United States Court of Appeals Fifth Circuit FILED October 28, 2003 Charles R. Fulbruge III Clerk In the United States Court of Appeals for the Fifth Circuit m 03-50485 A NDREW F LORES , Petitioner-Appellant, VERSUS D OUG D RETKE , D IRECTOR , T EXAS D EPARTMENT OF C RIMINAL J USTICE , C ORRECTIONAL I NSTITUTIONS D IVISION , Respondent-Appellee Appeal from the United States District Court for the Western District of Texas m SA-98-CV-1169 Before H IGGINBOTHAM , S MITH , and C LEMENT , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Andrew Flores applies for a certifica te of a ppealability (COA) of the denial of his * Pursuant to 5 T H C IR. R. 47.5, the cou rt has (continued...) * (...continued) determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. petition for writ of habeas corpus. 28 U.S.C. § 2253(c)(1)(A); M iller-El v. Cockrell , 537 U.S. 322,, 123 S. Ct. 1029, 1039 (2003).

We deny the application.

I. In determining whether to issue a COA, we conduct an overview of the petitionerÂ’s claims and make a general assessment of their merits.

The standard of review is whether a petitioner § 2253(c)- (1)(A); Miller-El , 537 U.S. at, 123 S. Ct. at 1039. This threshold showing does not require the petitioner to demonstrate that his appeal will succee d . Id. Where a district court rejects a claim on the merits, the petitioner § 2254(d).§ 2254(d)(1)), or the decision § 2254(d)(2). Section 2254(d)(1) speaks to que sti ons of law and mixed questions of fa ct and law resolved by the state courts. S ee Moore v. Johns on , 225 F.3d 495, 501(5th Cir. 2000 ). The phrase § 2254(e)(1), a federal habeas court will presume correct the factual findings of the state court unless t he petitioner “rebut[s] the presumption of correctnes s by clear and convincing evidence.” S ee also Miller-El , 537 U.S. at, 123 S. Ct. at 1042.

II. Flores asserts that he was not competent to make his plea and that it was not entered into knowingly, intelligently, and voluntarily. With respect to his competence, Flores asserts that he suffers from psychological and neurological impairm ent s t hat prevented him from completely understanding the proceedings aga inst him. Therefore, he argues, there is room for reasonable jurists to differ on whether his impairment s prevented him from being able to make the rational choices necessary to enter a guilty plea.

The test for deciding compet ence to enter a gu ilt y plea is “whether [defendant] has sufficient present abilit y to consult with his lawyer w ith a reasonable degree of ration a l understanding SS and whether he has a rational as well as factual understanding of the proceed ings against him.” D usky v. United States , 362 U.S. 402, 402 (1960) (per curiam); see also Godinez v. M oran , 509 U.S. 389, 398-99 (1993). Because a state court’s com p etency finding is presumed correct, a petitioner bears a heavy burden in con testi ng his competency du ring federal collateral review. DeVille v. Whitl e y , 21 F.3d 654, 656 (5th Cir. 1994).

In arguing that he was incompetent to enter a guilty plea, Flores relies on (1 ) a history of childhood sexual and physical abuse, long-term drug abuse, and resulting emotional and organic brain impairments; (2) the testimony of psychi at rist Ray mond Potterf at the evidentiary heari n g held during the state habeas proceeding, which Flores contends established that, because o f his mental impairments, he tends to respond to authori ty figures in “almost a frozen status . . . very fearful”; (3) Potterf’s testimony th at Fl ores would “probably go along with” a directive from an attorney ; and (4) Potterf’s suggestion that if Flores were d irect ed by an authority figure, he would ple a d guilty to “take the choice that would get him out of the situation as quickly as possible.” Potterf, however, disavowed any personal knowledg e o f, and did not express any opinion as to whether, Flores actually experienced hi s “frozen state” at a t ime near entering his guilty plea, or that he felt pressured to plead guilty by his attorney.

Ultimately, P o t terf expressed the opinion that Fl o res was competent to enter his guilty plea. Moreover, Flores has presented no evidence that he suffered from a “froz en status” at o r near the time he entered his guilty plea.

During trial, the state judge observ ed that “[t]hroughout the proceedings, from pre-trial through his punishment phase, [Flores] displayed through his testimony, his mannerisms, his disposition, and his behavior, that he was competent as defined.” Moreover, the federal district court noted that there is no evidence that Flores’s attorney ever asked or pressured him t o plead guilty.

A ccordingly, the state court mad e no “unreasonable i n terpretati on of the facts in light of the evidence presented,” Godinez , 509 U.S. at 400, in c o ncluding that Flores was competent to enter a guilty plea.

Although Flores also asserted that his guilty plea was not made knowing ly, intelligently, and voluntarily, 1 he was admonished at length by the trial court regarding the nature and consequences of a guilty plea. As the federal district court observed, Flores represented, on the record in open court, that he was pleading guilty because he was g uilty and for no other reason, that no threats or promises induced his plea, that he understood that he would receive either a life sentence without parole for thirtyfive years or the death penalty, that he was waiving the right to a jury trial, that he was pleadi ng o f his own free will, and that he understood that his plea was an admission to all the elements of his offense. Flores argues that despite all this, his aforement ioned mental and emotional impairments forced him to respond to the authority of the court in a fearful and “frozen status.” Again, he relies on Potterf’s testimony. To the contrary, however, the trial court’s obse rvation of Flores’s demeanor during the guilty plea hearing and throughout the trial gave no indication that Flores experienced such an episode. He likewise has produced no evidence that he experienced the “frozen status” about which Potterf speculated.

We see no reason to differ with the district courtÂ’s conclusion that FloresÂ’ plea was knowing, intelligent , and voluntary.

Accor dingly, the state court made no “unreaso n able interpretation of the facts in light of evidence presented” in so concluding. 1 See Godinez , 509 U.S. at 400; B oykin v. Alabama , 395 U.S. 238, 244 (1969); T aylor v .

Whitney , 933 F.2d 325, 329 (5th Cir. 1991).

See Godinez , 509 U.S. at 400. III. Flores contends that his trial attorney was ineffective in two respects, depriving him of h is Sixth Amendment right to counsel. First , he argues that counsel was inadequate by failin g to object to the trial courtÂ’s decision to grant the prosecutorÂ’s challenge for ca use of a venireman, which failure waived the issue for appellate review. Second, Flores asserts that his attorney failed to present mitigating details about his background and history, which he suggests would have swayed j urors to spare his life.

To prev ail o n a claim of ineffective assistance, a habeas petitioner must satisfy the twopronged test in Strickland v. Washington , 466 U.S. 668, 687 (1984). He must show (1) that counsel rendered defi cient performance and (2) that counsel’s deficiency resulted in actual prejudice. For a federal court to grant habeas relief for ineffective assistance, the “state court must have unr easo nably applied the [ W ashington ] standard.” S antellan v. Cockrell , 271 F.3d 190, 198 (5th Cir. 2001). A petitioner must show that “in light of all circumstances,” his representation “ f ell below an objective standard of reasonableness” or “prevailing professional norms.” W ash ington , 466 U.S. at 688-90; see Gent ry , 2003 U.S. LEXIS 7701, at *6-*7. Judicial scrutiny of the counsel’s performance must be “highly deferential” and cognizant of the “distorting ef fect of hindsight.” Washington , 466 U.S. at 689-90.

A. Flores’ first argument stems from the failure of h is attorney to object to the prosecution’s challenge to prospective juror Roundtree, who said that she strongly opp osed the death penalty i n all circumstances. The proper standard for determi n ing when a prospective juror may be excluded for cause because of his views on capital punishment is to decide whether “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in acco rdance with his instructions and his oath.’” W ainw right v. Witt , 469 U.S. 412 , 424 (1985) (quoting Adams v. Texas , 448 U.S. 12 , 45 (1980)). Roundtree informed the court and the parties that she did not believe in capital p unishment and did not wish to serve on a jury where the death penalty was an opti on. She repeatedly insisted that she would not answer th e special issues based on the evidence if those answers resulted in the death penalty and would not obey the court’s instructions regarding the law. These circumstances constituted a “substantial i mpairment” to her abilit y to answer t he punishment issues, and thus she was properly subject to a challenge for cause. Flores urges that Roundtree never said she would “consciously distort” her answer during the punishment phase, but such an express articulation of a substantial impairment of her abilit y to answ e r the punishment issues is unnecessary S S she was properly subject to a challenge for cause.

Flores’s lawyer reasonably could have concluded the same and realized that his objection would have been frivolous. A “[f]ailure to make a frivolous objection does not cause counsel’s perform ance to fall below an objective level of reasonab leness.” G reen v. Johnson , 160 F.3d 102 9 , 1037 (5th Cir. 1998)) B. Flores claims deficient counsel with respect to his attorney’s failure to investi gat e and introduce, as mitigation evidence, elemen ts of his background and mental disposition during the sentencing proceedings. As the district court observed, however, Flores presented no evidence to support the claim that his trial attorney’s investigation was unreasonable. The important question is whether counsel was inadequate in failing to introduce the suggested elements at trial. Flores argues that his attorney should h ave presented “evidence of the neurologic brain impairment of the Applicant, the history of physical a n d sexual abuse of the Applicant, the lack of a father figure for the Appl icant during his formative years, the Applicant’s severe problems in identity cri s is, the drug history of the Applicant and his siblings, and the intoxication of the Appli cant during the time of the offense.” Flores also produced a juror from his c ase, Ms. Zuazua, who says that had she heard the details about Flores’s traumatic childhood, she would not have voted f or the death penalty.

We must, however, judge FloresÂ’ counselÂ’s decisi o ns relative to the circumstances at the t ime. W ashington , 466 U.S. at 688-90. As the district court observed, FloresÂ’s suggested background information SS of a history of crisis and vi olence S S cuts both ways. His lack of s elf-control and his history of violence and drug abuse, especially, demonstrate violent and unstable propensities. At trial, FloresÂ’s att o rney took the approach of highlighting his good side, bringing witnesses to testify to his good character and arguing that the murder was an aberration. Introducing the evidence that Flores now suggests would have undermined that strategy.

In short, the district court reasonably concluded that FloresÂ’s attorney had valid strategic reasons for shift ing focus away from FloresÂ’s troubles. It accordingly was not deficient p e rformance to decline to introduce the subject evidence in mitigation.

The application for COA is DENIED.