Anibal Canales, Jr. v. Lorie Davis, Director

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-70009

ANIBAL CANALES, JR.,

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:03-CV-69

Before HIGGINBOTHAM, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Petitioner Anibal Canales appeals the district court’s denial of habeas
relief on his claim for ineffective assistance of trial counsel. We AFFIRM.
I. Background
A. Factual Background
A prior panel of this Court has thoroughly reviewed the factual
background of this case, which we only briefly summarize here. See Canales
v. Stephens, 765 F.3d 551, 559–61 (5th Cir. 2014). Canales was a member of
the Texas Mafia, a prison gang. Id. at 559. He and other members of the gang
agreed to kill Larry Dickerson, and they did so in July 1997. Id. at 559–60. In
United States Court of Appeals
Fifth Circuit
FILED
July 21, 2020

Lyle W. Cayce
Clerk
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1998, Canales sent another Texas Mafia member, Bruce Innes, a letter
confessing to Dickerson’s murder. Id. at 560.
In November 1999, Canales was indicted for capital murder. Id. In
February 2000, he sent another note to Innes. The district court described the
letter: “[A]lthough written in code, [it] appeared to ask the gang to retaliate
against Larry (‘Iron-head’) Whited because he believed Whited had informed
prison authorities about his role in the killing” of Dickerson.

Id. Canales sent
a third letter to another inmate in April 2000. Id. at 561. He wrote that he
had “been bummed a bit” due to his case and its outcome because of “snakes in
the yard.” Id. He wrote: “I’m a firm believer that what goes around, comes
around!” Id. This letter was also introduced at trial. Id. The 1998 letter was
used in the guilt phase and the 1999 and 2000 letters were used at the
punishment phase to establish that Canales posed a threat of future
dangerousness. Id. Canales was convicted of capital murder in state district
court, and, based on the jury’s answers to questions required by Texas law, the
court sentenced him to death. Id.
B. Procedural History
The Texas Court of Criminal Appeals (“TCCA”) affirmed Canales’s
conviction and sentence on direct appeal. Canales v. State, 98 S.W.3d 690 (Tex.
Crim. App. 2003). The TCCA denied his first state habeas petition on the
merits. Ex parte Canales, No. WR-54,789-01 (Tex. Crim. App. Mar. 12, 2003)
(per curiam) (unpublished).
On November 29, 2004, Canales filed the present petition in federal
district court, raising thirteen separate grounds for relief. The court stayed
the proceedings so that Canales could present his unexhausted claims in state
court. The TCCA dismissed his subsequent state application as an abuse of
writ without reaching the merits of his claims. Ex parte Canales, No. WR-
54789-02, 2008 WL 383804 (Tex. Crim. App. Feb. 13, 2008).
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Canales then returned to federal district court. Of relevance here, the
district court dismissed Canales’s claim that he received ineffective assistance
of trial counsel in violation of Wiggins v. Smith, 539 U.S. 510 (2003), as
procedurally defaulted. Canales, 765 F.3d at 559. But it granted Canales a
certificate of appealability (“COA”) on that claim, among others. Id. While
Canales’s case was on appeal, the Supreme Court decided Trevino v. Thaler,
569 U.S. 413 (2013). In Trevino, the Court held that, under Texas’s procedural
system, a defendant may defeat a procedural default to an ineffective
assistance of counsel claim in federal court if the defendant shows that his
counsel was ineffective in the initial collateral proceeding. 569 U.S. at 429.
Based on Trevino, a panel of this court held that Canales had established
cause to excuse the procedural default on his claim of ineffective assistance of
trial counsel at sentencing. Canales, 765 F.3d at 571. The panel concluded
that Canales’s trial counsel’s performance fell below an objective standard of
reasonableness. Id. at 570. The panel also concluded that there was some
potential merit to Canales’s claim that he was prejudiced by the deficient
performance. Id. at 570–71. Trial counsel had failed to hire a mitigation
specialist, interview family members, or collect any records or historical
information on Canales’s life. Id. at 570. The panel remanded to the district
court to determine the merits of Canales’s prejudice claim in the first instance.
Id. at 571.
On remand, the State argued that the district court had “all the evidence
it need[ed], without an evidentiary hearing,” and that the facts were
undisputed. The district court disagreed, concluding that Canales was entitled
to funding for expert and investigative assistance. Canales’s three experts
interviewed over a dozen people; conducted clinical and neuropsychological
tests on Canales; and reviewed medical, legal, and prison records. Each
submitted an expert report to the district court.
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The district court, after reweighing the new mitigating evidence against
the aggravating evidence, held “that there is no reasonable probability that a
juror would have found that the mitigating evidence outweighed the
aggravating evidence.” Thus, it denied Canales relief on his Wiggins claim.
We granted Canales a COA on this claim. Canales v. Davis, 740 F. App’x 432,
433 (5th Cir. 2018) (per curiam).
II. Discussion
On appeal, Canales argues that the district court erred in its no-
prejudice holding. The State argues that 28 U.S.C. § 2254(e)(2) bars
consideration of Canales’s new mitigating evidence. Alternatively, the State
argues that that Canales’s claim fails on the merits because he cannot
demonstrate prejudice. If the new evidence were not admitted, affirmance
would be very straightforward. But even assuming arguendo that we may
consider Canales’s new evidence, we hold that Canales fails on the merits of
his Wiggins claim.
1

To prevail on his Wiggins claim, Canales must show that his trial
counsel’s performance was deficient and that the deficiency prejudiced his
defense. Wiggins, 539 U.S. at 521. A panel of this court has already held that
Canales satisfied the first prong, Canales, 765 F.3d at 569–70, and nothing has

1
It is highly questionable whether this case meets the Antiterrorism and Effective
Death Penalty Act’s difficult standards set forth in Cullen v. Pinholster, 563 U.S. 170, 186
(2011). A twist is whether the Trevino analysis alters the Pinholster analysis in cases where
the state habeas counsel failed to develop the record. Another twist is present in this case
that is not usually present: the State failed to object to the new evidence under 28 U.S.C. §
2254(e)(2), only arguing it was unnecessary, not improper. See, e.g., Holland v. Jackson, 542
U.S. 649, 653 (2004) (per curiam) (evaluating the State’s argument that the Sixth Circuit’s
reliance on evidence not before the state trial court was improper under § 2254(e)). The State
argues that the rule in this section is mandatory. We have not previously ruled whether this
statute is waivable or forfeitable. Because we determine that, even with the additional
evidence, Canales does not prevail, we will not address this point further here.
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demonstrated a reason that we would disturb the law of the case as to this
point. Accordingly, we address the prejudice prong only.
“In assessing prejudice, we reweigh the evidence in aggravation against
the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. To
determine whether Canales has made the requisite showing, we must ask
whether under Texas’s capital sentencing statute, “the additional mitigating
evidence [is] so compelling that there [is] a reasonable probability that at least
one juror could have determined that because of the defendant’s reduced moral
culpability, death [is] not an appropriate sentence.” Kunkle v. Dretke, 352 F.3d
980, 991 (5th Cir. 2003) (internal quotation marks and citation omitted). Such
a reasonable probability exists if “the likelihood of a different result [is]
substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112
(2011).
The dissenting opinion takes the position that, when we review a federal
habeas petition de novo, prejudice is satisfied when the new mitigating
evidence “might have” influenced one juror. See Dissenting Op. at 8–9, 19. We
disagree with this prejudice standard. When the Supreme Court established
the substantial likelihood standard for evaluating prejudice in Richter, it made
no distinction between cases that were reviewed de novo and those that
received deference under the Antiterrorism and Effective Death Penalty Act.
See Richter, 562 U.S. at 111–12. Rather, the Court focused solely on the
reasonable-probability standard for prejudice, as first established in
Strickland v. Washington, 466 U.S. 668, 694 (1984), and clarified that
standard. See Richter, 562 U.S. at 111–12 (establishing the substantial
likelihood standard upon observing that “Strickland asks whether it is
‘reasonably likely’ the result would have been different” (quoting Strickland,
466 U.S. at 696)). Moreover, the Supreme Court’s recent holding in Andrus v.
Texas did not change the law on assessing prejudice. See 140 S. Ct. 1875, 1886
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(2020) (per curiam). The Court rearticulated the prejudice inquiry—“whether
there is a reasonable probability that at least one juror would have struck a
different balance”—and remanded to the state court for consideration of the
prejudice prong consistent with the articulated legal principle. Id. (internal
quotation marks and citation omitted).
A. Aggravating Evidence
The State presented documentary evidence of Canales’s prior
co nvictions, which included: a five-year sentence for theft, a fifteen-year
sentence for sexual assault, and a fifteen-year sentence for aggravated sexual
assault.
The State also presented testimony of Suzanne Hartbarger, Canales’s
sexual assault victim, and Innes. Hartbarger testified that Canales
approached her in a parking lot near her college. Canales told her he was a
police officer investigating a drug sale, in which she had been named as a
suspect. He informed her that she was going to jail and that he would drive
her there. In the car, Hartbarger realized Canales was not a police officer. But
when she told him that she was going to jump out of the car, Canales responded
by telling her that he would “blow [her] away.” After driving for some time,
Canales stopped the car, walked her into the woods, and raped her. Innes
testified that Canales wrote him a coded letter, thinking Innes was still a
member of the Texas Mafia. In the letter, Canales asked Innes to arrange for
the murder of another inmate, Larry Whited, whom Canales suspected of
cooperating with investigators.
Lastly, the State introduced two letters that Canales sent to his fellow
inmates after he was indicted for capital murder. Canales, 765 F.3d at 560–
61. The first letter was the one Canales sent to Innes, asking the Texas Mafia
to murder Whited. Id. at 560. The second letter was one that Canales sent to
another inmate, sharing his thoughts on his capital murder case. Id. at 561.
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Canales wrote that his case was not looking good because a few inmates were
“making matters worse with their mouths.” Id. Canales expressed his belief
“that what goes around, comes around” and that those who spoke will get
“justice in the end.” Id.
B. Mitigating Evidence
Canales’s mitigating evidence in state court consisted of testimony
stating that Canales did not cause trouble, had an aptitude for art, and
received few visits from family, and that he had tried to stop inmates from
fighting. His new mitigating evidence consists of three experts’ reports, which
provide additional evidence of childhood trauma and mental illness and
attempted to set a context for Canales’s participation in Dickerson’s murder,
which we describe briefly below. See ROA.3220.
Canales and his younger sister, Elizabeth, were raised by their alcoholic
mother, Janie Garcia. The new evidence describes abuse from Canales’s
stepfather, joinder at a young age in a gang which attacked him, and periods
of homelessness. While living with his biological father, Canales continued to
receive physical beatings. His father abandoned him when he was thirteen,
and Canales was arrested for car theft and sent to juvenile detention. Due to
early exposure to alcohol by his family, Canales became an alcoholic by age
fourteen.
By eighteen, Canales went back to living with his mother, his siblings,
and his mother’s live-in boyfriend, John Ramirez, another sexual predator.
Ramirez had Canales prosecuted for stealing a check from him, and Canales
went to prison for the offense. Shortly after Canales received parole, he landed
back in prison for two sexual offense convictions; Canales raped a young
woman and sexually assaulted another. Back in prison, Canales joined the
Texas Syndicate, a prison gang. He joined because “you have to get in to fit
in.”
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After he was back on parole and working, Canales’s mother suffered a
brain aneurysm and lost all speech and motor functions. Canales was twenty-
seven. Canales’s situation deteriorated; he turned to drugs and alcohol,
stopped reporting to his parole officer, and returned to prison when his parole
was revoked.
Back in prison, Canales suffered a heart attack as well as mental illness,
including post-traumatic stress disorder (“PTSD”). The Texas Syndicate
learned of Canales’s prior sex convictions and his former membership in the
Latin Kings, and they “ordered a hit” on him. To protect himself, Canales
joined the Texas Mafia, another prison gang that was chaired by his cellmate,
Bruce Richards. As a new recruit, Canales was on probation and had to do
whatever Richards said. Canales contends that he participated in the murder
of Dickerson upon orders of the gang and would have been killed if he had not
participated.
C. Weighing of the Evidence
Canales offered three types of new mitigating evidence: (1) childhood
trauma, (2) mental illness, and (3) coercion (i.e., evidence that Canales would
likely have been killed by the Texas Mafia if he had refused to kill Dickerson
and to write exaggerated notes about his role in the murder). He alleges that
this mitigating evidence would provide the jury with context for his actions,
such that there is a reasonable probability that a juror would have determined
that the death penalty was inappropriate. We disagree. The new mitigating
evidence does not have a substantial likelihood of a different result because it
does not outweigh the aggravating evidence of Canales’s two letters:
(1) requesting that the Texas Mafia murder Whited for cooperating with
investigators, and (2) opining that the inmates who were “making matters
worse with their mouths” by speaking with investigators would likely get
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“justice in the end” because “what goes around, comes around.” See Canales,
765 F.3d at 560–61.
In that regard, Canales’s evidence is unlike the evidence presented in
Wiggins or Williams v. Taylor, 529 U.S. 362 (2000), cases in which the Supreme
Court found prejudice.
2
In Wiggins, the petitioner suffered similar childhood
trauma. 539 U.S. at 535 (noting that “Wiggins experienced severe privation
and abuse . . . while in custody of his alcoholic, absentee mother,” “suffered
physical torment, sexual molestation, and repeated rape [while] in foster care,”
and spent time homeless). But Wiggins also had “diminished mental
capacities,” id. at 535, and lacked “a record of violent conduct that could have
been introduced by the State to offset this powerful mitigating narrative,” id.

2
We also conclude that Canales’s mitigating evidence is unlike the evidence presented
in Rompilla v. Beard, 545 U.S. 374 (2005), and Porter v. McCollum, 558 U.S. 30 (2009) (per
curiam), two additional cases the dissenting opinion relies upon for its argument on this
issue. See Dissenting Op. at 9–11, 18.
In Rompilla, the Court held that new mitigating evidence of an abusive childhood
satisfied the prejudice prong of Strickland because it directly contradicted the evidence given
at sentencing, which included evidence indicating that Rompilla came from a loving family.
545 U.S. at 378, 391–93 (concluding that “[t]he accumulated entries would have destroyed
the benign conception of Rompilla’s upbringing and mental capacity defense counsel had
formed” and created “a mitigation case that [bore] no relation to the few naked pleas for
mercy actually put before the jury”). Here, there was no “benign conception” that Canales
had a good childhood or normal mental capacity. See id. at 391.
In Porter, the defendant argued that new mitigating evidence of his childhood abuse
and military service, which caused him mental trauma, satisfied Strickland’s prejudice
requirement. 558 U.S. at 33. The Supreme Court agreed, holding that the childhood abuse
could explain Porter’s behavior in his relationship with his ex-girlfriend, whom he murdered,
the United States “has a long tradition of according leniency to veterans in recognition of
their service,” and the resulting trauma from his military experience could explain why he
murdered his ex-girlfriend. 558 U.S. at 43–44, 44 n.9. Here, Canales’s mitigating evidence
of childhood abuse and mental illness does little to explain why he participated in the murder.
The coercion evidence, discussed infra at pages 10–11, fails to counter his post-murder
actions of sending letters seeking the murder of those who testified against him and
threatening to murder his sexual assault victim. Cf. Porter, 558 U.S. at 32–33 (setting forth
no evidence that Porter committed or threatened to commit violent felonies before or after
the incident during which he murdered his ex-girlfriend and her boyfriend).

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at 537. Like Wiggins, the petitioner in Williams also had a “nightmarish
childhood” and was “borderline mentally retarded.”
3
529 U.S. at 395–96
(quotation omitted) (noting that Williams’s “parents had been imprisoned for
the criminal neglect of Williams and his siblings” and that he “had been
severely and repeatedly beaten by his father”). The Supreme Court in
Williams held that this childhood trauma and intellectual disability coupled
with Williams’s remorse created a reasonable probability that he was
prejudiced.
4
Id. at 398 (observing that Williams “turned himself in, alerting
police to a crime they otherwise would never have discovered, expressing
remorse for his actions, and cooperating with the police after that”).
Here, there is no such remorse or lack of violent record.
5
The coercion
evidence, whatever one thinks, is powerfully countered by Canales’s two letters

3
In 2014, the Supreme Court noted that its previous opinions used the term “mental
retardation” but that the Court now “uses the term ‘intellectual disability’ to describe the
identical phenomenon.” Hall v. Florida, 572 U.S. 701, 704 (2014).
4
The dissenting opinion contends that the Williams Court held that even “a subset of
the [mitigating] evidence” satisfied the prejudice prong. Dissenting Op. at 13 & n.33. Its
contention comes from one line in Williams, which states: “[T]he graphic description of
Williams’ childhood, filled with abuse and privation, or the reality that he was ‘borderline
mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability.”
Id. (quoting Williams, 529 U.S. at 398 (emphasis added)). But, in the quoted portion of
Williams, the Court faulted the state court for not considering the mitigating evidence that
was advanced at trial: Williams’s confession, remorse, and cooperation. Williams, 529 U.S.
at 398. It acknowledged that while the original mitigating evidence may have been
insufficient to overcome the death penalty, that evidence may have “influenced the jury’s
appraisal of his moral culpability” had the jury been given evidence of Williams’s childhood
or mental illness. Id. The Court then held that Williams’s “entire postconviction record,
viewed as a whole and cumulative of mitigating evidence presented originally, raised ‘a
reasonable probability that the result of the sentencing proceeding would have been different’
if competent counsel had presented and explained the significance of all the available
evidence.” Id. at 399 (emphasis added).
5
The dissenting opinion claims that we are discounting Canales’s mitigating evidence
of his abusive childhood and mental illness and are faulting it for “not neatly aligning with
the evidence in [Williams and Wiggins].” Dissenting Op. at 13. We are not. Rather, we
conclude that Canales’s mitigating evidence of an abusive childhood and mental illness does

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seeking violence toward, including the murder of, those who testified against
him.
6
See Wong v. Belmontes, 558 U.S. 15, 24–25 (2009) (per curiam) (holding
that the defendant’s “cold, calculated” murder and “subsequent bragging about
it would have served as a powerful counterpoint” to his new mitigating
evidence of emotional instability, impulsivity, and neurophysiological
impairment).
7
Canales also had previously threatened to murder his sexual
assault victim. His mitigating evidence does not show that “his violent
behavior was a compulsive reaction rather than the product of cold-blooded
premeditation.” See Williams, 529 U.S. at 398.
In sum, we agree with the district court that there is no reasonable
probability that a juror would have found that the mitigating evidence, both
old and new, outweighed the aggravating evidence. The mitigating evidence
is not “so compelling,” Kunkle, 352 F.3d at 991 (quotation omitted), that it
would tip the balance and establish a “substantial” likelihood of a different

little to strike the balance in Canales’s favor because his aggravating evidence—prior
convictions and threats of death—vastly outweighs it.
6
While the new mitigating evidence states that the Texas Mafia had Canales write
notes to “exaggerate [his] role in Dickerson’s murder,” it does not state that Canales was
forced to write these letters. The dissenting opinion claims that “a reasonable juror could
conclude that the Texas Mafia ordered Canales to write [the two letters]” because Canales
was forced to write a letter by the Texas Mafia on a prior occasion. Dissenting Op. at 16–17.
However, this claim is unwarranted. Canales attempted to discount these letters in his COA
request before this court. See Canales, 765 F.3d at 571–72 (arguing that the State used one
of these letters to unlawfully solicit incriminating evidence). He stated that Innes had asked
him to write a confessional letter, id. at 573, but made no mention of the other letters. Had
Canales been coerced to write these two letters, he should have mentioned it. We should not
grant habeas relief on speculation.
7
The dissenting opinion argues that Belmontes is inapposite because the aggravating
evidence of his cold murder and subsequent bragging was not before the jury but would have
been had his new mitigating evidence been admitted. Dissenting Op. at 17 (stating that
“[t]he Court concluded that the new aggravating and mitigating evidence would cancel each
other out”). However, the prejudice inquiry asks whether there is a reasonable probability
that a juror with all mitigating and aggravating evidence before him or her would find that
death was not an appropriate penalty. See Wiggins, 539 U.S. at 534. It is thus of no moment
whether aggravating evidence is new or was before the sentencing jury.
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result, Harrington, 562 U.S. at 112. Canales committed a cold and calculated
gang-related murder, and he has a history of threatening and seeking murder.
Accordingly, the district court correctly held that Canales has not proven
prejudice and, therefore, is not entitled to federal habeas relief.
We AFFIRM.
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PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
The State put it best: “It’s an incredibly sad tribute that when a man’s
life is on the line, about the only good thing we can say about him is he’s a good
artist.” That sharp sarcasm of the prosecutor’s jury argument had bite only
because defense counsel left Andy Canales’s story untold. The jury heard only
of Canales’s crimes and artistic abilities, not of a tragic childhood rife with
violence, sexual abuse, poverty, neglect, and homelessness, nor of a man beset
by PTSD, a failing heart, and the dangers of prison life.
All this evidence “might not have made [Canales] any more likable to the
jury, but it might well have helped the jury understand” how he got there.
1
In
my view, had the jury heard this evidence, there is a reasonable probability
that at least one juror would have concluded that taking a second life was not
warranted, leaving Canales to live out his life in prison such as it is. I
respectfully dissent.
I
Canales and his younger sister were raised by their alcoholic mother,
Janie Garcia, and abandoned by their father. When they did see their father,
he was drunk or high on cocaine and was often violent. Chronically
unemployed, he paid no child support, leaving Garcia and her children
impoverished, frequently hungry, and occasionally homeless. Often Garcia and
her children could not make the rent, forcing them to move constantly.
By eighteen, Canales had attended 26 schools.
Over the course of his childhood, Canales both suffered and witnessed
horrific violence and sexual assault. At six, he saw a man gunned down in the
street. About that time, the violence came home when his mother married

1
Sears v. Upton, 561 U.S. 945, 951 (2010).
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Carlos Espinoza. For the next six years, Espinoza physically and sexually
abused Canales and his mother and younger sister. Espinoza regularly beat
Canales, stripping him naked, dragging him by the ears, and then whipping
him with a belt. Canales’s sister recalled: “I remember seeing Andy [Canales]
lying naked, curled up in a ball, and Carlos hitting him as hard as he could
with the buckle end of the belt. Carlos would beat Andy until he had welts and
bruises all over his body.” During some of those naked beatings, Espinoza tried
to rape Canales, who was still a child. His mother never intervened to protect
him. Canales also witnessed Espinoza abusing and raping his pre-pubescent
sister. When Canales tried to protect her, Espinoza beat him.
At eight, Canales started shining shoes and selling newspapers on the
streets of Chicago to earn money for his family. There, he was forced to join the
Latin Kings, a powerful gang in his neighborhood. At nine or ten, Canales was
shot at during a drive-by shooting. At twelve, he was stabbed.
After his mother left his stepfather and moved to Texas, Canales was
passed between his mother and father and experienced periods of
homelessness. At thirteen or fourteen, Canales was sent to live with his father
in Houston only to be abandoned there when his father moved to Laredo.
Arrested at thirteen, Canales spent time in juvenile detention and was an
alcoholic by fourteen. He later became addicted to heroin.
When Canales was sixteen, his mother moved in with another alcoholic
and abusive boyfriend, John Ramirez. Ramirez sexually abused the women in
the family and reported Canales for stealing a check from him. Canales’s sister,
Elizabeth, said, “I think John Ramirez wanted Andy [Canales] out of the way
and that is why he pursued Andy’s prosecution for the stolen check. He wanted
access to my mom and Gabriela [Canales’s half-sister] and me. Andy was
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protective of all of us.” Canales went to prison for the stolen check and then
later for two sexual assault convictions.
Paroled for these offenses, Canales started to build a life with help from
a girlfriend. But when his mother suffered a brain aneurysm that left her
without speech or motor function, Canales, “went off the deep end,” gave into
drugs, lost parole, and returned to prison.
At the time of the instant offense, Canales suffered from persistent
depressive disorder, other mental illnesses, and complex PTSD for which he
has never been treated.
He also developed a life-threatening heart condition in
prison, suffering three or four heart attacks. Placed on blood thinners that
prevent normal clotting, Canales bruised easily and, if pricked, would bleed for
hours. Because of his heart condition and the blood thinners, Canales
presented as unable to defend himself, leaving him vulnerable to violence and
exploitation. When the Texas Syndicate ordered a hit on Canales, he was
desperate for protection. His cellmate, Bruce Richards, saved him by securing
his admission to the Texas Mafia, another prison gang. He was now under the
Texas Mafia’s control, dependent on the gang to protect him from certain death
at the hands of the Texas Syndicate. When the Mafia ordered the murder of
Gary Dickerson, a prisoner blackmailing the gang, Canales complied. Then,
when Richards ordered Canales and another inmate to write to Bruce Innes
and exaggerate their role in Dickerson’s murder, Canales again complied.
Richards later explained: “If [Canales] refused to do what I told him[,] I would
have sent him back to the Texas Syndicate, and he would be killed. I saved his
life and he owed me.”
II
The State urges that we cannot consider Canales’s mitigation evidence
at all pursuant to § 2254(e)(2), which bars petitioners who “fail[] to develop”
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the record in state court from introducing new evidence in federal court.
2
The
State had asserted its § 2254(e)(2) objection before another panel of this Court,
which declined to address it.
3
But on remand to the district court, the State did
not raise the issue despite ample time and several opportunities.
4
To the
contrary, it participated fully in shaping the evidentiary record. Only now,
after the district court has expended funding and manpower on this case, does
the State seek to revive its objection. The Majority assumes arguendo that the
evidence of mitigation never presented to the jury is now properly before us.
No assumption is necessary given the State’s admitted failure to raise this
issue in the district court.
The State offers no explanation for its election to fully participate in the
district court in the development of evidence. Instead, it contends that
§ 2254(e)(2) cannot be waived or, alternatively, can only be waived expressly.
First, it analogizes the subsection to § 2254(d)(1), which is a standard of review
and therefore cannot be “waive[d], concede[d], or abandon[ed].”
5
As § 2254(e)(2)
provides no standard of review, the State’s analogy does not persuade. Next,
the State claims that (e)(2) cannot be waived because it contains mandatory

2
28 U.S.C. § 2254(e)(2).
3
Canales v. Stephens, 765 F.3d 551, 571 n.2 (5th Cir. 2014).
4
In the district court, when Canales argued that § 2254(e)(2) did not bar the district
court from holding an evidentiary hearing, the State failed to rebut the argument or even
argue that the court could not admit new evidence. After the district court mistakenly denied
Canales’s request, he moved for reconsideration, presenting the State with another missed
opportunity to raise (e)(2). The district court granted Canales’s motion, and for the next
twelve months, his witnesses conducted investigations and the district court considered the
parties’ various motions. After the close of discovery, the State argued in a 22-page brief that
Canales’s new mitigation evidence did not establish prejudice—but nowhere did it claim that
the district court was barred from reviewing that evidence.
5
Ward v. Stephens, 777 F.3d 250, 257 n.3 (5th Cir. 2015), abrogated on other grounds
by Ayestas v. Davis, 138 S. Ct. 1080 (2018); see also Langley v. Prince, 926 F.3d 145, 162 (5th
Cir. 2019) (en banc) (holding that § 2254(d)(1) cannot be waived by the parties).

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language.
6
But as the Supreme Court has made clear, an objection based on a
“mandatory” rule that is not timely raised is forfeited unless it is
jurisdictional.
7
Section 2254(e)(2) merely sets the conditions under which a
federal habeas court may hear new evidence.
8
It does not control the kinds of
cases that a federal court may hear or the persons over whom a federal court
may exercise authority. It may be forfeited.
9
I also see no basis for applying a
heightened waiver standard to § 2254(e)(2). Congress knew how to require an
express waiver;
10
it simply chose not to do so here. One may see AEDPA as
protecting the sovereign role of the state, an expression of federalism. Yet so
does the Eleventh Amendment—a protection enshrined in our Constitution—
and it is settled that a state can by its litigation conduct relinquish its
sovereign immunity.
11

The State also argues that the Court should consider § 2254(e)(2) sua
sponte. Such exercises of discretion are not automatic but “must in every case
be informed by . . . balancing the federal interests in comity and judicial

6
Even when a claim-processing rule is written in mandatory language, it is
“mandatory” only in the sense that a court must enforce the rule if properly raised by a party.
Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1849 (2019).
7
United States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015) (quoting Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)).
8
Fort Bend, 139 S. Ct. at 1849.
9
The State does not offer and I have not found any case holding that § 2254(e)(2) can
never be waived. The Sixth Circuit’s decision in Moore v. Mitchell comes closest, but its
holding is cabined to cases where admitting new evidence would change the standard of
review. 708 F.3d 760 (6th Cir. 2013).
10
See, e.g., 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the requirement unless the State,
through counsel, expressly waives the requirement.”) (emphasis added).
11
Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621 (2002) (holding that
to ensure that states do not gain “unfair tactical advantages,” a state’s voluntary removal to
federal court waives sovereign immunity).

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economy against the petitioner’s substantial interest in justice.”
12
The interest
in comity wanes when a state participates in discovery and only raises an
objection on appeal. So too when a state makes a tactical decision to develop
the record but later objects to its consideration. Comity does not require federal
courts to reward a state’s carelessness or gamesmanship.
13
As the State offers
no explanation for its failure here, comity offers it little aid. For the same
reasons, judicial economy and the interest of justice are undermined by the
failure to object until significant time had elapsed and the district court and
parties had incurred substantial costs. The federal government alone incurred
over $55,000 in direct expenses. We ought not allow the State to run from the
evidence it participated in developing. We should conclude that the State has
forfeited its objection under § 2254(e)(2).
III
A
In capital cases, “the fundamental respect for humanity underlying the
Eighth Amendment” requires the jury to make an individualized assessment
of whether death is warranted.
14
“[E]vidence about the defendant’s background
and character is relevant” to this assessment “because of the belief, long held
by this society, that defendants who commit criminal acts that are attributable
to a disadvantaged background, or to emotional and mental problems, may be

12
Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998).
13
See, e.g., Granberry v. Greer, 481 U.S. 129, 132 (1987) (declining “to adopt a rule
that would permit, and might even encourage, the State to seek a favorable ruling on the
merits in the district court while holding [its] defense in reserve for use on appeal if
necessary”).
14
Penry v. Lynaugh, 492 U.S. 302, 316 (1989) (quoting Woodson v. North Carolina,
428 U.S. 280, 304 (1976) (plurality opinion)).

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less culpable than defendants who have no such excuse.”
15
A process affording
no significance to such evidence treats the convicted defendant “not as [a]
uniquely individual human being[], but as [a] member[] of a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of
death.”
16

Consistent with these constitutional requirements, a Texas jury may
impose the death penalty only if it unanimously finds the absence of “sufficient
mitigating circumstance or circumstances to warrant that a sentence of life
imprisonment without parole rather than a death sentence be imposed.”
17
In
so doing, the jury must “tak[e] into consideration all of the evidence, including
the circumstances of the offense, the defendant’s character and background,
and the personal moral culpability of the defendant.”
18

Contending that trial counsel presented almost no mitigating evidence,
Canales asserts an ineffective assistance claim through § 2254. Because the
state habeas court dismissed Canales’s claim as successive,
19
AEDPA
deference does not apply and we review de novo Canales’s allegation of
ineffective assistance.
20
Having already shown cause, Canales need only show
prejudice, “a reasonable probability that, but for [trial] counsel’s
unprofessional errors, the result of the proceeding would have been

15
Id. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,
concurring)).
16
Woodson, 428 U.S. at 304.
17
TEX. CODE CRIM. PROC. ANN. art. 37.071. § 1(e)(1), (f) (West 2020).
18
Id. art. 37.071. § 1(e)(1).
19
Ex parte Canales, No. WR-54789-02, 2008 WL 383804 (Tex. Crim. App. Feb. 13,
2008).
20
See Roberts v. Thaler, 681 F.3d 597, 603 (5th Cir. 2012).

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different.”
21
A probability is reasonable if it is “sufficient to undermine
confidence in the outcome.”
22
A prisoner need not establish that “counsel’s
deficient conduct more likely than not altered the outcome in the case.”
23

As a Texas jury may impose the death penalty only by a unanimous vote,
a petitioner raising an ineffective assistance claim must show that, but for
counsel’s deficiency, “there [is] a reasonable probability that at least one juror
could have determined that because of the defendant’s reduced culpability,
death [is] not an appropriate sentence.”
24
That is, there need only be a
reasonable probability of one of the twelve jurors “harbor[ing] a reasonable
doubt” that Canales deserved the death penalty.
25
This is settled. A six-justice
majority of the Supreme Court recently made plain that the bar for showing
prejudice in these circumstances is low: “[B]ecause [the defendant’s] death
sentence required a unanimous jury recommendation, prejudice here requires
only ‘a reasonable probability that at least one juror would have struck a
different balance’ regarding [his] ‘moral culpability.’”
26

“In assessing prejudice, we reweigh the evidence in aggravation against
the totality of available mitigating evidence.”
27
This is necessarily a “probing

21
Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Canales, 765 F.3d at
569 (finding cause due to sentencing counsel’s failure to “hire a mitigation specialist,
interview family members or others who knew him growing up, or ‘collect any records or any
historical data on his life’”).
22
Strickland, 466 U.S. at 694.
23
Id. at 693.
24
Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir. 2003) (internal quotation marks and
citation omitted).
25
Buck v. Davis, 137 S. Ct. 759, 765 (2017).
26
Andrus v. Texas, No. 18-9674, 2020 WL 3146872, at *8 (U.S. June 15, 2020) (per
curiam) (emphasis added) (quoting Wiggins v. Smith, 539 U.S. 510, 537–38 (2003)).
27
Wiggins, 539 U.S. at 534.

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and fact-specific analysis,”
28
in which we look to Supreme Court precedent for
guidance, while recognizing that it does not yield a mandatory list of mitigating
facts for establishing prejudice.
29

In Williams v. Taylor, Williams was sentenced to death for robbery and
murder.
30
After Harris Stone refused to lend him a “couple of dollars,” Williams
killed Stone with a mattock.
31
“The murder . . . was just one act in a crime
spree that lasted most of Williams’s life.”
32
In the months following that
murder, Williams “brutally assaulted” an elderly woman, leaving her in a
vegetative state.
33
He also “stole two cars, set fire to a home, stabbed a man
during a robbery, set fire to the city jail, and confessed to having strong urges
to choke other inmates and to break a fellow prisoner’s jaw.”
34
Two expert
witnesses also testified that “there was a ‘high probability’ that Williams would
pose a serious continuing threat to society.”
35
At sentencing, the jury learned
that Williams sent the police an anonymous letter expressing remorse for
killing Stone and assaulting the elderly woman. After the police traced the
letter back to Williams, he confessed and cooperated with their investigation.
Nevertheless, the jury concluded his remorse was not enough to overcome the

28
Sears, 561 U.S. at 955.
29
See Andrus, 2020 WL 3146872, at *8 n.6 (“The concurring opinion [in the state
court], moreover, seemed to assume that the prejudice inquiry here turns principally on how
the facts of this case compare to the facts in Wiggins. We note that we have never before
equated what was sufficient in Wiggins with what is necessary to establish prejudice.”).
30
529 U.S. 362 (2000).
31
Id. at 367–68.
32
Id. at 418 (Rehnquist, J., concurring in part and dissenting in part) (quoting
Williams v. Taylor, 163 F.3d 860, 868 (4th Cir. 1998)).
33
Id. at 368 (majority opinion).
34
Id. at 418 (Rehnquist, J., concurring in part and dissenting in part) (quoting
Williams, 163 F.3d at 868); see also id. at 368 (majority opinion).
35
Id. at 369-70 (majority opinion).

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significant aggravating evidence and sentenced him to death. Despite AEDPA
deference and Williams’s horrific crimes, the Supreme Court held that
Williams was prejudiced by counsel’s failure to introduce significant mitigating
evidence and therefore entitled to a resentencing.
36
It explained that “the
graphic description of Williams’ childhood, filled with abuse and privation, or
the reality that he was ‘borderline mentally retarded,’ might well have
influenced the jury’s appraisal of his moral culpability.”
37

In Rompilla v. Beard, Rompilla was sentenced to death for murdering
James Scanlon. Rompilla beat Scanlon with a blunt object, stabbed him sixteen
times in the neck and head, and set his dead body on fire—a murder by
torture.
38
This was not Rompilla’s first crime: He had also previously been
convicted for assault and rape.
39
Despite his brutal crimes, the Court held that
Rompilla was prejudiced by defense counsel’s failure to uncover mitigation
evidence that Rompilla’s parents were alcoholics who fought violently and
frequently beat him and his siblings. He also sustained brain damage and
suffered extreme punishments, deprivation, and social isolation.
40
“This
evidence,” the Court held, “adds up to a mitigation case that bears no relation
to the few naked pleas for mercy actually put before the jury [at sentencing].”
41

Because the mitigation evidence “might well have influenced the jury’s

36
Id. at 399.
37
Id. at 398.
38
545 U.S. 374, 377–78 (2005).
39
Id. at 383.
40
Id. at 391–92.
41
Id. at 393.

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appraisal of Rompilla’s culpability,” the Court held that he was entitled to
resentencing.
42

B
Informed by these decisions, we turn to the mitigation evidence the jury
in this case never heard. In short, the jury “heard almost nothing that would
humanize [Canales] or allow them to accurately gauge his moral culpability.”
43

Other than his crimes, the jury only knew that Canales was a gifted artist and
a peacemaker in prison.
44
As a result—and it bears repeating—the prosecutor
was able to argue in response: “Mitigating evidence folks—it is unbelievably
sad—it’s an incredibly sad tribute that when a man’s life is on the line, about
the only good thing we can say about him is he’s a good artist.”
As in Rompilla, Canales’s new mitigation evidence “adds up to a
mitigation case that bears no relation to the few” pieces of evidence “actually
put before the jury” at sentencing.
45
The jury did not learn that Canales had
the “kind of troubled history” that the Supreme Court has repeatedly “declared
relevant to assessing a defendant’s moral culpability”: a childhood plagued by
poverty, neglect, addiction, sexual abuse, and persistent violence.
46
Nor did it

42
Id. The Majority argues that this case offers Canales no assistance because
Canales’s jury, unlike Rompilla’s, had “no ‘benign conception’ that Canales had a good
childhood or normal mental capacity.” In Rompilla, defense counsel failed to review materials
provided by the prosecution, instead resting his mitigation statement on the defendant’s own
description of his childhood as normal. The Court concluded that if counsel had reviewed
these materials, they “would have destroyed the benign conception of Rompilla’s upbringing
and mental capacity defense counsel had formed from talking with Rompilla.” Id. at 391
(emphasis added). Contrary to the Majority’s implication, the Court was addressing the
“benign conception” of defense counsel, not the jury.
43
Porter v. McCollum, 558 U.S. 30, 41 (2009).
44
Canales, 765 F.3d at 569.
45
Rompilla, 545 U.S. at 393.
46
Porter, 558 U.S. at 41 (quoting Wiggins, 539 U.S. at 535); see, e.g., Rompilla, 545
U.S. at 390–93 (granting relief where additional mitigation evidence regarding the

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learn that Canales’s heart attacks and required medication left him vulnerable
to the control of gang leaders, or that Canales would have been killed by a
prison gang if he refused to assist in eliminating an enemy of the gang. Nor did
it hear expert witness testimony that at the time of the offense, Canales
suffered from complex PTSD that had not been treated. Nor did the jury hear
from witnesses, such as Canales’s sister or his former girlfriend, who would
have humanized Canales and presented his good qualities.
47
For example,
Canales’s sister could have explained how, even as a child, Canales tried to
protect her when her stepfather beat and sexually assaulted her. As she stated
in her declaration:
Andy was a throw away child. . . . He never had a chance. . . . If
only my parents would have given Andy a little more attention, he
could have grown up to have a family and a good life. He was
always brave when I needed him to be. I will forever be grateful
for that.
The Majority appears to frame the prejudice inquiry as a comparison of
the facts here to the facts in Wiggins and Williams, faulting Canales’s
mitigating evidence for not neatly aligning with the evidence in those cases.
This approach implicitly rests on the view that when assessing prejudice, we
may go as far as Wiggins and Williams but no farther—a view the Supreme

defendant’s abusive, impoverished childhood and alcohol-related causes of the defendant’s
juvenile incarcerations might have influenced the jury’s evaluation of culpability); Wiggins,
539 U.S. at 535 (recognizing the “powerful” mitigating effect of evidence that the defendant’s
childhood was rife with “severe privation and abuse,” “physical torment, sexual molestation,
and repeated rape”); Williams, 529 U.S. at 398–99 (holding state court decision denying
habeas relief was unreasonable, as new mitigation evidence, including “the graphic
description of [the defendant’s] childhood, filled with abuse and privation, or the reality that
he was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of his
moral culpability”).
47
See Porter, 558 U.S. at 41 (“The judge and jury at Porter’s original sentencing heard
almost nothing that would humanize Porter[.] ”).

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Court rejected in Andrus, observing that it has “never before equated what was
sufficient in Wiggins with what is necessary to establish prejudice.”
48
In
Wiggins, the Court explained that it had granted relief in Williams despite
weaker mitigating evidence and stronger aggravating evidence.
49
The
Majority’s effort to distinguish Canales’s case from Wiggins truncates the
necessary inquiry.
It is also significant
that Williams did not attempt to cabin the array of
prejudicial errors or otherwise corral their presentation. There, the Court,
applying AEDPA deference, held the state habeas court’s failure to find
prejudice was not merely incorrect but also unreasonable.
50
That is, the
evidence that Williams had been prejudiced was not a close call. It was so
strong that no fair minded jurist could disagree.
51
It is also telling that
although the Supreme Court has reversed lower court decisions granting
habeas relief since Williams, the mitigation evidence in those cases did not
approach the strength of the evidence in Williams or the strength of the
evidence here.
52

The Majority claims that Canales’s mitigating evidence is “unlike the
evidence presented in Wiggins or Williams.” But its own account of these cases
reveals the overwhelming similarities. Canales and Wiggins both suffered

48
Andrus, 2020 WL 3146872, at *8 n.6.
49
Wiggins, 539 U.S. at 537–38.
50
Williams, 529 U.S. at 399.
51
Harrington v. Richter, 562 U.S. 86, 101 (2011).
52
Cullen v. Pinholster comes closest, but there the Court applied AEDPA deference.
563 U.S. 170, 202 (2011). Plus, the Court expressly stated that Rompilla and Williams
“offer[ed] no guidance,” believing—mistakenly as to Williams—that those cases had “not
appl[ied] AEDPA deference to the question of prejudice.”

Id.; see Andrus, 2020 WL 3146872,
at *8 n.6 (stating that Williams found “prejudice after applying AEDPA deference”) (citing
Williams, 529 U.S. at 399).

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“severe privation and abuse . . . while in custody of [an] alcoholic, absentee
mother,” “physical torment, sexual molestation, and repeated rape,” and
periods of homelessness. Similarly, Canales and Williams both had a
“nightmarish childhood,” coming from alcoholic families, receiving little
schooling, and suffering neglect and severe and repeated beatings. In addition,
both Canales and Williams had friends and family who could have testified
that they had redeeming qualities.
53
Yet the Majority gives no weight to these
parallels, focusing instead on mitigating factors present in those cases but not
this one: remorse (present in Williams, but not Wiggins) and a lack of a violent
record (present in Wiggins, but not Williams). In so doing, it “discount[s] to
irrelevance the evidence of [an] abusive childhood,” a practice the Supreme
Court has characterized as “objectively unreasonable.”
54

The Majority’s distinctions fail to move the needle. Comparing Canales
to Wiggins, the Majority first criticizes Canales for having a record of violence.
But it fails to acknowledge that the Supreme Court granted Williams relief
even though he had committed crimes more heinous than Canales’s—a lifelong
criminal spree, killing one man, stabbing another, “savagely beat[ing] an
elderly woman” into a vegetative state, and setting a house on fire.
55
Similarly,
Rompilla’s murder by torture and convictions for rape and other violent

53
Williams, 529 U.S. at 415–16 (O’Connor, J., concurring) (faulting the state court for
failing to consider the existence of “friends, neighbors and family of [Williams] who would
have testified that he had redeeming qualities”).
54
Porter, 558 U.S. at 41, 43 (holding it was unreasonable for the state habeas court to
“discount” the mitigation evidence because the “kind of troubled history” involving abuse at
the hands of a parent, alcoholism, and brain damage is “relevant to assessing a defendant’s
moral culpability”).
55
Williams, 529 U.S. at 368.

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felonies did not foreclose the Supreme Court’s finding prejudice and ordering
a resentencing.
56

Next, comparing Canales to Williams, the Court faults Canales for
failing to show remorse. But in Williams, the jury had already heard evidence
of Williams’s remorse when it sentenced him to death. It was not the remorse
but defense counsel’s failure to introduce other mitigating evidence, like
Williams’s horrifying childhood, that was prejudicial. The Supreme Court has
never treated remorse as a signal marker for relief. Despite no finding of
remorse in Rompilla, Porter, or Wiggins, the Supreme Court concluded that
the defendants were entitled to relief.
57

The Majority also declines to address the mitigating evidence present
here but absent from Williams. A few of the difficulties in Canales’s childhood
but not Williams’s bear mention: At six, Canales witnessed a man get shot to
death in the street and saw his stepfather rape his five-year old sister; that
year his stepfather sexually abused him as well; at eight, he was forced into a
gang; at ten, he was shot at in a drive-by shooting; and by twelve, he was
stabbed. No doubt Williams also had distinct childhood difficulties that cannot
easily be equated with Canales’s. But that is precisely why we are instructed

56
Rompilla, 545 U.S. at 377–78, 383. Our Court has also granted relief in more severe
cases. In Walbey, we granted relief even though the defendant had invaded a young woman’s
home, lay in wait for the woman to return, then bludgeoned her to death while the victim
suffered for ten to fifteen minutes. After she died, he repeatedly stabbed her corpse with a
butcher knife and barbecue fork. See Walbey v. Quarterman, 309 F. App’x 795 (5th Cir. 2009)
(per curiam) (unpublished); Walbey v. State, 926 S.W.2d 307, 309 (Tex. Crim. App. 1996); see
also Gardner v. Johnson, 247 F.3d 551, 554 (5th Cir. 2001) (granting relief where the
defendant picked up two fourteen-year-old runaway hitchhikers and stabbed them multiple
times, killing one and leaving the other wounded).
57
Porter 558 U.S. at 41; Rompilla 545 U.S. at 393; Wiggins, 529 U.S. at 398.

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to “reweigh” the evidence ourselves—to avoid the drift of precedent into a
paint-by-numbers guide to prejudice.
58

C
The Majority gives little weight to the evidence that Canales would have
been murdered if he refused to assist in the killing or comply with the Texas
Mafia’s other orders. It appears to discredit the reach of Richards’s sworn
declaration, which states that Canales acted under threat of death. Richards
was released from prison in 2012 and made his sworn declaration in 2016. The
State failed to develop any evidence suggesting that Richards lied or even had
a reason to lie. And in the eyes of the jury, Richards’s credibility would have
been enhanced when juxtaposed with that of Innes, a member of the prison
cabal who turned for the State in exchange for a plea bargain. As it was, the
jury heard only from Innes. The jury knew nothing of Richards’s testimony,
defense counsel having failed to interview him.
Despite conceding that Richards and the Texas Mafia forced Canales to
write the first letter, the Majority assumes he was free from their control when
he wrote the other two letters.
59
But a reasonable juror could conclude that the
Texas Mafia ordered Canales to write them. Having ordered Dickerson’s

58
Wiggins, 539 U.S. at 534; see Andrus, 2020 WL 3146872, at *8 n.6 (reprimanding
the state court for “assum[ing] that the prejudice inquiry . . . turns principally on how the
facts of [its] case compare to the facts in Wiggins”).
59
The Majority claims that when “Canales attempted to discount these letters in his
COA request,” “[h]e stated that Innes had asked him to write a confessional letter but made
no mention of the other letters.” In Canales’s first COA request, he asserted a Massiah claim,
arguing that Innes improperly solicited letters on behalf of the State. But this claim has no
bearing on whether Richards forced Canales to write letters to Innes. And even if it is
relevant, the Majority is mistaken: Canales’s COA request addressed two letters. See Brief
for Appellant at 28, Canales v. Stephens, 765 F.3d 551 (5th Cir. 2014) (No. 12-70034) (“Bruce
Innes, the State’s primary witness, was acting as an undercover state agent when he solicited
two powerfully inculpatory notes from Canales.”) (emphasis added).

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murder, the prison gang had a strong motive to eliminate anyone suspected of
cooperating with the State’s investigation into the killing. Richards ordered
Canales to write Innes, and, as even the State acknowledged, Canales would
“do ‘whatever it took’ to retain” the Texas Mafia’s protection. Canales’s second
letter also indicates that the Texas Mafia was participating in the efforts to
kill Whited, a prisoner suspected of cooperating with the State. After
requesting that Innes kill Whited, the letter states: “Now, I will also get with
Mr. JR [the President of the Texas Mafia] on the others who are involved and
can help get it [i.e., the efforts to kill Whited] all in order.”
60

The Majority also sees the coercion evidence to be “powerfully countered”
by Canales’s subsequent letters, citing Wong v. Belmontes.
61
There, if counsel
had introduced additional mitigating evidence, the state would have countered
with new aggravating evidence that Belmontes had committed another murder
in cold blood and then bragged about it. The Court concluded that the new
aggravating and mitigating evidence would cancel each other out and have no
effect on the jury.
62
Here, there is only new mitigating evidence. The jury
already learned about Canales’s crimes, but never heard one word about the
evidence that he acted under duress.
63
Ultimately, with competent counsel, the
jurors could see his role in the killing and his subsequent boasting in a different
light—as part of his continuing effort to appease the gang.
The Majority still urges that the coercion evidence is not enough because,

60
Canales, 765 F.3d at 560.
61
558 U.S. 15, 24–25 (2009).
62
Id.
63
The Majority states that we must consider all of the evidence. True enough, but as
Strickland observes, “This is not a case in which the new evidence ‘would barely have altered
the sentencing profile presented to the sentencing judge.” Porter, 558 U.S. at 41 (quoting
Strickland, 466 U.S. at 700).

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unlike in Williams, it “does not show that ‘[Canales’s] violent behavior was a
compulsive reaction rather than the product of cold-blooded premeditation.’”
64

But Williams’s “compulsive reaction” and the lack of premeditation were not
central to the holding.
65
In Porter, the Supreme Court found that the defendant
was prejudiced despite committing a murder that was “premeditated in a
heightened degree.”
66
And it concluded that the state court’s denial of relief
was not merely mistaken but objectively unreasonable.
67
While it is true that
Canales was under the control of a prison gang instead of a neurological defect,
both men were driven to violence by forces outside their control: a compulsive
reaction for Williams, the menace of certain death for Canales.
Properly represented, Canales has a substantial argument that he killed
only under the threat of his own death, and he is entitled to offer the jury an
understanding of how he got to where he was and why he did what he did. The
evidence of his tragic childhood and the threats to his life would do both.
IV
Capital cases bifurcate guilt and punishment with both phases before a
jury. These are separate inquiries, mandated by the unique gravity of “death
by public authority” and “the fundamental respect for humanity underlying
the Eighth Amendment.”
68
The jury first determines whether the defendant
committed the charged crimes. If guilt is found, the trial moves to the second
stage, where the jury now asks, “Who is this person we have convicted?” At the
least, the convicted defendant will be held accountable by a life sentence. But

64
Williams, 529 U.S. at 398.
65
Id.
66
See Porter, 558 U.S. at 42.
67
Id.
68
Lockett v. Ohio, 438 U.S. 586, 605 (1978); id. at 604 (quoting Woodson, 428 U.S. at
304).
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to determine if death is warranted, the jury requires a full accounting of the
defendant’s life, covering not only his crimes but also the forces that brought
him to this day. This is no abstract watery-eyed inquiry. It is demanded by the
mixed question of morality and fact posed to the jury. The jury must make “a
reasoned moral response to the defendant’s background, character, and
crime.”
69
But deprived of the defendant’s life story, the jury cannot see the
defendant as a “uniquely individual human being,” let alone make a “reasoned
moral response.”
70
For that reason, we cannot count as just a system that
tolerates failure to bring to the jury a substantial mitigation defense when one
is available.
Here, incompetent counsel indisputably deprived Canales of the
opportunity to give the jury insight into his harrowing background—the heart
of his defense. The jury learned only that Canales was a good artist. It was
never presented with the voluminous mitigating evidence now before this
Court and could only assume that there was none, as the prosecution so
powerfully argued. Had the jury heard this evidence, there is a reasonable
probability at least one of its members would have found the death penalty
unwarranted.
The decision to sentence a defendant to death is a difficult one that defies
straightforward analogical reasoning, quibbling distinctions, and easy legal
conclusions. To these eyes, it inevitably reflects a jury’s gut-level hunch about
what is just, given the totality of the circumstances. Such a decision is best left
to the collective wisdom of a jury fully apprised of the facts. A reflection of the
considered judgment of our constitutional system, the jurors are in the box as

69
Penry, 492 U.S. at 319 (emphasis omitted) (quoting Brown, 479 U.S. at 545).
70
Id.; Woodson, 428 U.S. at 304.
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citizens, laymen representing a cross-section of the community. The federal
bench is no substitute. We bring an insular perspective, reflecting our unique
training, professional values, and office—a perspective distinct from that of the
accountant, the architect, and the physician, to say nothing of the taxi driver,
the cashier, and the plumber. Able as federal judges may be, they live in a
world distant from the realities of poverty with its attending consequences—
inapt representatives of the cross-section of the community from which this
judgment of basic morality is drawn.
As capital punishment has traveled its long and tortuous path, we have
kept faith in the outcome of its attending adversarial process of trial by jury.
We do so ever mindful that this process can be no better than the weakest leg
of the courtroom—judge, prosecution, defense counsel. We cannot leave
standing outcomes flawed by a failure of any of these legs. As the demand for
the strength of this trinity is inherent in the task our government delegates to
twelve citizens—a judgment discerning a blend of fact and morality—the
mitigation case is the battleground of capital trials. Defense counsel here
wholly failed in his duty to present such a case. Our adversarial system works
only when it is adversarial. I dissent.

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