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Click here for the full text of this decision FACTS:Carlos Granados appeals from a final judgment of the United States District Court for the Western District of Texas, denying his petition for writ of habeas corpus claiming constitutional error in his conviction and death sentence. At the sentencing phase, defense counsel called Walter Quijano, Ph.D., a clinical psychologist, as an expert witness on the jury issue of future dangerousness. Quijano never examined or tested Granados. He expressed his opinion in response to questions of defense counsel, who posed hypotheticals tracking the facts of the case and related personal circumstances of Granados. Quijano listed 22 factors predictive of future dangerousness on a chart before the jury. The list included “race or ethnicity.” He told the jury that it was one of several statistical facts that “if you just took the characteristics of, quote, violent people would come up over and over again in statistical studies.” He also made the following suggestion: “you first look at the characteristics of the person you are trying to study (determine which can be controlled) and make a judgment about the probability of the person’s future dangerousness.” He told the jury that race is an example of a characteristic that cannot be controlled, and then told the jury that “for a person of defendant’s characteristics in a maximum security prison, the probability is that he will not constitute a continuing danger to the prison society.” In recommending that habeas relief be denied, the state trial judge made explicit findings that neither of the two defense counsel nor the state’s attorney made any mention of race or ethnicity or “suggested in any manner that a decision on future dangerousness should be based on race or ethnicity.” He rejected Granados’ Strickland v. Washington, 466 U.S. 668 (1984), claim, persuaded that trial counsel “exercised reasonable judgment in deciding to use Dr. Quijano as an expert witness on the special issues of mitigation and future dangerousness.” HOLDING:Affirmed. At trial, counsel first retained a psychiatrist and psychologist to examine Granados and testify as experts regarding the probability of Granados committing violent acts in the future. Then counsel changed course, concluding that their testimony might be more harmful than helpful, a shift that led to the accused strategy. The court finds no fault in this decision. Counsel also chose to change their approach at trial to future dangerousness inevitably a brooding concern of jurors and most often the point of engagement between the prosecutor and defense. They elected to offer the jury clinical and statistical data on the question of future dangerousness in an effort to have the case viewed in those terms rather than remain focused on Granados and the assaults, accented by the prosecution. The strategy included facing the reality that blacks and latinos had a disproportionate presence in the state prisons, a social phenomenon about which counsel could not assume the jury was ignorant. This approach led directly to the hiring of Quijano, a clinical psychologist with a subspecialty in correctional psychology. He was prepared to speak about the statistics of recidivism, as well as prison life and conditions. And, with the use of hypothetical questions, Quijano was able to relate the data to the life and conduct of Granados. This approach avoided the necessity of personal testing and examination, the door opener to examination by experts engaged by the state. Quijano presented the case in quantitative terms more in the manner of clinical disinterest and less in the manner of subjective commentary and evaluation of Granados. The state court’s application of Strickland and rejection of the claim of ineffective assistance of counsel was not unreasonable, the court concludes. Granados urges that the Texas mitigation issue is constitutionally flawed in that it does not require the state to prove beyond a reasonable doubt the absence of mitigating circumstances. “As we understand the argument, this is because the absence of mitigating evidence is an aggravating circumstance whose presence increases the maximum punishment for capital murder from life to death.” The state was required to prove beyond a reasonable doubt every finding prerequisite to exposing Granados to the maximum penalty of death. Texas did not violate any principle of Apprendi v. New Jersey, 530 U.S. 466 (2000), or Ring v. Arizona, 536 U.S. 584 (2002), in the trial of this case. Specifically, it did not do so by not asking the jury to find an absence of mitigating circumstances beyond a reasonable doubt in addition to questions it required the jury to answer. OPINION:Higginbotham, J.; Jolly, Higginbotham and Wiener, J.J.

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