevino have triggered federalism concerns, paving the way for de novo federal review of a number of state claims and concomitantly diluting the control Texas would otherwise exercise over the finality of its own convictions.10

10 See Ex parte McCarthy, No. WR-50,360-04, 2013 Tex. Crim. App. Unpub. LEXIS 731, 2013 WL 3283148, at *7-8 (Tex. Crim. App. delivered June 24, 2013) (Alcala, J., dissenting) (not designated for publication) ( "Unless this Court revises its current approach, federal courts will now have the opportunity to decide a vast number of ineffective-assistance claims de novo, without any prior consideration of those claims in state court. The State's interest in finality of convictions would be better served by permitting state courts to address these ineffective-assistance claims on the merits.").

Perhaps we are not at liberty to carve out what Judge Alcala has called an "equitable exception" to the limits on subsequent capital habeas claims that Article 11.071, Section 5, imposes.11 We have often acknowledged our lack of authority to redraft statutory language to suit our own preferences in the name of policy or "equity."12 But that does not leave us altogether powerless.

11 2013 Tex. Crim. App. Unpub. LEXIS 731, [WL] at *10; see Ex parte Sledge, 391 S.W.3d 104, 107-110 (Tex. Crim. App. 2013) (declining to recognize a judicial exception to Article 11.07, Section 4, of the Code of Criminal Procedure that would allow consideration in a subsequent writ application of the merits of a claim that the trial court lacked jurisdiction). 12 Sledge, supra, at 111.

In Ex parte Kerr,13 initially appointed state habeas counsel filed a document that purported to be a post-conviction application for writ of habeas corpus, but which only challenged the constitutionality of the habeas statute itself.14 We held that such a pleading "was not, in fact, a true application for a writ of habeas corpus under [A]rticle 11.071 because it did not attack [the] applicant's capital murder conviction or death sentence."15 We likewise deemed a later pleading that challenged only the competency of the initial state habeas counsel's representation not to constitute a "writ application" for purposes of triggering Section 5's abuse-of-the-writ provisions.16 Because neither previous pleading satisfied the criteria for a true post-conviction application for writ of habeas corpus, we held that Kerr's third-filed pleading, which for the first time challenged his conviction and death sentence, constituted his initial writ, and that "[h]e is entitled to have the merits of that initial application heard and decided."17

13 64 S.W.3d 414 (Tex. Crim. App. 2002). 14 Id. at 415-16. 15 Id. at 416. 16 See id. at 420 ("[T]he second habeas filing dealt solely with a stay of execution and an allegation of ineffective assistance of original habeas counsel."). 17 Id.

Almost ten years later, in Ex parte Medina,18 the Court construed Kerr to apply to a purported post-conviction application for writ of habeas corpus that failed to "contain both legal claims and factual contentions."19 Initial habeas counsel in Medina had deliberately filed an application which stated adequate legal grounds but only the barest of specific facts in support of his claims for relief under those legal grounds. We observed: Applicant, because of his counsel's intentional refusal to plead specific facts that might support habeas-corpus relief, has not had his "one full and fair opportunity to present his constitutional or jurisdictional claims in accordance with the procedures of [Article 11.071]." Not full because he is entitled to one bite at the apple, i.e., one application, and the document filed was not a proper writ application. Not fair because applicant's opportunity, through no fault of his own, was intentionally subverted by his habeas counsel.20 As suggested by the last clause of this passage, we went on to articulate a limiting principle: essentially, that a purported writ application that is deficient for lack of specific factual allegations will be regarded as a non-writ-application only when it involves "not habeas counsel's lack of competence but his misplaced desire to challenge the established law at the peril of his client[.]"21 In retrospect, it is not apparent to me that our limiting principle withstands scrutiny. It is not altogether clear to me, for example, how it is objectively less fair to a capital habeas applicant that he has been deprived of his one full bite at the apple by the incompetency—as opposed to the deliberate gamesmanship—of his initial state habeas counsel. Either way, he suffers "through no fault of his own."22

18 361 S.W.3d 633 (Tex. Crim. App. 2011). 19 Id. at 642. 20 Id. (quoting Kerr, supra, at 419). 21 Id. at 643. 22 Id. at 642.

It is equally unclear to me how the essential character of a pleading can be made to depend upon the intention of the pleader. A purported writ application either states sufficient facts to flesh out a cognizable claim, or it does not. It either constitutes a post-conviction writ application or it does not. Whether a document pleads sufficient specific facts so as to constitute a "writ application" in contemplation of Kerr cannot reasonably be made to turn on the good faith of the attorney who prepared it—it is either sufficiently well drawn or it is not. Such a document cannot be regarded as a writ application when the pleader deliberately omits sufficiently specific facts but not a writ application when the facts are left out because of the pleader's plain inaptitude.

Diaz's initial state habeas lawyer pled his client's writ application with no greater factual specificity than Medina's lawyer pled Medina's. The Court should take the time to consider declaring that the applicant's initial pleading constitutes no writ application at all, appointing the applicant's present counsel to be his initial state habeas counsel under Article 11.071, Section 4A,23 just as we did in Medina, and treating the applicant's current application as his initial post-conviction habeas corpus pleading. Because the Court will not stay the applicant's execution long enough even to consider this prospect—instead contenting itself to permit another potentially deserving habeas applicant to die—I dissent. 23 Tex. Code Crim. Proc. art. 11.071, § 4A.

Diaz v. Quarterman, 239 Fed. Appx. 886 (5th Cir. Tex. 2007). (Federal Habeas)

PROCEDURAL POSTURE: Petitioner, a state prisoner, appealed a decision of the United States District Court for the Southern District of Texas, which denied the prisoner federal habeas relief under 28 U.S.C.S. § 2254 challenging his conviction of capital murder, attempted capital murder, and aggravated robbery and challenging his death penalty sentence.

OVERVIEW: The court certified for appeal the issue as to whether counsel rendered ineffective assistance under the Sixth Amendment during the punishment phase of the prisoner's trial by failing to adequately investigate and present readily available mitigating evidence. The district court determined that the prisoner was not entitled to habeas relief because he could not prove that counsel's performance prejudiced his defense. On review, the court upheld the denial of habeas relief under 28 U.S.C.S. § 2254(d). The state habeas court had determined that the prisoner had not provided any specifics concerning which family members were allegedly willing to testify and did not attach any affidavits of potential testimony. The only evidence the prisoner offered to rebut the state court findings was a series of affidavits presented for the first time to the district court. The court could not consider the affidavits under § 2254(e)(2) because they comprised "new evidence" that had not been properly presented to the state court and could not have been discovered through due diligence. Without the affidavits, the prisoner failed to rebut the presumption of correctness of the state court findings.

OUTCOME: The court affirmed the denial of habeas relief. PER CURIAM:

This is a death penalty case in which Petitioner Arturo Diaz appeals the district court's denial of federal habeas relief. The facts of Diaz's underlying capital offense are detailed in this Court's opinion of April 11, 2007. See Diaz v. Quarterman, No. 05-70057, 228 Fed. Appx. 417, 2007 U.S. App. LEXIS 8346, 2007 WL 1112044, at *1-*3 (5th Cir. Apr. 11, 2007). In summary, Diaz brutally stabbed one man to death and attempted to stab another man to death in the course of robbing the two men. He was convicted by a Texas jury of capital murder, attempted capital murder, and aggravated robbery, and he was sentenced to death. He unsuccessfully pursued an appeal with the Texas Court of Criminal Appeals. He also unsuccessfully pursued habeas relief with that court. In 2004, he filed a federal habeas petition in the U.S. District Court for the Southern District of Texas. That court denied relief on all of Diaz's claims and declined to issue a Certificate of Appealability (COA). He then filed an appeal with this Court and requested a COA on seven issues. This Court certified for appeal one issue presented by Diaz: whether trial counsel rendered ineffective assistance during the punishment phase of trial by failing to adequately investigate and present readily available mitigating evidence. See id. We now affirm the district court's denial of habeas relief.

I. Facts Relating to Counsel's Investigation and Presentation of Mitigating Evidence
A. Punishment Phase of Trial

The trial record shows that the only witness offered by the defense at the punishment phase of trial was a psychologist appointed by the court to evaluate Diaz. The psychologist, Dr. Pinkerman, testified that Diaz had a history of head trauma; an IQ of 89; some cognitive disabilities, which may have stemmed from prolonged alcohol or substance abuse; and an early history of behavior that indicated a propensity for delinquency and adult criminal behavior. On cross, the State introduced Dr. Pinkerman's written report into evidence over defense's objection. The report included Dr. Pinkerman's conclusions that Diaz "approached the assessment in somewhat of an exaggerated manner which may reflect an inability to cooperate with the testing or malingering in an attempt to present himself with the false claim of mental illness"; that Diaz was not mentally ill; and that Diaz's profile matches that of Type C offenders, whom Dr. Pinkerman described as the most difficult criminal offenders -- those who are distrustful, cold, irresponsible, and unstable. During closing arguments, defense counsel referenced as mitigating evidence that Diaz was married with a five-year-old daughter, had grown up with his grandmother, had learning disabilities, and had strong feelings of guilt and depression. No other mitigating evidence was presented.

B. State Habeas Court

Regarding the issue certified for appeal, the state habeas court found the following: Although Applicant's argument . . . that he was denied effective assistance of counsel based on trial counsel's alleged failure to present sufficient mitigating evidence claims that some of Applicant's family members were available and willing to testify on his behalf at the punishment phase, . . . Applicant does not provide any specifics concerning which family members were allegedly willing to testify on his behalf. In particular, he does not name said individuals, give their relationship to Applicant, or explain why he now claims that they had expressed a willingness to testify. Nor does Applicant attach any type of affidavit or other form of factual support for his claim that some of his family members would have been willing to testify. He likewise does not, in any way, suggest what the testimony of his family members would have been. . . . .

Trial attorneys Rogelio Garza and Daniel R. Reyes have provided credible information that two of Applicant's family members had been present during the punishment phase of trial; that they had, however, refused to be called to testify; and that Applicant had not wanted them to call his family members to testify. Said attorneys have likewise given credible testimony, by affidavit, indicating that they had made their decision concerning this topic based on their trial strategy; that they had conferred with Applicant before doing so; and that Applicant had agreed with said decision. Mr. Garza and Mr. Reyes have further provided credible affidavit testimony that they had presented all to [sic] the mitigation evidence which they had had available to them; that their decisions concerning use of said evidence, including Dr. Pinkerton's testimony, had been based on their trial strategy; that they had conferred with Applicant before making said decision; and that Applicant had been in agreement with their decision. Ex parte Diaz, No. CR-1464-99-G(1), paras. 1201-1204, 1208-1210 (370th Dist. Ct., Hidalgo County, Tex. Apr. 23, 2003) (proposed order containing findings of fact, conclusions of law, and a recommendation). Based on these findings, the court concluded that Diaz was not entitled to habeas relief on the claim at issue here.

C. Federal Habeas Court

When Diaz filed his petition with the district court, he attached a series of affidavits in support of his argument that counsel had provided ineffective assistance at the punishment phase of trial. The affiants included his grandmother, his mother, one of his sisters, a cousin, and a childhood teacher. All of the affiants described Diaz's difficult childhood and swore that they would have testified on Diaz's behalf if asked. The district court, adopting the report and recommendation of the magistrate judge, determined that Diaz was not entitled to habeas relief on this ground because Diaz could not prove that counsel's performance prejudiced his defense. According to the court, the evidence of Diaz's "childhood privations" paled in comparison to the evidence presented to the jury: "That Diaz committed an extremely violent murder, attempted murder, and aggravated robbery; that Diaz committed a prior unadjudicated homicide; and that Diaz committed numerous, and sometimes violent, acts of misconduct while in the county jail during his pretrial detention." Diaz v. Dretke, No. M-04-225, at 17-18 (S.D. Tex. Aug. 19, 2005) (Magistrate Judge's report and recommendation). Accordingly, the court denied Diaz habeas relief, holding that there was not a reasonable probability that the evidence of Diaz's childhood would have persuaded the jury to impose a different sentence. We issued a COA on this issue and now address Diaz's appeal.

II. Discussion

Diaz's appeal is governed by a familiar standard of review: HN1Go to the description of this Headnote.we review the district court's findings of fact for clear error and its conclusions of law de novo. See Martinez v. Quarterman, 481 F.3d 249, 253 (5th Cir. 2007). HN2Go to the description of this Headnote.Because Diaz filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), we are bound by AEDPA's various requirements, see id. (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997)), including the requirement that we not grant habeas relief unless the state court's adjudication of petitioner's claim (1) 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 (2) 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). Further, we must presume "a determination of a factual issue made by [the] State court . . . to be correct" unless the petitioner rebuts the presumption by clear and convincing evidence. § 2254(e)(1).

The sole issue certified for appeal is whether Diaz's trial counsel rendered ineffective assistance during the punishment phase of trial by failing to adequately investigate and present readily available mitigating evidence. HN3Go to the description of this Headnote.Under Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant's Sixth Amendment right to counsel includes the right to the effective assistance of counsel. A defendant has not received his constitutionally guaranteed right to effective assistance of counsel if counsel's performance was deficient and the defendant was prejudiced thereby. Id. at 687. Counsel's performance is deficient if it falls below an objective standard of reasonableness, as measured by prevailing professional norms, see id. at 688; and counsel's deficient performance prejudices the defendant's case "only if, but for counsel's errors, there is a reasonable probability that the final result would have been different and confidence in the reliability of the verdict has been undermined," Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005). Failure to prove either deficient performance or prejudice will defeat an ineffective assistance of counsel claim. Id. HN4Go to the description of this Headnote.In the context of the punishment phase of trial, the Supreme Court has indicated that prevailing professional norms require counsel to investigate thoroughly the defendant's background, including his "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (quoting ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES 11.4.1(C), at 93 (1989)).

Petitioner Diaz argues that counsel's performance was constitutionally deficient because counsel did not "review, investigate, or even attempt to introduce evidence" of the type required under Wiggins . Diaz contends that counsel could have obtained Wiggins-type evidence by speaking to his family members, who were "ready, willing, and able to testify." Further, Diaz argues that counsel's performance prejudiced his defense because if counsel had interviewed his family members, counsel would have discovered evidence of an unstable and deprived childhood, poverty and neglect, violence and instability, a lack of male role models, abandonment, and self-mutilation. He presents affidavits from four family members and one childhood teacher evidencing the above, the same affidavits offered in support of his federal habeas petition. Respondent Quarterman's response is three-fold: (1) Diaz's affidavits should be excluded because they were not presented to the state court and are therefore "unexhausted"; (2) counsel's performance was not deficient because he was following Diaz's instruction not to call any family members as mitigation witnesses; and (3) counsel's performance was not prejudicial because the anticipated testimony was weak and Diaz would not have permitted the evidence to be admitted anyway.

As stated above, the state habeas court determined that Diaz had not provided "any specifics concerning which family members were allegedly willing to testify," nor attached "any type of affidavit or other form of factual support for his claim that some of his family members would have been willing to testify," nor suggested "what the testimony of his family members would have been." It also determined that Diaz's trial counsel had provided "credible information that two of [Diaz]'s family members had been present during the punishment phase of trial, that they had . . . refused to be called to testify, and that [Diaz] had not wanted [counsel] to call his family members to testify." Finally, the court determined that Diaz's trial counsel had provided "credible affidavit testimony" that their decisions relating to the presentation of mitigating evidence were based on "trial strategy." Pursuant to AEDPA, we must presume these factual determinations to be correct absent clear and convincing evidence to the contrary. The only evidence Diaz offers to rebut the state court's findings is the series of affidavits presented for the first time to the district court. Regardless of whether these affidavits are "unexhausted" per 28 U.S.C. § 2254(b)(1), as the State contends, we cannot consider them per § 2254(e)(2) as they comprise "new evidence" that was not properly presented to the state court, and they do not evidence a factual predicate that could not have been discovered through the exercise of due diligence. See Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir. 2004). Without the affidavits, Diaz has failed to rebut the presumption of correctness that attaches to the state court's findings, and he cannot make his case that counsel were constitutionally ineffective at the punishment phase of trial. The finding that Diaz did not want his family members to testify precludes both a finding of deficient performance and a finding of prejudice. See Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (HN5Go to the description of this Headnote."Counsel will not be deemed ineffective for following their client's wishes, so long as the client made an informed decision."); see also Schriro v. Landrigan, 127 S. Ct. 1933, 1941, 167 L. Ed. 2d 836 (2007) ("If [defendant instructed his counsel not to offer any mitigating evidence], counsel's failure to investigate further could not have been prejudicial under Strickland."). A finding of prejudice is also precluded by the state court's determination that Diaz presented nothing to evidence what his attorneys could have found if they had investigated his background. A petitioner cannot show prejudice with respect to a claim that counsel failed to investigate and present mitigating evidence without adducing what the investigation would have shown. See Strickland, 466 U.S. at 696 (recognizing that HN6Go to the description of this Headnote.some evidence is required to show that "the decision reached would reasonably likely have been different"). Accordingly, the state court's denial of relief was in line with Strickland and its progeny, and Diaz is not entitled to federal habeas relief.

III. Conclusion