Brown v. Dretke

Full title: MAURICEO MASHAWN BROWN, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Dec 3, 2004

Civil Action No. SA-01-CA-0241-XR (W.D. Tex. Dec. 3, 2004)

Opinion

Civil Action No. SA-01-CA-0241-XR.

December 3, 2004

ORDER

XAVIER RODRIGUEZ, District Judge

Petitioner Mauriceo Mashawn Brown seeks review of his May, 1997 conviction for capital murder and sentence of death through this habeas corpus action pursuant to 28 U.S.C. § 2254.

I. Factual and Procedural Background

A. The Offense

Petitioner, Kenneth Foster, DeWayne Dillard, and Julius Steen embarked on a string of armed robberies that culminated in the fatal shooting of Michael LaHood, Jr. during the early morning hours of August 15, 1996.¹ Shortly after the shooting, all four participants in the robberies were arrested and gave written statements to police identifying petitioner as the person who fatally shot LaHood.² LaHood died as a result of a single gunshot wound to the head.³ Police found the handgun from which the fatal shot was fired in the vehicle Foster was driving and in which petitioner, Dillard, and Steen were riding at the time of their arrests.⁴ While petitioner admitted in his statement to police that he was holding the gun when the fatal shot was fired, he denied that he had attempted to rob LaHood or that he had intentionally caused LaHood's death.⁵

1 Martha Donnelly testified at the guilt-innocence phase of petitioner's capital murder trial that she was robbed at gun point by two black males as she walked home from work late at night on August 14, 1996. Statement of Facts from petitioner's trial [hereinafter "S.F. Trial", Volume XVI, testimony of Martha Donnelly, at pp. 25-40. Two other women testified that they and a third person were robbed at gun point by two black males later the same evening at a location near where Martha Donnelly had been robbed. S.F. Trial, Volume XVI, testimony of Heather McIntosh, at pp. 100-10, 113, 118-19; and testimony of Sharon McCullough, at pp. 128-38. These women testified that their assailants matched the description of petitioner and his co-defendants.
Further, Julius Steen testified at the guilt-innocence phase of petitioner's trial that (1) Kenneth Foster picked up Steen, DeWayne Dillard, and petitioner on the evening of August 14, 1996, (2) the four men went cruising, smoking marijuana, and looking for persons to rob, (3) he rode shotgun and was primarily responsible for spotting potential victims, (4) he and petitioner robbed Martha Donnelly at gun point, (5) petitioner brandished the gun during the Donnelly robbery, (6) he struck Ms. Donnelly after she relinquished her purse, (7) shortly thereafter, he and petitioner robbed a group of three people while petitioner again brandished the gun, (8) all four men divided the proceeds from both robberies equally, and (9) petitioner wore a black "Wilson" tee shirt the night in question, which Martha Donnelly testified was worn by her assailant. S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 276-304, 384-86, 390-92, 395-97, 427, 429, 433.
Petitioner testified at the guilt-innocence phase of his trial that he and Julius Steen committed both of the foregoing armed robberies but insisted that Steen had held the gun during both robberies. S.F. Trial, Volume XVIII, testimony of Mauriceo Brown, at pp. 724-29. Petitioner admitted that he had given the police a written statement in which he admitted that he had held the gun during the robberies but, now, insisted that was incorrect. Id. at pp. 730, 746-49, 752-53. Petitioner's written statement to police regarding his participation in the two robberies immediately prior to the LaHood shooting was admitted into evidence and read in open court. S.F. Trial, Volume XVIII, testimony of Gabriel Trevino, at pp. 613-17; S.F. Trial, Volume XXI, at pp. 52-53.

2 Petitioner's written statement, in which he admitted that he was holding the gun that fired the fatal shot at LaHood, was admitted into evidence during the guilt-innocence phase of petitioner's trial, as State Exhibit No. 34 and read in open court. S.F. Trial, Volume XVIII, testimony of Ramiro Alvear, at pp. 589 592-97; S.F. Trial, Volume XXI, at pp. 49-51.
Kenneth Foster's written statement concerning the LaHood shooting was admitted into evidence as State Exhibit No. 38 and read in open court. S.F. Trial, Volume XVIII, testimony of Edward Giddings, at pp. 648-54; S.F. Trial, Volume XXI, at pp. 56-59.

3 S.F. Trial, Volume XVII, testimony of Russell D. Deidiker, at pp. 687-706.

4 The San Antonio Police Officer who stopped the vehicle testified that he observed a handgun on the floor under the front passenger seat. S.F. Trial, Volume XVII, testimony of James Phelan, at pp. 456-69. The San Antonio Police Detective who processed Foster's vehicle following the arrest testified that a .44 caliber pistol, containing two live rounds and one empty shell casing, was found inside the vehicle. S.F. Trial, Volume XVII, testimony of Salvatore Gomez, at pp. 235-36, 239-41, 247-49. Additionally, a Bexar County Crime Lab firearms examiner testified that he compared the deformed bullet obtained during the autopsy of Michael LaHood with a bullet he test-fired in the revolver and determined that both bullets had been fired from the same weapon. S.F. Trial, Volume XVIII, testimony of Edward William Love, Jr., at pp. 631-35.

5 In his written statement concerning the LaHood shooting, petitioner stated that he got out of Foster's vehicle and approached LaHood for the purpose of telling him that "everything was cool," LaHood made "some kind of move," and he became scared and pulled out his gun, which simply went off as he pointed it. S.F. Trial, Volume XXI, at p. 50; S.F. Trial, Volume XVIII, testimony of Ramiro Alvear, at pp. 592-97.
In his testimony at the guilt-innocence phase of his capital murder trial, petitioner testified that he got out of the vehicle to confront a woman who had argued with Foster and to get her phone number, but as he approached the car parked in the driveway, LaHood emerged from a vehicle and directed him to get off LaHood's property. Petitioner further testified that he thought he saw the handle of a handgun in LaHood's waistband and heard what he believed to be a .9 millimeter handgun being cocked, he pulled out his own gun and it just went off, and he never asked for LaHood's wallet and never intended to rob or shoot LaHood. S.F. Trial, Volume XVIII, testimony of Mauriceo Brown, at pp. 733-37.

On October 29, 1996, a Bexar County grand jury indicted petitioner in cause no. 96-CR-5255-A on a charge of capital murder.

B. The Guilt-Innocence Phase of Trial

At both phases of his trial, petitioner testified, in a manner consistent with his statement to police, that (1) he approached LaHood, not for the purpose of robbing him but, rather, to obtain the telephone number of the young woman who was with LaHood and (2) upon hearing what sounded to him like the click of an automatic weapon, he raised his gun and it discharged in LaHood's face. Foster's statement, which tended to corroborate petitioner's version of the events surrounding LaHood's shooting, was also admitted into evidence.⁶

6 Kenneth Foster's written statement concerning the LaHood shooting was admitted into evidence as State Exhibit No. 38 and read in open court. S.F. Trial, Volume XVIII, testimony of Edward Giddings, at pp. 648-54. In his statement, Foster stated that after he had a verbal altercation with a pretty female, she ran off and petitioner jumped out of their car and began a conversation with LaHood that he could not hear. Foster stated that he and the others in the car unsuccessfully attempted to get petitioner back in their car, he heard a gun shot and saw someone fall, but until that instant, did not know petitioner had a gun or where the gun came from, and petitioner then returned to the vehicle and would not respond when asked what happened. He further stated that they drove away but were stopped by the police not long thereafter. S.F. Trial, Volume XVIII, testimony of Edward Giddings, at pp. 651-53; Volume XXI, at pp. 56-58.

However, Julius Steen, who had entered into a plea bargain agreement that spared him from prosecution for both the murder of LaHood and his participation in another murder, testified at the guilt-innocence phase of petitioner's trial that Foster drove him, petitioner, and Dillard, around north San Antonio on the night in question for the purpose of committing robberies, and that he and petitioner committed two armed robberies before Foster began following a pair of vehicles to the LaHood residence. He stated that petitioner then got out of the vehicle after the young woman who was with LaHood and had flagged them down and cursed them out for following her vehicle, approached LaHood and demanded his wallet, and a moment later, he heard a shot and saw petitioner run back to the vehicle.⁷

7 S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 311-27. Steen admitted on cross-examination that he thought he saw LaHood "shoot them the finger" and, when he asked the others if they had seen the same thing, petitioner got out of the car, petitioner did not discuss robbery before he got out of the car, and he did not know whether petitioner intended to rob LaHood when petitioner first approached LaHood, but he did hear petitioner demand LaHood's wallet before he heard the shot. Id., at pp. 368, 375-76, 412-13, 445-47.

Additionally, prosecution witness Mary Patrick testified at the guilt-innocence phase of trial. According to her testimony, she and LaHood were involved romantically, on the night in question, shortly after they dropped off a friend of LaHood's, a vehicle began following closely behind her as she followed LaHood to his residence and continued to do so for many miles. When they arrived at the LaHood residence, she walked down to the street and confronted the occupants of the vehicle that had been following her, had a brief, unpleasant, conversation with the occupants of that vehicle, turned, and began walking away, but as she and LaHood walked toward the house, the vehicle took off and then abruptly stopped and backed up. She heard a door slam and saw a man get out of the vehicle and run toward them, and as she and LaHood began to walk back toward LaHood's vehicle, which was parked in the driveway, a man approached them wearing a scarf across his face, holding a gun in his hand, and demanding LaHood's keys. When LaHood told her to get in the house, the gunman demanded LaHood's wallet and money. LaHood responded "she's coming back with the keys." Patrick testified she looked back, tripped, and fell, and as she stood back up, she saw the gunman point the gun at LaHood's face and stand there for about two minutes. She then heard a loud shot and saw LaHood fall to the ground and she then ran to the door, banged on it, and screamed that LaHood had been shot. Not long after the shooting, police drove her to a gas station where the four occupants of the vehicle that had followed her were being held. She identified DeWayne Dillard as the person who shot LaHood but did so because she was very distraught at that time, and she testified that at trial she believed petitioner had been the shooter, based upon her recollection of his eyes.⁸ On cross-examination, Patrick admitted that she had quite a bit to drink that night, she had only seen the shooter's eyes and head above his scarf and below his baseball cap, and she had identified Dillard as the shooter on the night in question at the gas station.⁹

8 S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 499-515.

9 Id., at pp. 526-27, 536-40, 545.

On May 1, 1997, the jury returned its verdict at the guilt-innocence phase of trial, finding both petitioner and Foster guilty of capital murder.

C. The Punishment Phase of Trial

At the punishment phase of trial, the prosecution presented evidence showing petitioner's affiliation with a notoriously violent gang,¹⁰ his sale of a pipe-bomb to an undercover officer on a high school campus,¹¹ and his violent burglary of a vehicle only days before the fatal shooting of LaHood.¹² The prosecution also entered evidence of Foster's involvement in a near-fatal shooting of two individuals,¹³ involvement in a drug deal with an undercover officer,¹⁴ and arrest for possession of crack cocaine.¹⁵ Evidence of petitioner and Foster's mutual involvement in the armed car-jacking and robbery of a tourist in downtown San Antonio a day or two before the LaHood murder was also entered.¹⁶

10 A Bexar County Deputy Sheriff testified that, under a jail intake interview, petitioner claimed to be a member of the Hoover '74 Crips gang. S.F. Trial, Volume XIX, testimony of Mike Allen, at pp. 8-11. A Bexar County Juvenile Probation Officer testified that the Hoover — 74 Crips had a reputation for dealing drugs and weapons and were a very violent gang. S.F. Trial, Volume XIX, testimony of Michael Martinez, at pp. 22-23.

11 An undercover East Central Independent School District Police Officer testified that on March 28, 1994, petitioner showed him a home-made pipe bomb that petitioner claimed to have made and sold it to him for five dollars. S.F. Trial, Volume XIX, testimony of Ezekiel Flatten, at pp. 57-59 64.

12 A River Center Mall security guard testified that on April 11, 1996, he personally observed petitioner smash the front passenger window of a vehicle parked in a mall parking lot, he observed petitioner throw an object into a red Buick Regal before getting into the vehicle and driving off and two or three minutes later, the police pulled petitioner's vehicle over and he identified petitioner as the auto burglar. S.F. Trial, Volume XIX, testimony of Charles R. Cagle, at pp. 76-80.

13 Three eyewitnesses testified about an incident on October 17, 1994 during which Kenneth Foster, without provocation, fired several shots into their vehicle, striking two of the occupants of their vehicle and seriously wounding one of them. S.F. Trial, Volume XIX, testimony of Arturo Santana, at pp. 29-39; testimony of Christina Santana, at pp. 42-48; and testimony of Juan Santana, at pp. 51-55. Christine Santana, the only one of the occupants of the victims' vehicle who was not wounded, identified Foster as the person who had shot at them from a moving vehicle. Id., testimony of Christine Santana, at p. 48.

14 An undercover officer working with the Alamo Area Narcotics Task Force testified that he purchased from Foster what was represented to be a pound of marijuana on May 4, 1995. S.F. Trial, Volume XIX, testimony of Nathaniel Simmons, at pp. 83-88.

15 A San Antonio Police Officer testified that he arrested Foster on May 8, 1994 for possession of crack cocaine and marijuana. S.F. Trial, Volume XIX, testimony of Gilbert Rocha, at pp. 96-102.

16 Julius Steen testified that, a day or two before the LaHood shooting, petitioner, Steen, Dillard, and Foster were all involved in an armed robbery and car-jacking in which petitioner and Dillard robbed the owner of a Mercedes of his vehicle and cell phone at gun point in the parking lot of a downtown San Antonio hotel. S.F. Trial, Volume XIX, testimony of Julius Charles Steen, at pp. 122-25. The victim of that armed robbery also testified and corroborated Steen's account, as well as adding that when police recovered his vehicle, the cell phone that had been in the glove compartment was missing. S.F. Trial, Volume XIX, testimony of Arsenio Reyes, Jr., at pp. 143-49.
A San Antonio Police Officer testified that he conducted a search of the vehicle in which Foster, petitioner, Dillard, and Steen were riding at the time of their arrest the night of the LaHood shooting testified that he found two cell phones in the trunk of that vehicle. S.F. Trial, Volume XIX, testimony of Gary McMaster, at pp. 161-69.

Petitioner presented expert testimony from a psychiatrist who had examined petitioner and who testified that petitioner requires treatment for depression, petitioner's degree of narcissism is within the normal range, the best indicator of future violence is a person's past behavior, and the tendency toward aggressiveness tends to reduce as people age.¹⁷ Petitioner also presented testimony from his mother that he had been kidnaped, isolated, mal-nourished, and abused by his father from age two to six, displayed signs of hyperactivity throughout his years in school, began having trouble with the law at age fourteen but had never been a violent person, and had become more religious since his arrest for capital murder.¹⁸ Other witnesses, including petitioner's grandmother, uncle, neighbor, pastor, and the mother of petitioner's child, testified that petitioner had never been violent, had been active in his church youth group, and had newly dedicated his life to God.¹⁹

17 S.F. Trial, Volume XIX, testimony of Dr. John C. Sparks, at pp. 181-209.

18 S.F. Trial, Volume XIX, testimony of Cynthia Lackey Caldwell, at pp. 210-25.

19 S.F. Trial, Volume XIX, testimony of Larry Lawrence Page (petitioner's uncle), at pp. 226-30; testimony of Olivia Biglow (petitioner's neighbor), at pp. 238-41; and testimony of Brent Bryant (pastor of petitioner's church), at pp. 231-35.
S.F. Trial, Volume XX, testimony of Irma Harvey (petitioner's grandmother), at pp. 272-77; and testimony of Octavia Wagner (mother of petitioner's infant son), at pp. 278-85.

In addition, petitioner testified at the punishment phase of his trial that he was not a violent person and the shooting of LaHood had been accidental, he felt bad for the LaHood family, and had considered taking his own life but had found peace through reading the Bible and prayer. He further testified that he never demanded anything from LaHood, had never made or sold a pipe bomb, had no criminal responsibility for the firearm possession charge to which he had pleaded guilty, nor for the burglary of a vehicle charge against him, and, while he associated with members of the '74 Hoover Crips, he was never actually a member of that gang.²⁰

20 S.F. Trial, Volume XIX, testimony of Mauriceo Brown, at pp. 242-66.

On May 6, 1997, the jury returned its verdict. The jury answered that (1) there was a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character, background, and personal moral culpability, there was insufficient mitigating circumstances to warrant a sentence of life imprisonment.²¹ The state trial court imposed the sentence of death.²²

21 S.F. Trial, Volume XX, at pp. 439-46; Trial Transcript, Volume II, at pp. 175-78.

22 Id.

D. Post-Conviction Attacks

Petitioner appealed to the Texas Court of Criminal Appeals. As points of error, petitioner argued that there was insufficient evidence to support his conviction for capital murder and the Texas death penalty violates the Eighth Amendment. Petitioner also argued that his trial counsel rendered ineffective assistance by eliciting damaging testimony regarding petitioner's involvement in other crimes, opening the door to the admission of evidence of extraneous offenses at the guilt-innocence phase of trial during the cross-examination of Julius Steen, failing to request a severance, failing to request a limiting instruction regarding evidence of Foster's extraneous offenses, calling petitioner to testify, thereby subjecting petitioner to cross-examination, and presenting evidence of petitioner's deferred adjudication for possession of an explosive weapon. In an unpublished opinion issued February 17, 1999, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence.²³

23 Brown v. State, Cause No. 72,852 (Tex.Crim.App. February 17, 1999). The Texas Court of Criminal Appeals concluded that (1) petitioner's attack on the sufficiency of the evidence supporting his conviction was little more than a facially inadequate attack on the credibility of various prosecution witnesses; (2) petitioner had failed to factually develop most of his ineffective assistance claims; (3) reasonable tactical reasons could have existed for the actions of petitioner's trial counsel which petitioner now challenged and petitioner had failed to overcome the presumption of reasonableness that accompanies most strategic decisions made by trial counsel; and (4) petitioner's constitutional challenges to the Texas death penalty had been rejected by both state and federal courts.

On December 18, 1998, petitioner filed an application for state habeas corpus relief.²⁴

24 Petitioner put forward numerous claims for relief, including:
(1) his trial counsel rendered ineffective assistance by eliciting damaging testimony regarding extraneous offenses during Steen's cross-examination; opening the door to damaging testimony of other extraneous offenses during Steen's cross-examination; failing to request a hearing regarding the admissibility of extraneous offenses; failing to request a severance; failing to request a limiting instruction regarding evidence of Foster's extraneous offenses; calling petitioner to testify, and thereby subjecting petitioner to cross-examination, at the guilt-innocence phase of trial; opening the door to cross-examination regarding petitioner's deferred adjudication for possession of an explosive device; being absent for significant portions of voir dire and the direct examination of prosecution witnesses; failing to interview prosecution witnesses prior to trial; failing to record bench conferences to preserve error for appellate review; and failing to exercise a peremptory challenge to excuse venire member Pedraza; (2) petitioner was constructively denied effective assistance by virtue of the foregoing errors by his trial counsel; (3) petitioner was denied effective assistance under the Texas Constitution; (4) the trial court erred when it denied petitioner's motion to sever; (5) the trial court erred when it limited the cross-examination of prosecution witness Mary Patrick; (6) the trial court's failure to sever petitioner at the punishment phase of trial violated the Eighth Amendment; (7) the trial court violated the Fourteenth and Eighth Amendments when it instructed the jury to disregard the impact of Texas parole law when it answered the punishment phase special issues; (8) the trial court violated various provisions of the Texas Constitution when it instructed the jury to disregard Texas parole law at the punishment phase of trial; (9) various terms employed in the punishment phase special issues are unconstitutionally vague; (10) Texas does not provide meaningful appellate review of the jury's answers to the capital sentencing special issues; (11) the Texas capital sentencing scheme does not assign the burden of proof regarding the mitigation issue; (12) the Texas capital sentencing scheme violates the Eighth Amendment because it misleads the jury regarding the effect of a hung jury at the punishment phase of trial; (13) the trial court erred in admitting evidence of unadjudicated extraneous offenses at the punishment phase of trial; (14) the Texas capital sentencing scheme violates the Eighth Amendment because it asks open-ended questions at the punishment phase of trial; (15) the Texas capital sentencing mitigation issue too narrowly defines the term "mitigating;" (16) capital punishment in Texas is cruel and unusual in violation of the Eighth Amendment; (17) capital punishment violates the Texas Constitution; and (18) petitioner is actually innocent of the murder of LaHood. State Habeas Transcript, at pp. 1-92.

The state trial court held an evidentiary hearing that extended over a period of several months and during which eighteen witnesses gave testimony. On November 10, 1999, after the state habeas court had heard a full day of testimony from petitioner's former lead trial counsel, attorney William T. Reece, the state district judge then presiding over petitioner's state habeas corpus hearing, former state district judge Sam Katz, advised all parties on the record that, many months before, he had taken out a loan to pay off campaign debts and that one of the attorneys who signed as a guarantor of the note was Michael LaHood, Sr., the father of petitioner's victim.²⁵ Neither party voiced any objection to Judge Katz continuing to preside over petitioner's state habeas corpus hearing.²⁶ Later that same day, however, after the parties took further testimony from Reece, petitioner filed a formal, written, motion to recuse Judge Katz, which was referred to Judge Peter Michael Curry for an evidentiary hearing.²⁷ At that hearing, also held November 10, 1999, attorney Michael LaHood, Sr., testified that (1) he and another attorney had agreed to sign as guarantors of a note evidencing a five thousand dollar loan Sam Katz took out shortly after his election but prior to taking office, (2) he had done the same for other attorneys in the past, and (3) he had never discussed petitioner's case with Judge Katz and had no financial interest in the outcome of petitioner's state habeas corpus proceeding.²⁸ At the conclusion of the hearing, Judge Curry denied petitioner's motion to recuse Judge Katz.²⁹

25 S.F. State Habeas Hearing, Volume 4, at pp. 3-4.

26 Id.

27 Supplemental State Habeas Transcript, at pp. 59-63.

28 S.F. State Habeas Hearing, Volume 6 (proceedings November 10, 1999), testimony of Michael LaHood, Sr., at pp. 3-11.

29 Id. at p. 18.

For several months thereafter, the parties presented further testimony and documentary evidence. On May 12, 2000, Judge Katz held a hearing in open court to interrogate petitioner's state habeas co-counsel regarding negative comments about Judge Katz attributed to said counsel by the local media.³⁰ At the beginning of that hearing, Judge Katz berated petitioner's state habeas co-counsel for allegedly accusing Judge Katz of bias and financial improprieties in connection with petitioner's state habeas proceeding. Petitioner's co-counsel explained that, contrary to accounts of her public comments that had appeared in the local media, all her statements about Judge Katz had been limited to a factually accurate recitation of LaHood, Sr.'s testimony at the recusal hearing held before Judge Curry months before, neither she nor her co-counsel had any objections to Judge Katz presiding over petitioner's state habeas corpus proceeding, and they had filed their initial motion to recuse Judge Katz because their client demanded they do so. At that point, counsel for the State presented Judge Katz with a copy of the verbatim transcription of the testimony at the hearing before Judge Curry.³¹ After further discussion, Judge Katz invited petitioner's counsel to file a recusal motion based on the discussions that had occurred during the hearing that date.³²

30 S.F. State Habeas Hearing, Volume 14 (proceedings May 12, 2000), at pp. 3-15.

31 Id. at pp. 3-8.

32 Id. at pp. 10-15.

On August 9, 2000, petitioner filed a motion to recuse Judge Katz for bias, based upon his conduct at the hearing held May 12, 2000.³³ That same day, a hearing was held on the motion before Judge Pat Priest. During the course of that hearing, Judge Priest received a telephone call from Judge Katz in which Judge Katz advised all concerned that he had signed an Order recusing himself from further participation in petitioner's state habeas corpus proceeding.³⁴ Thereafter, Judge James Barlow presided over petitioner's state habeas corpus proceeding.

33 State Habeas Transcript, at pp. 187-90.

34 S.F. State Habeas Hearing, Volume 15, at pp. 4-14.

At a hearing held August 18, 2000, Judge Barlow and counsel of record for both parties discussed the need to re-present all the testimony that had previously been presented to Judge Katz.³⁵ On November 20, 2000, petitioner presented testimony from an additional witness.³⁶ At the conclusion of that hearing, Judge Barlow advised the parties that he would review the record from petitioner's trial and the transcripts of previous testimony given before Judge Katz but that he did not believe it was necessary for him to have personally witnessed the testimony presented during petitioner's state habeas hearing before he prepared his findings of fact and conclusions of law addressing petitioner's state habeas corpus claims.³⁷

35 S.F. State Habeas Hearing, Volume 16, at pp. 3-36. It is unclear whether anything was resolved at that hearing.

36 S.F. State Habeas Hearing, Volume 17, testimony of Anthony Allen (former Bexar County Adult Detention Center resident), at pp. 7-13.

37 Id. at pp. 24-31.

On January 5, 2001, Judge Barlow issued an Order containing his findings of fact, conclusions of law, and recommendation that petitioner's state habeas corpus application be, in all respects, denied.³⁸ In an unpublished Order issued March 7, 2001, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied petitioner's state habeas corpus application.³⁹

38 State Habeas Transcript, at pp. 235-46.

39 Ex parte Mauriceo Mashawn Brown, App. No. 48,437-01 (Tex.Crim.App. March 7, 2001).

E. Federal Procedural History

On February 5, 2002, petitioner filed his federal habeas corpus petition. On June 25, 2002, respondent filed his answer and motion for summary judgment in which he argued that (1) petitioner had failed to present many of his claims for relief herein to the state courts, failed to exhaust available state remedies with regard to those claims, and, thereby, procedurally defaulted on same, (2) petitioner failed to present evidence to the state habeas court sufficient to overcome the presumption of reasonableness that must be accorded petitioner's trial counsel's strategic decisions, (3) many of petitioner's claims herein asserted nothing more than harmless error, and (4) the remainder of petitioner's claims herein were foreclosed by well-settled Supreme court case law. On August 16, 2002, petitioner filed his response to the motion for summary judgment and argued therein that he was denied a full and fair state habeas corpus hearing and his evidence of actual innocence excused any procedural defaults.

II. Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court may not grant petitioner federal habeas corpus relief in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either (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); Wiggins v. Smith, 539 U.S. 510, 520 (2003).

Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003).⁴⁰ Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Wiggins, 539 U.S. at 520. A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable and an "unreasonable" application is different from a merely incorrect one. Id. at 520.⁴¹ Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Williams v. Taylor, 529 U.S. 362, 412 (2000). The AEDPA significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous. 28 U.S.C. § 2254(e)(1); Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002).

40 "[T]he state court need not even be aware of [Supreme Court] precedents; 'so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

41 See also Price v. Vincent, 538 U.S. at 641 ("[I]t is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner.").

Petitioner argues, however, that the deference to state court factual findings mandated in a federal habeas corpus proceeding by the AEDPA does not apply in his case because (1) the state habeas trial judge who presided over the majority of the evidentiary hearing held in his state habeas corpus proceeding had a financial incentive in favor of the father of petitioner's murder victim which biased the judge and (2) the other judge who presided over neither petitioner's trial nor the vast majority of the evidentiary hearing held in petitioner's state habeas corpus proceeding issued the findings of fact and conclusions of law which the Texas Court of Criminal Appeals adopted when denying petitioner's state habeas corpus application.⁴²

42 See Petition, at pp. 19-30; Petitioner's Reply to Respondent's Answer, filed August 16, 2002, docket entry no. 30 (henceforth "Reply"), at pp. 7-19.

Petitioner's arguments are largely non sequitur. The state habeas trial court, per Judge Barlow, issued an Order on January 5, 2001 which contains virtually no explicit factual findings to which this Court must give deference pursuant to § 2254(e).⁴³ Upon examination, it appears Judge Barlow's Order contains primarily conclusions of law and ultimate conclusions on such mixed questions of law and fact as whether petitioner's trial counsel rendered ineffective assistance.⁴⁴

43 One noteworthy exception is Judge Barlow's express determination that petitioner's testimony during the state habeas corpus proceeding lacked credibility:

Hindsight is always better than foresight. Be that as it may, it seems clear under our law that the burden of proof to show the defendant was represented by ineffective counsel is on the Defense.

In this case the burden is simply not met. In this matter, the defendant having previously testified and given statements about the occurrence, relating at least three separate versions of what happened lacks credibility, to say the least.

. . .

This trial court finds as a matter of fact that the defendant Brown, has not met his burden of proof on any issue involved.

State Habeas Transcript, at p. 241 (emphasis added).

44 See, e.g., Id.

Furthermore, there is no legal support for petitioner's contention that this Court is free to disregard the state habeas court's implicit factual findings simply because there were procedural deficiencies or irregularities in petitioner's state habeas corpus proceeding. On the contrary, the Fifth Circuit has consistently held that, regardless of any procedural inadequacies that may have denied a petitioner a "full and fair" state habeas hearing, absent clear and convincing evidence to the contrary, the AEDPA requires a federal habeas court to defer to a state habeas court's factual findings, whether express or implied. See, e.g., Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004). The Fifth Circuit has also rejected the contention, implicit in petitioner's pleadings, that the perceived procedural irregularities in his state habeas corpus proceeding which petitioner has identified render this Court free to conduct a de novo review of all of petitioner's claim. See Valdez v. Cockrell, 274 F.3d at 950-51 (holding that a full and fair hearing is not a precondition to § 2254(d)'s deferential standard of review). Accordingly, this Court must apply the standard of review mandated by the AEDPA with regard to both the state habeas court's conclusions of law and factual findings.

III. Analysis

Petitioner puts forward fourteen⁴⁵ claims for relief. The Court finds that Petitioner cannot be granted relief on any of his claims.

45 Petitioner's federal habeas corpus petition sets forth 19 claims for relief, which can be grouped into the 14 categories below. See Petitioner's Petition for Writ of Habeas Corpus, filed Feb. 5, 2002, docket entry no. 20 [hereinafter, "Petition"].

A. Conduct of State Habeas Judges

Petitioner argues that (1) his right to due process of law was violated when Judge Katz initially refused to recuse himself in petitioner's state habeas corpus proceeding despite having a financial incentive in favor of the father of petitioner's murder victim and (2) this Court is not required to defer to Judge Barlow's factual findings because that state judicial officer presided over neither petitioner's trial nor the vast majority of the evidentiary hearing held in petitioner's state habeas corpus proceeding.⁴⁶

46 See Petition, at pp. 19-30; Reply, at pp. 7-19.

As an initial matter, before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To provide the State with this necessary "opportunity," the prisoner must "fairly present" his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. O'Sullivan, 526 U.S. at 844-45.⁴⁷ The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220 (2002).

47 A claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief; exhaustion is not satisfied by presenting the state courts only with the facts necessary to state a claim for relief. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003). The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting federal collateral relief under § 2254. Wilder v. Cockrell, 284 F.3d 255, 259 (5th Cir. 2001). A federal court is free to raise the lack of exhaustion sua sponte. Granberry v. Greer, 481 U.S. 129, 133-36 (1987). Section 2254(b)(2) also empowers a federal habeas court to deny an exhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002).

The presentation of claims for the first time on discretionary review to the state's highest court does not constitute "fair presentation" for exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351 (1989); Satterwhite v. Lynaugh, 886 F.2d 90, 92 (5th Cir. 1989). Full exhaustion of all claims presented is required before federal habeas corpus relief is available. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7 (1982); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003) ("The federal claim must be the 'substantial equivalent' of the claim brought before the State court."). Likewise, to have fairly presented his federal claim, the petitioner must have reasonably alerted the state courts to the federal nature of his claim. Wilder, 274 F.3d at 260.

Petitioner claims relief based on Judge Katz's initial decision not to recuse himself, and on Judge Barlow's decision not to personally rehear evidence already presented to Judge Katz. However, petitioner presented neither of these claims to the state courts as either points of error in his direct appeal or as grounds for relief in his state habeas corpus application. Petitioner also filed no pleading, motion, or other document in his state habeas corpus proceeding alerting the state courts that he wished to assert either of these arguments as claims for relief.⁴⁸ Thus, petitioner failed to "fairly present" either of these claims to the state courts. Therefore, this Court may not grant federal habeas corpus relief based on either of these claims. 28 U.S.C. § 2254(b)(1)(A).

48 Petitioner's state habeas corpus application contained no mention of any complaint regarding the procedures under which petitioner's state habeas corpus proceeding was conducted. See State Habeas Transcript, at pp. 1-92. Petitioner's proposed findings of fact and conclusions of law likewise contained no complaints about the manner in which petitioner's state habeas corpus proceeding had been conducted, the identity of the presiding judicial officer, or any other aspect of his state habeas corpus proceeding. See State Habeas Transcript, at pp. 196-234.

Furthermore, petitioner's claims do not state recognizable bases for federal habeas corpus relief. Infirmities in state habeas corpus proceedings do not constitute grounds for federal habeas relief. See, e.g., Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001). This is because an attack on a state habeas corpus proceeding is a challenge collateral to the petitioner's conviction or sentence and not a challenge to its validity. See Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (holding that an attack upon a state habeas proceeding is an attack on a proceeding collateral to the petitioner's detention and not the detention itself). Federal habeas corpus review furnishes an avenue for challenging the validity of a prisoner's conviction or sentence as a violation of the federal Constitution. Nothing in the United States Constitution requires that states furnish state prisoners with state habeas corpus review of state criminal convictions. Accordingly, any deficiencies in state habeas corpus procedures do not invoke federal constitutional protections.⁴⁹

49 For instance, both the Supreme Court and Fifth Circuit have held that because there is no constitutional right to the assistance of counsel in connection with a collateral attack upon an otherwise final conviction, error by counsel in an earlier state or federal habeas proceeding cannot give rise to a federal habeas claim or constitute "cause" for purposes of avoiding a procedural default. See Coleman v. Thompson, 501 U.S. 722, 755 (1991); Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001).

B. Texas Capital Sentencing Structure

Petitioner argues that the Texas capital sentencing scheme violates the Eighth Amendment because the Texas capital sentencing special issues (1) permit capital sentencing juries open-ended discretion to impose or withhold a death sentence (through their answers to the "mitigation" issue) and (2) employ terms such as "probability," "criminal acts of violence," and "continuing threat to society," that are unconstitutionally vague.⁵⁰ The Constitution requires that a valid capital sentencing scheme accomplish two separate, but related, purposes: determining eligibility and selection. Tuilaepa v. California, 512 U.S. 967 (1994). In Tuilaepa, the Supreme Court emphasized that, while both inquiries necessarily involve resolution of issues that bear a factual nexus to the crime, the selection process must also focus on the character and record of the defendant. Id. at 971-73. As to the framework to be applied, the Court in Tuilaepa stated,

50 Petition, at pp. 114-20 135-37. Petitioner fairly presented these same claims to the Texas Court of Criminal Appeals as his eleventh and seventeenth claims for state habeas relief. State Habeas Transcript, at pp. 58-60 73-74. The state habeas trial court recommended denial of these claims based on the Texas Court of Criminal Appeals' previous rejection of the same claims in "various opinions" issued by that Court. State Habeas Transcript, at p. 244.
At the time of petitioner's trial, section 2 of article 37.071 of the Texas Code of Criminal Procedure directed a Texas capital sentencing jury to answer the following questions at the punishment phase of a capital murder trial: (1) "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"; (2) (in cases in which the jury charge at the guilt-innocence stage permitted the jury to convict the defendant as a party) "whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken"; and (3) "whether, taking 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, there is a sufficient mitigating circumstance or circumstances to warrant that sentence of life imprisonment rather than a death sentence be imposed." TEX. CRIM. PROC CODE. ANN. art. 37-071, § 2(b) (e) (Vernon Supp. 1997). Consistent with this statute, petitioner's jury was asked the first and third of these special issue at the punishment phase of trial. Trial Transcript, at pp. 170-78. The final special issue listed above is commonly referred to as the "mitigation" or Penry special issue . See, Penry v. Lynaugh ( Penry I), 492 U.S. 302 (1989) and Penry v. Johnson ( Penry II), 532 U.S. 782 (2001), which mandated that Texas capital sentencing juries be permitted to give mitigating effect at sentencing to evidence of a convicted capital murder defendant's diminished mental capacity.

To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. To render a defendant eligible for the death penalty in a homicide case, . . . the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase. The aggravated circumstance may be contained in the definition of the crime or in a separate sentencing factor (or both). . . . [T]he aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. Second, the aggravating circumstance may not be unconstitutionally vague.

[There is] a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. That requirement is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime.

Id. at 971-72 (internal citations and quotations omitted).

In Buchanan v. Angelone, 522 U.S. 269 (1998), the Supreme Court reaffirmed the vitality of the two-stage Tuilaepa analysis and rejected an argument that the Constitution mandates certain jury instructions at the selection stage of a capital sentencing proceeding. Id. at 275-79. The Supreme Court analyzed the first part of the Tuilaepa analysis, i.e., the eligibility decision, in Loving v. United States, stating,

The Eighth Amendment requires, among other things, that a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer "find the existence of the aggravating circumstance in addition is no part of the constitutionally required narrowing process.

517 U.S. 748, 754 (1996) (internal citations and quotations omitted). Under the Texas capital sentencing scheme, this constitutionally-mandated narrowing function is performed at the guilt-innocence phase of trial. See Johnson v. Texas, 509 U.S. 350, 362 (1993) (noting that the Texas capital sentencing statute adopts five different classifications of murder for the purpose of narrowing the group of offenders subject to capital punishment). Thus, further narrowing is not required at the punishment phase of a Texas capital murder trial. See Jurek v. Texas, 428 U.S. 262, 268-75 (1976). Petitioner's attempts to rely upon Supreme Court opinions addressing the duties of state courts in weighing states,⁵¹ such as Oklahoma and Mississippi, are of little vitality when addressing the very different Texas capital sentencing scheme. In point of fact, the Texas capital sentencing special issues do not perform the "narrowing function" required of the "eligibility decision" described in Tuilaepa. See Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996) (rejecting the same arguments made by petitioner and concluding that the Texas capital sentencing special issues do not constitute "aggravating factors" for purposes of the Eighth Amendment). Instead, that function is performed at the guilt-innocence phase of trial by virtue of the Texas capital murder statute's delineation of the types of murder that qualify as "capital murder" under Texas law.

51 A "weighing" jurisdiction requires a sentencing jury to specifically find that one or more statutory aggravating factors are present and then to weigh those factors against all of the mitigating evidence to determine whether the balance favors the imposition of the death penalty. See Williams v. Cain, 125 F.3d 269, 281-84 (5th Cir. 1997).

Petitioner's arguments are premised on the erroneous notion that Texas is a "weighing" jurisdiction for purposes of the imposition of the death penalty. For that reason, petitioner's reliance on Supreme Court opinions addressing vague "aggravating factors" in weighing jurisdictions is misplaced.

As to petitioner's argument that the Texas capital sentencing special issues are unconstitutionally vague, there is no clearly established Supreme Court case law declaring unconstitutionally vague any of those terms. On the contrary, on several occasions the Supreme Court has at least implicitly acknowledged the propriety, and common sense meaning, of the terms employed in the Texas capital sentencing scheme.⁵² Furthermore, the Fifth Circuit has repeatedly rejected precisely the same arguments contained in petitioner's argument.⁵³

52 See Johnson v. Texas, 509 U.S. 350, 362-66 (1993) (recognizing the broad scope of mitigating evidence which can be properly considered under the common sense meaning of the terms employed in the Texas capital sentencing special issues); Pulley v. Harris, 465 U.S. 37, 50 n. 10 (1984) (recognizing that the terms employed in the Texas capital sentencing special issues are not impermissibly vague and have a common sense core meaning); Jurek v. Texas, 428 U.S. 262, 294-95 (1976) (recognizing that the terms employed in the Texas capital sentencing special issues have a broad common sense meaning).

53 See, e.g., Hughes v. Johnson, 191 F.3d at 615 (holding that the term "probability," used in the Texas capital sentencing special issues, does not requires a definition); West v. Johnson, 92 F.3d 1385, 1406 (5th Cir. 1996) (rejecting the argument that the Texas capital sentencing special issues work as aggravating factors and, therefore, require detailed definitions of the terms employed therein).

Insofar as petitioner complains about the open-ended nature of the inquiry posed by the Texas capital sentencing scheme's "mitigation" special issue, those complaints are foreclosed by the Supreme Court's holding in Tuilaepa. The Court held in Tuilaepa that (1) once the jury finds the defendant eligible for the death penalty, the jury is free to consider a myriad of factors to determine whether death is the appropriate punishment, and (2) states may direct juries to engage in such consideration through the use of broadly-worded, open-ended, questions of the same type Texas employs in its "mitigation" capital sentencing special issue. Tuilaep, 512 U.S. at 978-79. Thus, there is no clearly established federal law prohibiting the type of open-ended inquiry Texas permits capital sentencing juries. In fact, the Supreme Court's holding in Tuilaepa expressly authorizes such an inquiry.

The Court therefore rejects petitioner's habeas claims as to the constitutionality of the Texas capital sentencing structure.

C. Lack of Meaningful Appellate Review

Petitioner argues that the open-ended nature of the Texas capital sentencing scheme's "mitigation" special issue effectively forecloses "meaningful" state appellate review of the jury's response to that special issue.⁵⁴ There is no clearly established federal law mandating state appellate review of the sufficiency of the evidence supporting a sentencing jury's refusal to exercise its discretion to grant mercy to a convicted capital murderer otherwise eligible to receive the death penalty. On the contrary, the Supreme Court's opinion in Tuilaepa acknowledges that such judicial second-guessing of jury dispensations of mercy has no place in current Eighth Amendment jurisprudence.

54 Petition, at pp. 121-25. Petitioner "fairly presented" this same claim to the Texas Court of Criminal Appeals as his twelfth ground for state habeas corpus relief. State Habeas Transcript, at pp. 61-64. The state habeas trial court recommended summary denial of this claim. State Habeas Transcript, at p. 244.

Respondent correctly points out that petitioner raised no challenge on direct appeal to the sufficiency of the evidence supporting the jury's negative answer to the "mitigation" special issue answered by the jury at the punishment phase of petitioner's capital murder trial. Therefore, petitioner lacks standing to complain about a form of state appellate review he never requested.⁵⁵ The Supreme Court's holding in Tuilaepa forecloses petitioner's complaint about what he perceives to be the lack of "meaningful" state appellate review of a Texas capital sentencing jury's answer to a Penry mitigation issue. Additionally, the Fifth Circuit has rejected claims similar to petitioner's complaint regarding the lack of "meaningful" state appellate review of a jury's answers to the Texas capital sentencing special issues. See, e.g., Woods v. Cockrell, 307 F.3d 353, 359-60 (5th Cir. 2002) (holding that the refusal of the Texas Court of Criminal Appeals to review the sufficiency of the evidence supporting the negative answers to the Texas capital sentencing scheme's mitigation special issue did not violate due process principles). Therefore, the Court rejects petitioner's claim as to a lack of meaningful appellate review, as the rejection on the merits of petitioner's complaint by the Texas Court of Criminal Appeals was neither contrary to, nor involved an unreasonable application of, clearly established federal law, nor was unreasonable.

55 In his second point of error in appellant's brief on direct appeal, petitioner did challenge the sufficiency of the evidence supporting the jury's verdict of guilty on the charge of capital murder. See Appellant's Brief, at pp. 25-26. However, at no point in his appellate brief did petitioner argue the evidence was insufficient to support the jury's negative answer to the second capital sentencing special issue, i.e., the "mitigation" issue. Petitioner never requested that the Texas Court of Criminal Appeals evaluate the sufficiency of the evidence supporting the jury's negative answer to the second capital sentencing special issue, i.e., the Penry issue. Therefore, petitioner has no basis to complain that such review has been denied to other persons challenging capital murder convictions.

Additionally, adoption of the new rule advocated by petitioner would contravene the non-retroactivity doctrine the Supreme Court announced in Teague v. Lane, 489 U.S. 288 (1989). Federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90 (1994). A "new rule" is one which was not dictated by precedent existing at the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156 (1997) (holding that a "new rule" either "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final"). Under this doctrine, unless reasonable jurists hearing the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. Caspari, 510 U.S. at 390. This non-retroactivity doctrine applies equally to a novel application of an old rule. Stringer v. Black, 503 U.S. 222, 227-29 (1992). The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) "watershed" rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell, 521 U.S. at 157. The new rule advocated by petitioner in his fourteenth claim for relief herein falls within neither of the two recognized exceptions to the Teague doctrine. Petitioner's claim is therefore additionally foreclosed by the Teague non-retroactivity doctrine.

D. Narrow Definition of "Mitigating Evidence"

Petitioner argues that the Texas capital sentencing statute's definition of "mitigating evidence" is unconstitutionally narrow.⁵⁶ The Supreme Court established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial in its opinion in Boyde v. California: "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." 494 U.S. 370, 380 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See, e.g., Weeks v. Angelone 528 U.S. 225, 226 (2000). The fact the jury instructions might have been erroneous as a matter of state law does not, standing alone, furnish a basis for federal habeas corpus relief. Gilmore v. Taylore, 508 U.S. 333, 342 (1993).

56 Petition, at pp. 138-39. Petitioner "fairly presented" this same claim to the Texas Court of Criminal Appeals as his eighteenth claim for state habeas corpus relief. State Habeas Transcript, at pp. 75-76. The state habeas trial court recommended summary denial of this claim. State Habeas Transcript, at p. 244.
At the time of petitioner's trial, the Texas capital sentencing statute directed a trial court to instruct the jury at the punishment phase of a capital murder trial to "consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness." TEXAS CRIM. PROC. CODE ANN., art 37.071, § 2(f)(4) (Vernon Supp. 1997). The current version of the Texas capital sentencing statute includes the same definition of "mitigating evidence." TEXAS CRIM. PROC. CODE ANN., art. 37.071, § 2(f)(4) (Vernon Supp. 2004).

There is no clearly established federal law mandating a definition of "mitigating evidence" broader than the one set forth in the Texas statute. Petitioner does not identify any mitigating evidence he presented during his trial that he claims his jury was precluded from considering because of the allegedly narrow definition of "mitigating evidence" included in the Texas capital sentencing statute and incorporated in petitioner's punishment phase jury instructions. Having independently reviewed the entire record from petitioner's capital murder trial, this Court has been unable to identify any potentially mitigating evidence that a rational juror could have construed as having been precluded from consideration at the punishment phase of petitioner's trial because of the definition of "mitigating evidence" included in petitioner's punishment phase jury instructions. Thus, the petitioner's punishment phase jury instructions, including the definition of "mitigating evidence" included therein, did not violate the standard set forth in Boyde.

Insofar as petitioner's claim constitutes a facial attack on the constitutionality of the Texas capital sentencing statute's definition of "mitigating evidence," that claim lacks any arguable merit. The Texas statutory definition is fully consistent with the evolving notion of "mitigating evidence" contained in Supreme Court and Fifth Circuit precedent. See, e.g., Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001) (rejecting a challenge to the same Texas statutory definition of "mitigating evidence"); Cordova v. Johnson, 993 F. Supp. 473, 489-98 (W.D. Tex. 1998) (discussing the Supreme Court's analysis of mitigating evidence). Moreover, the Supreme Court has expressly held that states are not limited to submitting narrow special issues to the jury when the sentencing jury reaches the selection phase of a capital sentencing proceeding. Tuilaepa, 512 U.S. at 978. Finally, the Supreme Court has made it clear that the states are permitted to guide the discretion exercised by capital sentencing juries so long as the jury is not precluded from giving mitigating effect to evidence that does lessen the defendant's moral culpability or blameworthiness for his crime. Johnson v. Texas, 509 U.S. at 362. The Texas statutory definition of "mitigating evidence" is a proper method of guiding the discretion exercised by a capital sentencing jury.

Therefore, the Court rejects petitioner's claim as to the definition of "mitigating evidence" under the Texas statute.⁵⁷

57 Additionally, respondent correctly points out that adoption of the new rule advocated by petitioner is foreclosed by the non-retroactivity principle of Teague v. Lane.

E. Jury Instruction Regarding Burden of Proof on Mitigation Issue

Petitioner argues that the jury instructions at the punishment phase of his capital murder trial did not properly assign the burden of proof on the prosecution regarding the "mitigation" or Penry special issue.⁵⁸ Improper jury instructions in a state criminal trial do not generally form the basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002). "It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Mayabb v. Johnson, 168 F.3d 863, 867 (5th Cir. 1999). The fact that a jury instruction was incorrect under state law is not a basis for federal habeas relief. Gilmore, 508 U.S. at 342. Rather, the question is whether the allegedly ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle, 502 U.S. at 72; Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir. 1999) ("[The] question is . . . not merely whether the instruction is undesirable, erroneous, or even universally condemned."). "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of law." Kibbe, 431 U.S at 155. A federal court may reverse a state court criminal conviction based upon erroneous jury instructions only when the instructions in question render the entire trial fundamentally unfair. Id. at 154. Moreover, there is a strong presumption that errors in jury instructions are subject to harmless error analysis. Galvan, 293 F.3d at 765.

58 Petition, at pp. 126-27. Petitioner "fairly presented" this same claim to the Texas Court of Criminal Appeals as his thirteenth claim for state habeas relief. State Habeas Transcript, at p. 65. The state habeas trial court summarily recommended denial of this claim. State Habeas Transcript, at p. 244.
Petitioner's claim notes that the first capital sentencing special issue submitted to the jury at the punishment phase of his trial expressly imposed the burden of proof on the prosecution: "Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Mauriceo Mashawn Brown, would commit criminal acts of violence that would constitute a continuing threat to society?" Trial Transcript, Volume II, at p. 177. In contrast, the second special issue asked a more obtuse question: "State whether, taking 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, there is a sufficient mitigating circumstance or are sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed." Id. at p. 175. The petitioner's jury unanimously answered the first of these questions affirmatively and the second negatively. Id. at pp. 175-77.

There are several impediments to petitioner's claim. The initial problem with petitioner's complaint regarding the lack of a burden-of-proof instruction in connection with the Penry capital sentencing special issue is that petitioner failed to either request such an instruction or to object to the absence of such an instruction from his punishment phase jury instructions. See Kibbe, 431 U.S. at 154 ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.").

The second problem with petitioner's challenge to the state trial's failure to sua sponte instruct the jury regarding the burden of proof is that petitioner relies exclusively upon authorities from weighing jurisdictions to support his constitutional complaint. In weighing jurisdictions, "aggravating" factors serve the constitutionally-necessary narrowing function discussed in Tuilaepa as the "eligibility" determination. Under the Texas capital sentencing scheme, in contrast, the constitutionally-mandated narrowing function is performed at the guilt-innocence phase of trial. See Johnson v. Texas, 509 U.S. at 362. Thus, further narrowing is not required at the punishment phase of a Texas capital murder trial. See Jurek, 428 U.S. at 268-75. Petitioned attempts to rely upon Supreme Court opinions addressing the duties of state courts in weighing states are of little vitality when addressing the very different Texas capital sentencing scheme.

Additionally, there is no clearly established federal case law requiring that the prosecution bear the burden of disproving the existence of sufficient mitigating evidence to warrant a life sentence.⁵⁹ The United States Supreme Court has never required that capital sentencing juries be instructed that the prosecution must disprove the existence of sufficient mitigating circumstances to warrant a life sentence. The only Supreme Court authority cited by petitioner in support of his position, Walton v. Arizona, actually supports the respondent's position.

59 In Walton v. Arizona, 497 U.S. 639, 649-50 (1990), a plurality of the Supreme Court (opinion by White, J.) held there was no constitutional prohibition against a capital sentencing scheme which imposed the burden on the defendant of proving the existence of sufficient mitigating evidence to call for leniency. Also, in Woods v. Cockrell, 307 F.3d 353, 359-60 (5th Cir. 2002), the Fifth Circuit found no constitutional violation arising from the failure of the Texas capital sentencing scheme to assign a burden of proof with regard to the mitigation sentencing special issue.

Having reviewed the entire record of petitioner's capital murder trial, this Court concludes that the state trial court's failure to instruct the jury at the punishment phase of petitioner's capital murder trial regarding the burden of proof associated with the Penry special issue did not render the punishment phase of petitioner's capital murder trial fundamentally unfair. Petitioner's punishment phase jury instructions could not have been construed by a rational juror as precluding consideration of any of petitioner's proffered mitigating evidence. The fact that petitioner's jury was asked to respond negatively to the Penry issue if it felt petitioner deserved the death penalty, in contrast to the first special issue, along with the fact that the jury was fully advised by the trial court regarding the consequences of its answers to both of the capital sentencing special issues,⁶⁰ virtually eliminates any potential for prejudice to petitioner arising from the absence of an express imposition of the burden of proof in the Penry special issue. Under these circumstances, the absence of an express imposition of the burden of proof on the prosecution with regard to the Penry issue did not render the punishment phase of petitioner's trial fundamentally unfair.⁶¹

60 The state trial court expressly advised petitioner's jury at the punishment phase of trial as follows:

You are instructed that if the jury returns an affirmative finding on the first issue submitted, and a negative finding on the second issue, this Court shall sentence the defendant to death. If the jury returns a negative finding on the first issue or an affirmative finding as to the second issue, the court shall sentence the defendant to confinement in the Institutional Division of the Texas Department of Criminal Justice for life.

Trial Transcript, Volume II, at p. 172.

61 As the Supreme Court noted in Kibbe, an omission or incomplete instruction is far less likely to prejudice a defendant than a misstatement of the law. 431 U.S. at 155. Petitioner does not identify any erroneous statement of applicable law contained in petitioner's punishment phase jury instructions.

Further, any error in failing to expressly assign the burden of the mitigation special issue on the prosecution was harmless. The jury instructions at the punishment phase of petitioner's trial did not contravene any clearly established federal legal principle. Under such circumstances, the absence of an explicit jury instruction imposing a burden of proof beyond a reasonable doubt on the prosecution with regard to the mitigation special issue did not have a "substantial and injurious effect or influence" on the jury's answer to the mitigation issue at the punishment phase of petitioner's capital murder trial. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).⁶² Therefore, the Court rejects petitioner's complaint regarding the absence of a punishment-phase jury instruction imposing the burden on the prosecution to prove beyond a reasonable doubt a negative answer to the Penry capital sentencing special issue.

62 Respondent also correctly points out that adoption of the new rule advocated by petitioner in his claim is foreclosed by the non-retroactivity principle of Teague.

F. Jury Alignment

Petitioner argues that the Texas "ten-twelve rule," mandating unanimity on any jury answer favorable to the prosecution but only ten votes for a jury answer favorable to the defense on each capital sentencing special issue, violates the constitutional principles the Supreme Court announced in Mills v. Maryland, 486 U.S. 367 (1988) and McCoy v. North Carolina, 494 U.S. 433 (1990).⁶³ Petitioner also argues that the failure of the trial court to inform the jury regarding the effect of a single holdout vote on any of the capital sentencing special issues violated the Supreme Court's holding in Caldwell v. Mississippi, 472 U.S. 320 (1985).⁶⁴ However, the Supreme Court rejected the arguments underlying both of petitioner's claims when it held in Jones v. United States, 527 U.S. 373, 382 (1999), that the Eighth Amendment does not require that a jury be instructed as to the effect of a "breakdown in the deliberative process." This is because the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death. Id. The Supreme Court has never held that a jury instruction of the type requested by petitioner is constitutionally mandated.

63 Petition, at pp. 128-32. Petitioner "fairly presented" this same claim to the Texas Court of Criminal Appeals as his fourteenth claim for state habeas relief. State Habeas Transcript, at pp. 66-69. The state habeas trial court recommended denial of this claim with a reference to unidentified opinions of the Texas Court of Criminal Appeals. State Habeas Transcript, at p. 244.

64 Petition, at pp. 133-34. Petitioner "fairly presented" this same claim to the Texas Court of Criminal Appeals as his fifteenth claim for state habeas relief. State Habeas Transcript, at p. 70. The state habeas trial court recommended denial of this claim in summary fashion. State Habeas Transcript, at p. 244.

Petitioner's claims that the state trial court's failure to advise the jury regarding the effect of a hung jury violated the principles announced by the Supreme Court in Mills ⁶⁵ and McKoy ⁶⁶ because the state trial court, pursuant to a statutory prohibition, failed to inform the jury at the punishment phase of trial as to the effect of a single "no" vote on any of the Texas capital sentencing special issues. In conformity with the provisions of the Texas Code of Criminal Procedure in effect at the time of petitioner's trial, TEX. CRIM. PROC CODE. ANN., art. 37.071, §§ 2(d)(2) (f)(2) (Vernon Supp. 1997), the state trial court instructed the jury at the punishment phase of petitioner's capital murder trial that (1) the jury could not answer the first special issue, i.e., the future dangerousness issue, affirmatively unless it was unanimous and could not answer the same issue negatively unless at least ten jurors voted to do so and (2) the jury could not answer the Penry issue negatively unless it was unanimous and could not answer that same issue affirmatively unless at least ten jurors voted to do so.⁶⁷ In essence, petitioner complains that individual members of his jury were not furnished with a detailed explanation of exactly what constituted a "hung jury" at the punishment phase of a Texas capital murder trial. However, the Fifth Circuit has expressly rejected this same argument, noting that the law in Texas, a non-weighing jurisdiction, is completely different from that described in Mills:

65 In Mills, the Supreme Court remanded a death sentence for a new sentencing proceeding where the verdict form and the trial judge's instructions could have been construed by the jury as preventing it from considering any mitigating circumstance in weighing those mitigating circumstances against the aggravating circumstances it had found established by the evidence unless the jury unanimously agreed the mitigating circumstance had been established by the evidence. Mills, 486 U.S. at 374-75, 384.

66 In McKoy, the Supreme Court, relying on its holding in Mills, struck down a capital sentencing scheme under which the jury was permitted to consider only those "mitigating circumstances" which it unanimously found had been established by a preponderance of the evidence and then weigh those against the aggravating factors it had unanimously found established beyond a reasonable doubt. McKoy, 494 U.S. at 444.

67 Trial Transcript, Volume II, at pp. 171-72.

Under the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance. Thus, Mills is inapplicable.

The Texas system allows an answer of "Yes" to a special issue if all jurors vote "Yes," and allows an answer of "No" if ten jurors vote "No." Mills does not require a certain number of jurors to agree to impose the death penalty.

Jacobs v. Scott, 31 F.3d 1319, 1329 (5th Cir. 1994).⁶⁸

68 See also Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000).

In order to successfully challenge a state court's jury instructions at the punishment phase of a capital murder trial, a federal habeas petitioner must show more than that a capital sentencing scheme might have resulted in the jury being prevented from considering mitigating evidence; the petitioner must show a reasonable likelihood that such actually occurred. Boyde, 494 U.S. at 380. In this case, petitioner's argument that the jurors at his Texas capital murder trial might have concluded from the jury instructions at the punishment phase of trial that they were precluded from giving effect to their own opinions as to whether petitioner merited the death penalty asserts a construction of the punishment phase jury instructions at petitioner's trial that is neither reasonable nor likely to have actually occurred. See Johnson v. Texas, 509 U.S. at 368 (quoting Boyde, 494 U.S. at 381) ("In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a 'commonsense understanding of the instructions in the light of all that has taken place at trial.'").

Furthermore, the Fifth Circuit has rejected the exact same Fourteenth Amendment and Eighth Amendment claims urged by petitioner herein. See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996). There is no "clearly established" constitutional right to a jury instruction advising a capital sentencing jury of the effect of a hung jury. See United States v. Jones, 132 F.3d 232, 245 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999) (holding that no constitutional violation results from the refusal of a district court to inform the jury of the consequences of failing to reach a unanimous verdict).

Petitioner's reliance on the Supreme Court's holdings in Caldwell are likewise misplaced. The authorities cited by petitioner in both his federal habeas corpus petition and his state habeas corpus application in support of this claim are inapposite to the facts and circumstances of petitioner's case. In Caldwell, the Supreme Court addressed an instance in which a capital murder prosecutor's jury argument suggested that the jury was not the final arbiter of the defendant's fate. Caldwell, 472 U.S. at 325. Under Caldwell, "a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Dugger v. Adams, 489 U.S. 401, 407 (1989). In reviewing a Caldwell claim, the proper inquiry is whether under all the facts and circumstances, including the entire trial record, the state has misled the jury regarding its role under state law to believe that the responsibility for determining the appropriateness of the imposition of the death penalty rests elsewhere. See Sawyer v. Smith, 497 U.S. 227 (1990).⁶⁹ Nothing in the prosecution's closing jury argument or the state trial court's jury instructions at the punishment phase of petitioner's trial could rationally be construed as suggesting that an authority other than the jury would be the ultimate decisionmaker as to petitioner's sentence. On the contrary, the state trial court took great pains to correctly advise the jury of the exact impact of its findings on each of the two capital sentencing special issues. Therefore, nothing said by the prosecution in its closing argument or included or excluded from the petitioner's punishment phase jury instructions violated the principle recognized in Caldwell. As the Supreme Court held in Jones, the Eighth Amendment does not require a capital sentencing jury be advised regarding the effect of a hung jury. Therefore, the Court rejects petitioner's claims as to the state court's instructions to the jury regarding their required alignment.⁷⁰

69 See also Montoya v. Scott, 65 F.3d 405, 420 (5th Cir. 1995) (holding that a Texas trial court's similar instructions during voir dire accurately explaining the Texas special sentencing issues in a capital murder trial and the effect of the jury's answers to those issues did not violate Caldwell); Mann v. Scott, 41 F.3d 968, 984 (5th Cir. 1994) (holding a prosecutor's statements during closing argument to the effect that the jury knew that the defendant would not be executed the same night that the jury returned its verdict at the punishment phase of trial did not violate Caldwell).

70 Respondent also correctly points out that adoption of the new rule advocated by petitioner in his sixteenth and seventeenth claims herein is foreclosed by the non-retroactivity principle of Teague. See Beard v. Banks, 124 S.Ct. 2504, 2513 (2004) (holding that Mills announced a new rule for Teague purposes).

G. Unadjudicated Criminal Conduct

Petitioner argues that the state trial court erred when it admitted evidence of petitioner's unadjudicated criminal conduct during the punishment phase of petitioner's capital murder trial.⁷¹ The Supreme Court has never held that the Constitution prohibits the introduction at the punishment phase of a capital murder trial of evidence showing the defendant engaged in extraneous, unadjudicated, criminal conduct.⁷² The Fifth Circuit has repeatedly held that, under the Texas capital sentencing scheme, the admission of evidence of extraneous, unadjudicated, offenses at the punishment phase of a Texas capital murder trial does not violate a defendant's constitutional rights. See, e.g., Givens v. Cockrell, 265 F.3d 306, 308-09 (5th Cir. 2001) (holding admission of evidence of unadjudicated extraneous offenses did not render punishment phase of non-capital murder trial fundamentally unfair); Hafdahl v. Johnson, 251 F.3d 528, 536 (5th Cir. 2001) (holding that even if evidence of unadjudicated offenses was wrongly admitted, habeas corpus relief is permissible only if the error was of such magnitude that it resulted in fundamental unfairness). Nothing in Texas law requires that there be a final conviction in order for extraneous offenses to be admissible at the punishment phase of a capital murder trial. See Hogue v. Johnson, 131 F.3d 466, 478 n. 16 (5th Cir. 1997). Furthermore, it is settled that the prosecution need not prove beyond a reasonable doubt that the defendant committed the unadjudicated extraneous offenses entered into evidence at the punishment phase of a Texas capital murder trial. Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir. 1997). It is well-settled that a federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling also violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair. See, e.g., Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2000). "A state court's evidentiary rulings present cognizable habeas claims only if they run afoul of a specific constitutional right or render the petitioner's trial fundamentally unfair." Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999). When a federal court reviews state court evidentiary rulings on a petition for habeas corpus, it will grant relief only if the state court error is sufficiently egregious as to render the entire trial fundamentally unfair. Castillo v. Johnson, 141 F.3d 218, 224 (5th Cir. 1998). The challenged evidence must be a crucial, critical, or highly significant factor in the context of the entire case. Puckett, 176 F.3d at 821. The test to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability that the verdict might have been different had the trial been properly conducted. See Guidroz v. Lynaugh, 852 F.2d 832, 835 (5th Cir. 1988); Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988).

71 Petition, at pp. 111-13. Petitioner "fairly presented" this claim to the Texas Court of Criminal Appeals as the sixteenth claim in his state habeas corpus application. State Habeas Transcript, at pp. 71-72. The state habeas trial court summarily rejected this claim. State Habeas Transcript, at p. 244.

72 From time-to-time, individual Justices of the United States Supreme Court have expressed reservations over the reliability of such evidence when admitted at the punishment phase of a capital trial. See, e.g., Gray v. Netherland, 518 U.S. 152, 171 (1996) (Stevens, J. dissenting); Robertson v. California, 493 U.S. 879, 879-80 (1989) (Marshall and Brennan, JJ. dissenting from denial of certiorari); Sharp v. Texas, 488 U.S. 872, 872 (1988) (Marshall, J. dissenting from denial of certiorari). To date, however, neither a majority nor a plurality of the Supreme Court has ever squarely addressed this specific issue in an opinion for the entire Court.

The state trial court's admission at the punishment phase of testimony and other evidence showing the petitioner engaged in various unadjudicated criminal acts did not render the punishment phase of petitioner's trial fundamentally unfair. At the punishment phase of petitioner's capital murder trial the jury was faced with two special issues, the first of which asked whether there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and the second, asked whether considering all the evidence, including, among other things, the defendant's character and background, a life sentence was warranted. Thus, evidence showing the petitioner previously engaged in criminal or violent acts was both relevant and material to the issues before the jury at the punishment phase of petitioner's capital murder trial.

The fact that the State chose to prosecute petitioner for capital murder while disregarding petitioner's less offensive criminal acts did not render evidence of petitioner's many criminal acts irrelevant or immaterial to the issues before petitioner's capital sentencing jury. Nothing in the Constitution requires a state to prosecute a criminal defendant for all of his criminal acts or to prosecute a criminal defendant for all his offenses in any particular sequence. The fact that the State chose to prosecute petitioner for capital murder in lieu of, or merely before, pursuing lesser criminal charges did not preclude it from introducing evidence of petitioner's other criminal conduct at the punishment phase of petitioner's capital murder trial. Therefore, the Court rejects petitioner's claim as to the use by the State of unadjudicated criminal conduct during the punishment phase of his trial.⁷³

73 Respondent also correctly points out that this Court is precluded by the Teague non-retroactivity doctrine from adopting a new rule of criminal procedure barring the admission of evidence of unadjudicated criminal conduct from the punishment phase of a capital murder trial.

H. Parole Instructions

Petitioner argues that his constitutional rights were violated at the punishment phase of his trial when the state trial court instructed the jury regarding the provisions of Texas parole law relevant to a life sentence but then expressly directed the jury to disregard petitioner's potential parole eligibility when answering the two capital sentencing special issues.⁷⁴ Petitioner has not identified any Supreme Court authority establishing that Texas capital murder defendants, unlike those in other jurisdictions who face the possibility of a life sentence without the possibility of parole, are constitutionally entitled to a jury instruction regarding parole eligibility. Nor has petitioner identified any Supreme Court authority holding that jurisdictions such as Texas, where even those convicted of capital murder and given life sentences are eligible for parole, are required to permit capital sentencing juries to speculate on a defendant's potential parole eligibility when answering capital sentencing special issues. With regard to the first of these two matters, the Supreme Court has taken great pains in its opinions addressing jury instructions on parole eligibility in capital trials to distinguish those jurisdictions, such as Texas, which do not have terms of life imprisonment without the possibility of parole from those jurisdictions which provide that option to sentencing juries. See Simmons v. South Carolina, 512 U.S. 154, 168-69 n. 8 (1994).⁷⁵ The Supreme Court's recent opinion in Ramdass v. Angelone, 530 U.S. 156 (2000), continues the vitality of this distinction, as the plurality opinion for the Court specifically limited the holding in Simmons to "only those instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." Id. at 169. Justice O'Connor in concurrence also emphasized her view of the continued vitality of the rule in Simmons, as enunciated by the plurality in Ramdass, and that the Court was circumscribed by the terms of the AEDPA. Id. at 179 (O'Connor, J., concurring).

74 Petition, at pp. 103-10. Petitioner "fairly presented" these same claims to the Texas Court of Criminal Appeals as his seventh and eighth claims for state habeas corpus relief. State Habeas Transcript, at pp. 52-55. The state habeas trial court recommended summary denial of these claims. State Habeas Transcript, at p. 244.
The state trial court instructed petitioner's jury at the punishment phase of trial in the following manner:

Regarding the law of parole, you are instructed that a prisoner under sentence of death is not eligible for parole. A prisoner serving a life sentence for a capital felony is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good conduct time, equals 40 calendar years. You are not to consider the existence or application or the manner in which the parole law may be applied to this particular defendant when answering the special issue.

Trial Transcript, Volume II, at p. 173.

75 Representing the views of three members of the Supreme Court in Simmons, Justice O'Connor's concurring opinion is also significant because of its emphasis on the fact that, under South Carolina law, a capital defendant faced the possibility of life without parole. Simmons, 512 U.S. at 176-78 (O'Connor, J., concurring).

In Shafer v. South Carolina, 532 U.S. 36 (2001), the Supreme Court at least implicitly acknowledged the continued vitality of the distinction first noted in Simmons by holding that South Carolina's new capital sentencing scheme was guilty of the same constitutional defect identified in Simmons because, at least under some circumstances, the sentencing jury would be faced with a choice between a sentence of death and a sentence of life without the possibility of parole. See Id. at 51 ("We therefore hold that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole.").⁷⁶

76 In Kelly v. South Carolina, 534 U.S. 246 (2002), the Supreme Court reiterated its holding in Shafer, emphasizing once again that capital sentencing juries in that South Carolina which unanimously find the presence of an aggravating circumstances are left to select between one of only two possible sentences: death or life imprisonment without the possibility of parole. Id. at 252 n. 2.

Like the Supreme Court in Ramdass, this Court must view the petitioner's claims herein through the prism of the AEDPA. Thus, the issue before this Court is not whether the petitioner has made a compelling policy argument for extending the holding of Simmons to jurisdictions such as Texas, where convicted capital murder defendants do not face the prospects of only a death sentence or a term of life imprisonment without the possibility of parole. Rather, the question before this Court is whether, in rejecting on the merits petitioner's Eighth and Fourteenth Amendment claims, the Texas courts acted in a manner that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Having carefully reviewed Supreme Court case law on the subject, this Court finds nothing about the Texas Court of Criminal Appeals' rejection of petitioner's claims that was either contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States." On the contrary, the Supreme Court has carefully distinguished jurisdictions such as Texas from those to which Simmons applied and has consistently continued to adhere to that distinction in its subsequent opinions addressing the Fourteenth Amendment's Due Process Clause. Moreover, unlike the defendant in Simmons, petitioner's jury was given accurate information regarding parole eligibility for those sentenced to death and those convicted capital murderers who are sentenced to serve a life sentence.

Petitioner's arguments in support of his Eighth Amendment claim do not support a conclusion that "clearly established" federal law, as enunciated by the Supreme Court, requires capital murder defendants be permitted to invite their sentencing juries to speculate on parole when deliberating over capital sentencing special issues. It is true that the Supreme Court has held in the context of the Eighth Amendment that capital sentencing juries must be permitted to consider and give effect to "constitutionally relevant mitigating evidence." Buchanan v. Angelone, 522 U.S. 269, 276 (1998). However, the Supreme Court has never declared that information regarding state parole eligibility laws constitutes "mitigating evidence." On the contrary, the Supreme Court has consistently employed the term "constitutionally relevant mitigating evidence" to describe evidence which tends to diminish a convicted capital murderer's moral blameworthiness or lessen the reprehensible nature of the offense, i.e., evidence which relates to the defendant's background or character or to the circumstances of the offense. See, e.g., Tennard v. Dretke, 124 S.Ct. 2562, 2571 (2004) (holding that impaired intellectual functioning is inherently mitigating); Penry II, 532 U.S. at 796-97 (holding that jury instructions is a Texas capital sentencing proceeding did not adequately afford the jury a means of giving effect to mitigating evidence of the defendant's mental retardation and history of childhood abuse); Lockett v. Ohio, 438 U.S. 586, 604-05 (1978).

The Supreme Court has never declared that state statutes and administrative regulations addressing parole eligibility for those defendants convicted of capital murder and sentenced to terms of life imprisonment lessen a defendant's moral blameworthiness. There simply is no "clearly established" Supreme Court precedent holding that the Eighth Amendment mandates jury consideration of a defendant's potential parole eligibility at the punishment phase of a Texas capital trial. Directing a jury to consider an issue as ethereal and transitory as a state's then-current parole system does a grievous injustice to both the defendant and the state during a capital sentencing proceeding because it encourages the jury to consider a wide range of factors that are totally irrelevant to either the circumstances of the crime, the defendant's blameworthiness, or the legitimate purposes of capital sentencing, i.e., deterrence and retribution. See Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir. 1998). Therefore, the Court finds that petitioner's claim is without merit.⁷⁷

77 Additionally, it is well-settled that the Teague non-retroactivity doctrine forecloses extension of the rule in Simmons to Texas. Woods v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002).

I. Limitations on Cross-Examination of Mary Patrick

Petitioner argues that the state trial court's restrictions on his cross-examination of Mary Patrick violated petitioner's Sixth Amendment right to confront adverse witnesses.⁷⁸ The Confrontation Clause of the Sixth Amendment guarantees the right of the accused in a criminal proceeding to be confronted with the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. Id. A criminal defendant possesses a constitutional right under the Sixth Amendment's Confrontation Clause to engage in otherwise appropriate cross-examination of a prosecution witness designed to show bias or to expose the jury to facts from which the jurors could appropriately draw inferences relating to the reliability of the witness. Id. at 680. However, the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). Trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, confusions of the issues, the witness' safety, and interrogation that is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 679; Bigby v. Cockrell, 340 F.3d 259, 277 (5th Cir. 2003). Generally, the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Ritchie, 480 U.S. at 53.

78 Petition, at pp. 89-94. Petitioner "fairly presented" this claim to the Texas Court of Criminal Appeals as his fifth claim for state habeas corpus relief. State Habeas Transcript, at pp. 44-45. The state habeas trial court (1) pointed out that the only evidence in the record supporting this claim consisted of a bill of exceptions in which petitioner's trial counsel had listed questions he wished to ask Mary Patrick on cross-examination and his speculation as to what her responses to same would have been, (2) explained that the Texas Court of Criminal Appeals had rejected this same claim when Kenneth Foster presented it as part of his direct appeal, and (3) concluded that the Texas Court of Criminal Appeals' determination that the questions at issue were only marginally relevant to the issues at petitioner's trial rendered this claim without merit. State Habeas transcript, at p. 243.

Prosecution witness Mary Patrick's testimony played a pivotal role at the guilt-innocence phase of petitioner's capital murder trial. Patrick's eyewitness testimony corroborated key elements of the account of petitioner's fatal shooting of LaHood given by prosecution witness Julius Steen and furnished additional incriminating details concerning the shooting. More specifically, Patrick testified at the guilt-innocence phase of trial that when she and LaHood arrived at the LaHood residence, she walked down to the street and confronted the occupants of the vehicle that had been following her, had a brief, unpleasant, conversation with the occupants of that vehicle and began walking away from that vehicle, but as she and LaHood walked toward the house, the vehicle took off and then abruptly stopped and backed up, and she heard a door slam and saw a man, wearing a scarf across his face and holding a gun, get out of the vehicle and run toward them. She and LaHood began to walk back toward LaHood's vehicle, which was parked in the driveway when the man approaching them demanded LaHood's keys. When LaHood told Patrick to get in the house, the gunman demanded LaHood's keys, wallet, and money, LaHood responded "she's coming back with the keys," and Patrick saw the gunman point the gun at LaHood's face, stand for about two minutes. Patrick then heard a loud shot and saw LaHood fall to the ground.⁷⁹ On direct examination, Patrick admitted that she was a topless dancer, had met LaHood about four years before at a topless bar, had been intimate with LaHood for a few weeks, and had been drinking earlier that night. She also testified that shortly after the shooting, the police took her to a location where she identified the person she believed to be the shooter, and that she was very frightened and emotionally distraught at the time she made the identification.⁸⁰

79 S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 499-515.

80 Id. at pp. 494-97 513-15.

On cross-examination by petitioner's trial counsel, Patrick admitted that she had an assault charge pending against her but denied that she had been offered or promised anything in connection with that prosecution in exchange for her testimony at petitioner's trial, she had had quite a bit to drink that night, she confronted the driver and occupants of the vehicle that had followed her car to the LaHood residence, and she was wearing the same outfit she had worn when performing earlier that evening. She also testified that she had only seen the shooter's eyes and head above his scarf and below his baseball cap, her written statement given to police shortly after the shooting included no mention of the shooter having worn a bandana across his face, and on the night of the shooting, she had identified Dillard at the gas station as the shooter.⁸¹

81 Id. at pp. 517-18, 523-24, 526-29, 534, 536-40, and 545-47.

Petitioner later recalled Patrick to testify during the guilt-innocence phase of trial and elicited testimony from her that she could not remember whether she had screamed "it's my fault" when members of the LaHood family exited the house following the shooting and she could not recall apologizing to members of the LaHood family immediately after the shooting.⁸² Foster's trial counsel elicited testimony from Patrick establishing that, during the time she was giving her statement to Detective Menefee, she stopped several times and called her ex-husband to advise him that LaHood had been shot and was downtown with police.⁸³

82 S.F. Trial, Volume XVIII, testimony of Mary Patrick, at pp. 798-801.

83 Id. at pp. 801-04.

Petitioner also called LaHood's mother to testify during the guilt-innocence phase of trial. She testified that Patrick was "very hysterical" immediately after the shooting, blamed herself for confronting the attackers instead of going inside the house, and had not apologized to the LaHood family for Michael's death.⁸⁴

84 S.F. Trial, Volume XVIII, testimony of Norma LaHood, at pp. 835-37.

Foster's trial counsel called San Antonio Police Detective John Menefee to testify during the guilt-innocence phase of trial. On direct examination, Menefee testified that he took Patrick's statement on the night of the shooting, she was emotionally upset, he could not smell any alcohol on her breath, and she gave him no indication that the shooter had worn a mask or bandana over his face. He also testified that Patrick used the phone several times while giving her statement, was emotional but listened carefully as he read her statement to her, and initially identified Dillard as the shooter.⁸⁵ On cross-examination, Menefee testified that Patrick told him the shooter had demanded LaHood's keys and money.⁸⁶

85 S.F. Trial, Volume XVIII, testimony of John Menefee, at pp. 845-49 and 853-54.

86 Id. at p. 851.

In a brief Bill of Exception near the end of the guilt-innocence phase of petitioner's trial, Foster's trial counsel, joined by petitioner's trial counsel, asserted that, if they had been permitted by the trial court they would have (1) asked Patrick about her marital status as of August 14, 1996 and anticipated that she would have said she was married on that date, (2) asked Patrick whether she told Detective Menefee that husband's name was Kenneth Mox and anticipated that she would have answered affirmatively, (3) asked Patrick if she executed an affidavit in another cause on October 30, 1996 in which she stated that she had never been married to Kenneth Mox and anticipated she would have answered affirmatively, (4) asked her if she stated in the same affidavit that she was married to a Scott Rarick of Las Vegas and anticipated she would have answered affirmatively, (5) asked if she stated in her affidavit that she was not divorced from Scott Rarick and anticipated that she would have answered that she was not divorced from Rarick as of August 14, 1996, (6) asked Patrick if she had several telephone conversations with Kenneth Mox while she was giving her statement to Detective Menefee and anticipated that she would have answered affirmatively, and (7) asked Patrick if she told Detective Menefee that she wished to speak with her husband, Kenneth Mox, before continuing her statement and anticipated she would have answered affirmatively.⁸⁷

87 S.F. Trial, Volume XVIII, at pp. 867-69.

During his state habeas corpus proceeding, petitioner introduced no further testimony from Mary Patrick, Detective Menefee, or any other witness regarding the subjects of the defendants' Bill of Exceptions. Thus, petitioner failed to present the state habeas court with any evidence showing what testimony Mary Patrick would have given had petitioner's trial counsel been permitted to question her regarding either her marital status or the affidavit she allegedly executed in a separate civil proceeding prior to her testimony at petitioner's trial. Speculation as to what answers Patrick might have given had she been questioned about those subjects at petitioner's trial does not constitute evidence.

Cross-examination is constitutionally guaranteed to help a criminal defendant expose a prosecution witness' motivation in testifying, particularly the existence of any bias that might impact on the witness' credibility. Van Arsdall, 475 U.S. at 678-79. However, the constitutional guarantee does not extend to every form of questioning that defense counsel subjectively believes he is entitled to pursue. Id. The trial judge retains the authority to impose reasonable limits on cross-examination if other concerns, such as preventing undue harassment, prejudice, or confusion of the issues, predominate.⁸⁸

88 Id.

The state trial court advised the parties that he would not permit cross-examination of Mary Patrick concerning her marital status because he did not believe that subject to be relevant to the issues properly before the jury at petitioner's trial.⁸⁹ Patrick's trial testimony, though important to the prosecution's case against petitioner, was primarily corroborative in nature. Moreover, Patrick admitted freely during her testimony at the guilt-innocence phase of petitioner's trial that she was a topless dancer, had known LaHood for several years and had been intimate with him in the weeks immediately prior to his fatal shooting, had a lot to drink the night of the shooting, identified a person other than petitioner as the shooter immediately after the shooting, and was extremely emotional immediately after the shooting. In the absence of any evidence showing that Patrick's marital status was relevant to any issue before petitioner's jury, the state trial court retained the authority to limit cross-examination that was designed to harass Patrick, as opposed to shed light on her credibility. Petitioner and Foster's trial counsel suggested no facts to the state trial court establishing that Patrick's marital status played any role in the murder of LaHood or furnished any possible motivation for Patrick to give biased testimony at petitioner's trial. The state trial court acted in a reasonable manner, fully consistent with the Confrontation Clause, when it excluded interrogation of Patrick concerning her marital status.

89 S.F. Trial, Volume XVII, at p. 523.

Furthermore, even assuming that, prior to her testimony at petitioner's trial, Patrick had executed an affidavit in an unrelated civil proceeding in which she purported to state her marital status, petitioner presented the state habeas court with no evidence showing that either (1) there was any factual inaccuracy in that affidavit or (2) Patrick would have furnished false testimony about either her marital status or the affidavit in question had she been questioned about either subject at petitioner's trial. Likewise, petitioner furnished the state habeas court with no testimony or other evidence showing precisely what, if anything, Patrick had told Detective Menefee about her marital status. Therefore, the only possible benefit petitioner could have derived from eliciting testimony from Patrick concerning her marital status would have been to establish that her relationship with LaHood had been an adulterous one. The state trial court could reasonably have believed that such an attack on Patrick's credibility would subject her to needless harassment and confuse the issues properly before the jury and the limitations on the scope of defendants' cross-examination did not violate petitioner's Sixth Amendment right to confront adverse witnesses.

Moreover, even if the state trial judge's limitations on the cross-examination of Mary Patrick violated petitioner's Sixth Amendment right to confront adverse witnesses, under the facts of petitioner's case, that error would be harmless. An erroneous limitation on a criminal defendant's right to cross-examine a prosecution witness is properly subjected to harmless error analysis. Van Arsdall, 475 U.S. at 684. The test for harmless error in a federal habeas corpus action brought by a state prisoner is "whether the error had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.⁹⁰ In making a harmless error determination regarding an erroneous limitation on cross-examination, this Court must examine a number of factors, including the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case. Van Ardsall, 475 U.S. at 684.

90 However, if the court finds that the evidence on the question of the harmlessness of the error is evenly balanced, federal habeas relief must be granted. O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

Mary Patrick did furnish critical evidence regarding the circumstances of the fatal shooting of LaHood; she testified that the shooter demanded LaHood's keys and money and held a gun to LaHood's face for some time before the fatal shot was fired. This testimony supported the prosecution's theory that the shooting occurred in the course of a robbery attempt and negated petitioner's assertion that the shooting had been accidental. However, Patrick's testimony was far from the only evidence establishing that an attempted robbery was under way at the time of the fatal shooting. In fact, the importance of Patrick's testimony at the guilt-innocence phase of petitioner's trial was primarily its value as corroboration for the testimony of petitioner's accomplice Julius Steen. Furthermore, the forensic evidence was virtually uncontradicted and established that LaHood was shot once at point blank range just below the eye with the bullet moving directly from the face through the cranial vault, severing the brain stem.⁹¹ Nothing about LaHood's gunshot wound indicated the fatal shot had been random or accidental. Thus Patrick's eyewitness testimony was largely cumulative and corroborative of Steen's testimony and the other evidence which showed the LaHood shooting occurred during the course of an attempted robbery and was anything but accidental. Finally, petitioner's own testimony at the guilt-innocence phase of his trial (1) established that petitioner and the others in Foster's vehicle were engaged in a series of armed robberies on the night of the fatal shooting and (2) placed the murder weapon in petitioner's hand at the instant the fatal shot was fired.⁹²

91 S.F. Trial, Volume XVIII, testimony of Russell D. Deidiker, at pp. 694-703.

92 S.F. Trial, Volume XVIII, testimony of Mauriceo Brown, at pp. 724-38.

The state trial court's circumscription of the cross-examination of Mary Patrick, even if erroneous, had no substantial and injurious effect or influence in determining the jury's verdict at petitioner's capital murder trial and was therefore harmless. Thus, the Court finds that petitioner's claim does not warrant relief.

J. Actual Innocence Claim

Petitioner argues that he had presented new evidence showing that he was actually innocent of the capital murder of LaHood.⁹³ Specifically, petitioner claims that his testimony at his capital murder trial was false and that DeWayne Dillard was actually the person who shot Michael LaHood.⁹⁴ Respondent correctly points out that, insofar as petitioner presents his "actual innocence" claim as an independent ground for federal habeas relief, that effort is foreclosed by the Supreme Court's holding in Herrera v. Collins, 506 U.S. 390 (1993), which bars consideration of such claims as independent bases for federal habeas relief. In Herrera, the Supreme Court unequivocally declared that claims of actual innocence based on newly discovered evidence do not constitute an independent ground for granting federal habeas corpus relief. Id. at 400-01. Furthermore, the Supreme Court reaffirmed in Herrera the deferential standard recognized in Jackson v. Virginia as the appropriate test for evaluating the sufficiency of evidence supporting a criminal conviction. Id. at 401 (quoting Jackson, 443 U.S. 307, 319 (1979)) ("[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."). However, in Herrera the Supreme Court also reaffirmed that a state prisoner who supplements his federal habeas claims with "a colorable showing of actual innocence" can thereby circumvent procedural barriers to obtaining federal habeas review on the merits for his otherwise procedurally defaulted constitutional claims. Id. at 404.

93 Petition, at pp. 95-102. Petitioner "fairly presented" an "actual innocence" claim to the Texas Court of Criminal Appeals as his final claim for state habeas corpus relief. State Habeas Transcript, at pp. 80-81. However, as explained hereinafter, the factual allegations, legal theories, and evidence petitioner presented to the state habeas court in support of his "actual innocence" claim differs substantially from the factual allegations, legal arguments, and evidence petitioner has presented to this Court in support of his eighth claim herein. More specifically, petitioner presents this Court with completely new, unexhausted, factual allegations regarding the credibility of Mary Patrick and Julius Steen, as well as new evidence, never presented to any state court, in support of his "actual innocence" claim. This Court cannot base a finding of "actual innocence" on factual allegations, legal theories, and evidence that petitioner has never presented to any state court. 28 U.S.C. § 2254(b)(1)(A).
However, petitioner did present at least some of the evidence he relies on in support of his "actual innocence" claim in this Court to the state habeas court. Thus, some aspects of petitioner's "actual innocence" claim have been properly exhausted and were rejected on the merits by the state habeas court. The state habeas trial court determined that petitioner (1) had twice testified that he fired the fatal shot, (2) told police that he fired the fatal shot, and (3) told his trial counsel that he fired the fatal shot. State Habeas Transcript, at p. 244. Furthermore, the state habeas trial court concluded that petitioner's recantation of his previous testimony did not constitute the type of "newly discovered" evidence that can support a claim of actual innocence. Id. at pp. 244-45.

94 In his testimony during his state habeas corpus hearing, petitioner stated that he did not shoot LaHood and Dillard was the real shooter, but he never told the detectives who questioned him following the shooting that Dillard was the shooter, and he testified that he had been the shooter because his trial counsel told him he needed to be consistent with his statement to police and Foster threatened to harm his family if he strayed from the version of the shooting all four occupants of Foster's vehicle agreed upon in the minutes immediately after the shooting. S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 4-13.

1. Petitioner's Actual Innocence Claim at the Guilt-Innocence Phase of Trial

In Schlup v. Delo, the Supreme Court explained that a petitioner seeking to surmount a procedural default through a showing of "actual innocence" must establish it is more likely than not that, in light of the new evidence, no juror, acting reasonably, would have voted to find the petitioner guilty beyond a reasonable doubt. 513 U.S. 298, 326-27 (1995).⁹⁵ The Supreme Court described this test as a much less onerous standard than the sufficiency of the evidence test it adopted in Jackson. Schlup, 513 U.S. at 330.⁹⁶ Thus, a federal habeas petitioner's showing of "actual innocence" is not insufficient solely because the trial record contained sufficient evidence to support the jury's verdict. Schlup, 513 U.S. at 331.

95 The Supreme Court's explanation of what is meant by the term "actual innocence" is helpful to understanding how a federal habeas court must evaluate such a claim than the standard itself:

The meaning of actual innocence . . . does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.

. . . It must be presumed that a reasonable juror would consider fairly all of the evidence presented. It must also be presumed that such a juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt.

Schlup v. Delo, 513 U.S. 298, 329 (1995) (citations omitted).

96 As the Court explained in Schlup:

Though the [ Murray v.] Carrier [ 477 U.S. 478 (1986)] standard requires a substantial showing, it is by no means equivalent to the standard of Jackson v. Virginia. . . . The Jackson standard, which focuses on whether any rational juror could have convicted, looks to whether there is sufficient evidence which, if credited, could support conviction. The Jackson standard thus differs in at least two important ways from the Carrier standard. First, under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review. In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments. Second, and more fundamentally, the focus of the inquiry is different under Jackson than under Carrier. Under Jackson, the use of the word "could" focuses the inquiry on the power of the trier of fact to reach its conclusion. Under Carrier, the use of the word "would" focuses the inquiry on the likely behavior of the trier of fact.

Indeed, our adoption of the phrase "more likely than not" reflects this distinction. Under Jackson, the question whether the trier of fact has the power to make a finding of guilt requires a binary response: Either the trier of fact has power as a matter of law or it does not. Under Carrier, in contrast, the habeas court must consider what reasonable triers of fact are likely to do. Under this probabilistic inquiry, it makes sense to have a probabilistic standard such as "more likely than not." Thus, though under Jackson the mere existence of sufficient evidence to convict would be determinative of petitioner's claim, that is not true under Carrier.

Schlup, 513 U.S. at 330 (citations omitted).

a. Petitioner's Recantation

The fundamental problems with petitioner's claim of "newly discovered evidence" showing his actual innocence are two-fold: first, the state habeas trial court expressly rejected petitioner's recantation of his trial testimony and petitioner's thirteenth-hour assertion that Dillard was actually the person who shot LaHood;⁹⁷ and second, petitioner admitted during his testimony at his state habeas corpus hearing that he had participated in multiple robberies with Foster, Dillard, and Steen on the night of the shooting, later gave a false statement to police about the shooting, and gave testimony at his trial to the effect that he, and not Dillard, had been the shooter.⁹⁸ Having independently reviewed the record from petitioner's trial and state habeas corpus hearing, the Court concludes that the state habeas trial court's factual finding regarding the lack of credibility in petitioner's belated identification of Dillard as the shooter was fully supported by the record before it. Petitioner's testimony at his state habeas corpus hearing was a mix of internal contradictions and inconsistencies.⁹⁹ In addition, the state habeas trial court had before it not only petitioner's testimony during the evidentiary hearing held in petitioner's state habeas corpus proceeding but also all of the evidence from petitioner's trial. Moreover, the state habeas court also had before it the testimony of petitioner's two trial counsel and court-appointed investigator, which, together with petitioner's own testimony at the same hearing, established that the petitioner never told any of them that Dillard was actually the person who fatally shot LaHood.¹⁰⁰ Under such circumstances, the state habeas trial court's factual determination that petitioner's recantation lacked credibility was fully supported by the record then before the state habeas court, regardless of whether the state judge who made that credibility finding personally witnessed petitioner's testimonial demeanor during the state habeas corpus proceeding.¹⁰¹

97 "In this matter, the defendant having previously testified and given statements about the occurrence, relating at least three separate versions of what happened lack credibility, to say the least." State Habeas Transcript, at p. 241.

98 S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 18-19, 23-25, 33-35, 39-41, 43-46.

99 During cross-examination at his state habeas corpus hearing, petitioner testified that (1) he witnessed Dillard shoot LaHood but believed the shooting was accidental; (2) as they drove away from the shooting, both Foster and Dillard told petitioner to keep his mouth shut yet, despite that directive, he gave police a statement and testified about the shooting because he was afraid of Foster; (3) the only part of his statement about the LaHood shooting that was false was the part in which he admitted he was holding the gun when it fired the fatal shot; (4) despite the threats Dillard and Foster made against him and his family, he gave police statements that implicated both Foster and Dillard in the robberies earlier that night, as well as the fatal shooting of LaHood; (5) his trial testimony was consistent with Foster's account of the fatal shooting yet, despite that, Foster threatened to kill petitioner after petitioner testified at trial; (6) he testified at the guilt-innocence phase of his trial in the same manner as he had described the shooting to his trial counsel; (7) he again testified falsely at the punishment phase of his trial when he admitted he had shot LaHood; and (8) some of his conversations with the other co-defendants about petitioner "taking the fall" occurred after all four had given the police their statements about the shooting. S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 18-19, 22-27, 33-36, 39-46, 52-53, 56, 63, 70.

100 See S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at pp. 79-80; Volume 7, testimony of William T. Reece, at pp. 25 33-35; S.F. State Habeas Hearing, Volume 8, testimony of Jose Guerrero, at pp. 33-39, 42, 44, 60-63, 70-71, 73; S.F. State Habeas hearing, Volume 8, testimony of Manuel Alfaro, at pp. 87-90, 94, 99; S.F. State Habeas hearing, Volume 13, testimony of Mauriceo Brown, at pp. 10-13 52-53.

101 It is well-settled that recanting testimony and affidavits are viewed with extreme skepticism. Graves v. Cockrell, 351 F.3d 143, 153 (5th Cir. 2003). Given the numerous inconsistencies and logical conflicts contained in petitioner's written statement to police, his trial testimony, and his testimony during his state habeas corpus proceeding, there was nothing unreasonable about the state habeas court's determination, after what amounted to a "paper hearing," see Baldree v. Johnson, 99 F.3d 659, 663-64 (5th Cir. 1996), that petitioner's state habeas testimony recanting his trial testimony was incredible.

Even if it were viewed as credible, instead of exonerating petitioner, petitioner's testimony at his state habeas proceeding established petitioner's participation in a conspiracy to commit multiple armed robberies that resulted in the murder of LaHood and conceal the identity of the true murderer of LaHood. Simply put, petitioner admitted that he played an active role in, and shared the proceeds from, at least one of the robberies prior to the LaHood shooting, gave police a false statement regarding the LaHood shooting, and twice gave perjured testimony designed to protect Dillard from prosecution for capital murder. Petitioner's jury found Kenneth Foster guilty of capital murder based on evidence of Foster's participation in the LaHood shooting that was far less extensive than the conduct to which petitioner admitted during his state habeas corpus proceeding. Thus, rather than establishing petitioner's "actual innocence," petitioner's testimony at his state habeas corpus hearing merely furnished an alternative theory under which petitioner could have been held criminally responsible: the Texas law of parties.

b. Other "Newly Discovered" Evidence

Other than his own self-serving testimony during his state habeas corpus proceeding that Dillard was the shooter, the only allegedly "newly discovered" exculpatory evidence identified by petitioner consisted of (1) the testimony of petitioner at his state habeas hearing regarding threats Foster and Dillard allegedly made against petitioner prior to, during, and after petitioner's trial, (2) the testimony of Anthony Allen regarding threats allegedly made against petitioner by Foster prior to petitioner's trial, (3) petitioner's testimony and the testimony of Curtis Smith regarding threats Foster made against petitioner prior to their joint trial, (4) the testimony of petitioner at his state habeas hearing regarding his initially denying any knowledge of, or involvement in, the LaHood shooting, and (5) collateral attacks upon the credibility of Mary Patrick and Julius Steen.¹⁰²

102 Petition, at pp. 95-102.

(1) Threats by Foster and Dillard

As to the first four of these categories of evidence, petitioner had personal knowledge of the facts in question at or before the time of his trial. In fact, during the pretrial hearing on petitioner's motion to suppress his statement, petitioner testified in a manner at least somewhat consistent with the testimony he gave at his state habeas corpus hearing regarding his initial claim of no knowledge of, or involvement in, the LaHood shooting.¹⁰³ Thus, none of these first four categories of evidence were "newly discovered."

103 Compare S.F. Trial, Volume IV, testimony of Mauriceo Brown, at pp. 236-55, with S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 4-5, 38, 47-48, 72.

(2) Mary Patrick's Credibility

Petitioner's attempts to collaterally challenge the credibility of Mary Patrick fails to satisfy the Schlup standard. Petitioner never presented the Texas Court of Criminal Appeals with any factual or legal arguments supporting his "actual innocence" claim that either focused on Mary Patrick's credibility or were premised upon the psychiatric records that petitioner has furnished to this court as Exhibit No. 23 to petitioner's federal habeas corpus petition. In fact, petitioner failed to present the state habeas court with any factual argument, legal authority, or evidence relating to this purported "newly discovered evidence" concerning Mary Patrick's credibility.¹⁰⁴ Petitioner's only "newly discovered evidence" regarding Patrick's credibility consists of a purported psychiatric record from an examination of Mary Patrick dated August 15, 1996 containing a very brief summary of the events leading up to the fatal shooting of LaHood which included a cryptic notation indicating that "she friend were on way home, when reached friends [sic] house, they saw they were being followed."¹⁰⁵ At trial, Patrick testified that she was followed closely by Foster's vehicle for several miles before she and LaHood arrived at the LaHood residence.¹⁰⁶ Petitioner perceives a conflict between Patrick's trial testimony and the psychiatric note's cryptic reference to when Patrick and LaHood realized they were being followed. However, because petitioner never presented these psychiatric records, or the purported inconsistency between the information they contain and Patrick's trial testimony, to the state habeas court, this Court cannot consider this argument as a basis for granting federal habeas relief.

104 In his state habeas corpus application, petitioner did mention Mary Patrick's trial testimony in connection with his "actual innocence" claim but neither offered any factual allegations asserting that Patrick committed perjury during petitioner's trial nor alleged that Patrick gave a psychiatrist a different account of LaHood's fatal shooting than she gave during her testimony at petitioner's trial. State Habeas Transcript, at pp. 79-80.

105 See Exhibit 23 attached to Petition.

106 S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 499-500; Volume XVIII, testimony of Mary Patrick, at pp. 804-05.

Before seeking federal habeas corpus relief, the Supreme Court requires a state prisoner to exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349 (2004). Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Riley, 339 F.3d at 318. A fundamental prerequisite to federal habeas corpus relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief. Wilder, 274 F.3d at 259. Presenting new legal or factual theories in a federal habeas petition that have not been presented to the state courts warrants a finding that petitioner has failed to exhaust state remedies. Sones v. Hargett, 61 F.3d 410, 414-15 (5th Cir. 1995). Thus, presenting new legal or factual theories that have not been presented to the state courts in a federal habeas petition warrants dismissal of the petition.

A habeas petitioner who presents additional evidentiary support to the federal court that was not presented to the state courts has not exhausted state remedies with regard to that evidence. Kunkle, 352 F.3d at 988. However, the presentation for the first time in a federal habeas corpus proceeding of affidavits and documentary evidence that does not fundamentally alter the claim presented to the state courts does not raise exhaustion problems. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

Because petitioner (1) did not present Patrick's psychiatric records to the state habeas court in support of his "actual innocence" claim (or any other state habeas claim for that matter), (2) did not allege any facts relating to any purported inconsistency between Mary Patrick's psychiatric records and her trial testimony in his state habeas corpus pleadings, and (3) failed to present the state habeas court with any legal arguments premised on Mary Patrick's psychiatric records, petitioner did not "fairly present" this aspect of his "actual innocence" claim to the state habeas court. Petitioner has failed to allege any facts showing that the psychiatric records of Mary Patrick incorporated in Petitioner's Exhibit No. 23 were unavailable to petitioner, despite the exercise of due diligence, at the time of petitioner's state habeas corpus proceeding. See Roberts v. Dretke, 381 F.3d 491, 500 (5th Cir. 2004). Moreover, petitioner has failed to allege any specific facts showing that the psychiatric report on Mary Patrick dated August 15, 1996 and included in petitioner's Exhibit No. 23 was unavailable to petitioner's trial counsel prior to petitioner's trial had counsel exercised due diligence. Pursuant to the AEDPA, petitioner is not entitled to further factual development of his claims in this federal habeas corpus proceeding unless, among other things, the factual basis for that claim could not have previously been discovered and developed through the exercise of due diligence. 28 U.S.C. § 2254(e)(2). Therefore, petitioner's failure to exhaust available state court remedies on the new factual allegations and new evidence he presents this Court in support of this aspect of his "actual innocence" claim forecloses federal habeas review of this claim under the AEDPA.

Additionally, the notation in Mary Patrick's psychiatric records relied upon by petitioner furnishes no rational basis for impeaching Mary Patrick's trial testimony. Petitioner has presented this Court no fact-specific allegations, much less any evidence, establishing either (1) precisely what Patrick actually told the individual who prepared the brief summary found in Patrick's psychiatric records, (2) that Patrick has ever adopted the summary in question as a complete and accurate description of the events on the night of the shooting, or (3) that the summary was inconsistent with Patrick's trial testimony. Thus, there is nothing before this Court establishing with any rational degree of clarity that Patrick spoke the words reflected in the report or whether the psychiatrist who wrote them merely concluded that was what Patrick intended to communicate. There is nothing logically inconsistent with Patrick's trial testimony and her purported assertion to a psychiatrist that she and LaHood "saw they were being followed" when they arrived at the LaHood residence.

(3) Julius Steen's Credibility

Similarly, Petitioner's attempts to collaterally challenge the credibility of Julius Steen fails to satisfy the Schlup standard. Petitioner's only support for this conclusory assertion consists of complaints that Steen entered into a plea agreement with state and federal prosecutors and has refused to talk with petitioner's federal habeas counsel or the investigator hired by petitioner's federal habeas counsel. Petitioner never supported his "actual innocence" claim in the state habeas court with any complaints about the inaccuracy of Julius Steen's trial testimony. Petitioner therefore failed to "fairly present" the state habeas court with any factual allegations about Steen's alleged refusal to speak with petitioner's counsel. Nothing contained in petitioner's pleadings in the state habeas court was reasonably calculated to alert that court to petitioner's argument in this Court that Steen's unwillingness to meet with petitioner's counsel somehow supported a finding of "actual innocence."

Julius Steen testified under oath during the evidentiary hearing held in petitioner's state habeas corpus proceeding.¹⁰⁷ Moreover, the terms of Steen's plea agreement were known to all parties at the time of petitioner's trial and were, in fact, the subject of cross-examination during Steen's testimony at petitioner's trial.¹⁰⁸ In fact, Steen's plea agreement was admitted into evidence at petitioner's trial as Defense Exhibit No. 4.¹⁰⁹ During petitioner's state habeas corpus hearing, Steen testified that all of his testimony during petitioner's trial had been accurate.¹¹⁰ Petitioner had a full and fair opportunity to confront and examine Steen regarding the terms of Steen's plea agreement during petitioner's state habeas corpus hearing yet petitioner elicited no testimony in that proceeding from Steen about his plea agreement that was not already obvious to all parties at the time of petitioner's trial. Thus, insofar as petitioner implies that the terms of Steen's plea agreement constitute "newly discovered evidence," that contention is refuted by a review of the record from petitioner's trial and state habeas corpus proceeding.

107 S.F. State Habeas Hearing, Volume 11, testimony of Julius Steen, at pp. 5-39.

108 S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 337, 340, 417-18, 421-22, 444, 451-52.

109 S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at p. 440. A copy of Steen's plea agreement appears at S.F. Trial, Volume XXI, at pp. 126-27.

110 S.F. State Habeas Hearing, Volume 11, testimony of Julius Steen, at pp. 30 33.

Insofar as petitioner complains about Steen's refusal to meet with petitioner's federal habeas counsel, that complaint is non sequitur. It is well-settled that prosecution witnesses are under no legal obligation to talk with a criminal defendant's counsel before trial. See Puckett, 176 F.3d at 816; U.S. v. Soape, 169 F.3d 257, 271 n. 9 (5th Cir. 1999). The right of a prosecution witness to be left alone does not vanish once the defendant is convicted.

2. Petitioner's Actual Innocence Claim at the Punishment Phase

The Supreme Court has held that a showing of "actual innocence" is made in connection with the punishment phase of a capital murder trial when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. 333, 346-48 (1992). The Supreme Court explained in Sawyer that this "actual innocence" requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Id. at 347. In Texas, unlike the Louisiana capital sentencing scheme the Supreme Court addressed in Sawyer, the constitutionally-required "eligibility decision" is made at the guilt-innocence phase of trial by virtue of the manner in which Texas law narrowly defines the offense of capital murder. See Johnson v. Texas, 509 U.S. at 362. As stated by the Fifth Circuit, "the special Sawyer-version of the 'miscarriage of justice' exception is limited to assertions of errors of constitutional magnitude occurring at sentencing." Callins v. Johnson, 89 F.3d 210, 214 (5th Cir. 1996). In Sawyer, the Supreme Court clearly intended to focus a reviewing court's attention on the issue of whether a capital defendant could rationally have been sentenced to death rather than simply whether that defendant was guilty of the underlying offense of capital murder. Sawyer, 505 U.S. at 346-48.

Petitioner's claims herein include an assertion that, based on his "newly discovered evidence," he is "actually innocent" of the death penalty. Herrera guides federal habeas review of "actual innocence" claims premised on newly discovered evidence, whether that evidence is exculpatory or mitigating in nature. Thus, a slightly different approach from the one employed in Sawyer is necessary to resolve a claim that a Texas defendant is "actually innocent" of the death penalty based on newly discovered evidence. Employing the principles announced by the Supreme Court in Sawyer v. Whitley in light of the somewhat different Texas capital sentencing scheme, this Court must determine whether, considering petitioner's "newly discovered" mitigating evidence and Texas law applicable to petitioner's 1997 trial, the record now before this Court includes clear and convincing evidence establishing that a rational jury could not have returned answers to petitioner's capital sentencing special issues that mandated a death sentence.

During the punishment phase of petitioner's trial, the jury was called upon to answer two special sentencing issues: first, whether the evidence established beyond a reasonable doubt that there is a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society; and second, whether, taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character and background, and the personal moral culpability of the petitioner, there are sufficient mitigating circumstances, or a sufficient mitigating circumstance, to warrant a sentence of life imprisonment rather than a death sentence.¹¹¹ Petitioner's jury answered the first of these questions affirmatively and the second, negatively.¹¹² The issue now before this Court is whether petitioner has established by clear and convincing evidence that, given his "newly discovered" mitigating evidence, no reasonable juror could have answered both of those two issues in a manner that favored the prosecution.

111 Trial Transcript, Volume II, at pp. 175-77.

112 Id.

As an initial matter, the Court notes that petitioner has failed to demonstrate that any of his purported "newly discovered" evidence was unavailable, through the exercise of due diligence, to either himself or his trial counsel at the time of trial. Petitioner admitted in his state habeas corpus testimony that he was personally aware of the alleged threats made against him by Foster before and during trial. Additionally, petitioner's recantation of his own trial testimony does not constitute "newly discovered" evidence because, by his own admission, petitioner was aware at the time of trial of the information he now claims establishes his "actual innocence." Finally, the record from petitioner's trial establishes that the provisions of Steen's plea agreement were matters well within the knowledge of petitioner's trial counsel at the time of petitioner's trial. In sum, none of the evidence presented by petitioner in support of his "newly discovered evidence" actual innocence claim, whether exhausted or unexhausted, falls within any reasonable construction of the term "newly discovered evidence."

Furthermore, even if this Court were to assume that the evidence relating to Mary Patrick's psychiatric examination on August 15, 1996 constituted "newly discovered evidence," the cryptic notations contained in those records, unaccompanied by any other evidence explaining what Patrick actually told her examining psychiatrist or illuminating the circumstances surrounding Patrick's interview, casts no legitimate doubt on the credibility of Patrick's sworn testimony during petitioner's trial. Even if it did, there is not clear and convincing evidence in the record now before this Court that such additional impeachment of Patrick would have foreclosed a rational jury from answering either of the two capital sentencing special issues in the same manner as did petitioner's jury.

Likewise, even if this Court were to consider as "newly discovered evidence" petitioner's recantation of his own trial testimony along with his assertions that Foster and Dillard threatened him into committing perjury, petitioner still has failed to establish by clear and convincing evidence that no rational jury, presented with this "newly discovered evidence," could have answered the two capital sentencing special issues in the same manner as did petitioner's jury. Petitioner's abject refusal to accept responsibility for any of his criminal conduct, amply demonstrated during petitioner's cross-examination at the punishment phase of his trial, would only have been further emphasized had petitioner claimed at trial, as he did in his state habeas corpus hearing, that he had no played part in the actual shooting of LaHood.

In conclusion, none of petitioner's purportedly "newly discovered evidence" identified in petitioner's pleadings in this Court, whether exhausted or unexhausted, satisfies the standard for establishing "actual innocence" at the punishment phase of a Texas capital murder trial. Therefore, the Court rejects petitioner's actual innocence claims on the merits.

K. Ineffective Assistance Claims

Petitioner also asserts a multi-faceted claim of ineffective assistance complaining, including that that his trial counsel (1) called petitioner to testify at trial, (2) not only failed to object to the admission of evidence of extraneous unadjudicated criminal acts by petitioner but opened the door to the admission of such evidence at the guilt-innocence phase of trial, (3) was absent for significant portions of the voir dire and prosecution's case-in-chief, (4) failed to interview prosecution witnesses prior to trial and failed to investigate the case against petitioner and explore the possibility that someone other than petitioner was the shooter, (5) failed to use a peremptory challenge against venire member Pedraza (6) failed to move to sever petitioner's trial from Kenneth Foster's, (7) failed to request limiting instructions regarding evidence of Foster's extraneous, unadjudicated, criminal acts, (8) operated under an actual conflict of interest arising from simultaneous representation of petitioner and a relative of Foster's, and (9) failed to investigate, develop, and present mitigating evidence showing petitioner's mother's drug abuse, physical abuse of petitioner as a child, and the absence of a positive adult role model in their household when petitioner was growing up.¹¹³ Petitioner also claims a constructive ineffective assistance of counse.

113 Petition, at pp. 55-86. Petitioner did "fairly present" the state habeas court with a multi-faceted claim of ineffective assistance by his trial counsel. State Habeas Transcript, at pp. 18-38. However, the specific allegations of ineffective assistance petitioner included in his pleadings before the state habeas court differ significantly from the specific allegations of ineffective assistance petitioner presented to this Court. More specifically, in his state habeas corpus application, petitioner argued that his trial counsel had rendered ineffective assistance by (1) eliciting damaging testimony regarding petitioner's extraneous offenses, (2) opening the door to the admission of numerous extraneous offenses, (3) failing to request a Montgomery hearing in connection with the extraneous offenses, (4) failing to request a severance due to Foster's extraneous offenses, (5) failing to request limiting instructions regarding Foster's extraneous offenses, (6) "unnecessarily" subjecting petitioner to cross-examination," (7) eliciting testimony regarding petitioner's deferred adjudication for possessing an explosive weapon and, thereby subjecting petitioner to cross-examination regarding same, (8) being absent during significant portions of the voir dire and direct examinations of prosecution witnesses, (9) failing to interview witnesses or to conduct an investigation into the prosecution's case, (10) failing to preserve unspecified errors that occurred during bench conferences for appellate review, and (11) committing errors during jury selection. Id.
Additionally, petitioner presented the state habeas trial court with evidence showing a number of instances of allegedly deficient performance by his trial counsel arising from his trial counsel's (1) repeated late arrivals to court, (2) derogatory comments about petitioner during closing argument, (3) practice of taking cell phone calls during trial, and (4) inappropriate attire. These matters were before the state habeas court by virtue of petitioner's claim for state habeas relief petitioner based upon the "totality" of his trial counsel's performance. State Habeas Transcript, at pp. 34-36. While this Court does not condone trial counsel's behavior, nor the state trial court's apparent acquiescence, petitioner did not present this Court with a similar, broad-based, claim for relief herein asserting that his trial counsel's overall performance was objectively unreasonable.

The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in the case of Strickland v. Washington:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. 668, 687 (1984). In order to establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-91. The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins, 539 U.S. at 523 (noting that the proper analysis focuses on the prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from perspective at the time). It is strongly presumed that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law are virtually unchallengeable. Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) ("A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness."). Counsel is not required to advance every non-frivolous argument nor to investigate every conceivable matter inquiry into which could be classified as non-frivolous. See Neal v. Cain, 141 F.3d 207, 214-15 (5th Cir. 1998) (holding that the petitioner's complaints regarding counsel's failure to raise specific defenses did not satisfy the prejudice prong of Strickland where proposed defenses were without merit); Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) ("Counsel cannot be deficient for failing to press a frivolous point."). A criminal defense counsel is not ineffective for failing to discover evidence about which the defendant knew but withheld from his counsel. Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997). Likewise, the Sixth Amendment does not require that counsel do what is impossible or unethical; if there is no bona fide defense to the charge, counsel is not required to create one. U.S. v. Cronic, 466 U.S. 648, 656 n. 19 (1984).

The proper standard for evaluating counsel's performance under the Sixth Amendment is "reasonably effective assistance." Strickland, 466 U.S. at 687. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. "Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. at 692. In order to establish that he has sustained prejudice, the convicted defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Wiggins, 539 U.S. at 534. The prejudice prong of Strickland focuses on whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair; unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him. Williams v. Taylor, 529 U.S. at 393 n. 17.

1. The Decision to Have Petitioner Testify

In his first assertion of ineffective assistance in this Court, petitioner complains that his trial counsel coerced or tricked petitioner into testifying at trial, thereby subjecting petitioner to devastating cross-examination regarding extraneous offenses and other matters.¹¹⁴ The evidence before the state habeas trial court with regard to this aspect of petitioner's ineffective assistance claim was in conflict. Petitioner testified during his state habeas corpus proceeding that he did not shoot Michael LaHood but that DeWayne Dillard actually shot LaHood. He also testified he gave a statement to Detective Alvear confessing to being the shooter after another detective informed petitioner that the others had identified him as the shooter and that there was a witness. According to petitioner, he never told his lead trial counsel, Reece, that he was not the shooter, but he did tell Reece that he did not wish to testify, and Reece responded by telling petitioner that, if petitioner would take the stand and testify in a manner that showed sincere remorse, Reece would save petitioner's life. Petitioner also testified that he told his co-counsel, Guerrero, that he was not the shooter, but Guerrero construed petitioner's statement as an offer by petitioner to commit perjury, did not take petitioner seriously, and warned petitioner that he must testify in a manner consistent with his statement to police. Finally, petitioner also testified that before, during, and after petitioner's trial, Kenneth Foster and DeWayne Dillard threatened to harm petitioner and his family unless petitioner took the fall for the shooting, and fearing for his family, petitioner testified falsely at his trial that he shot LaHood.¹¹⁵

114 Petition, at pp. 58-59.

115 S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 4-13, 22-25, 27, 31, 33-36, 38-48, 50-56, 63-64, 77.

On cross-examination and re-direct at the state habeas proceeding, petitioner admitted that he received his Miranda warnings before he gave his statement regarding the shooting to police and admitted that no police officer threatened or coerced him into giving his statement identifying himself as the shooter, admitted that his statement to police, although given after Foster and Dillard purportedly threatened him, identified them both as involved in the robberies that preceded the LaHood shooting and implicated them in the LaHood shooting, admitted that he was involved in the robberies that occurred earlier on the night of the LaHood shooting, and admitted that he lied to protect Dillard from prosecution for capital murder. Petitioner also testified that Detective Alvear refused to type a statement consistent with petitioner's initial claim that he had no knowledge of the shooting and that Foster had threatened petitioner in an unsuccessful attempt to prevent petitioner from testifying at petitioner's state habeas corpus hearing.¹¹⁶

116 Id., at pp. 18-19, 29-31, 34-36, 38, 47-48, 64, 72.

Attorney William T. Reece testified during petitioner's state habeas corpus proceeding that petitioner maintained throughout the trial that he was guilty and that he had given police an accurate confession, in that petitioner exited Foster's car to get Patrick's phone number, there was no robbery attempt, and petitioner thought LaHood was pulling a gun on him. Reece also testified that he reviewed the prosecution's file on the case extensively and read all the witness statements contained therein and found that those facts limited the types of defenses Reece felt he could mount on petitioner's behalf. Based on his interviews with petitioner and review of the prosecution's file, Reece testified he had no question in his mind that the case against petitioner would proceed to a punishment phase, his attempts to exclude petitioner's confession and evidence of extraneous offenses through pretrial motions were unsuccessful, his efforts to obtain a severance also failed, he was unable to find any evidence corroborating petitioner's claim that LaHood was armed, and given the evidence and petitioner's confession, there was no defense to the charge of murder but a defense to a charge of capital murder could be presented through petitioner's testimony that there was no robbery attempt. Reece further testified that he told petitioner that he did not have to testify but that if petitioner did choose to testify and the jury thought he was lying, that would hurt him, and in view of the evidence, including the petitioner's confession, Reece believed the best trial strategy at the guilt-innocence phase of trial was to (1) argue that eyewitness testimony is inherently unreliable and attempt to poke holes in Mary Patrick's testimony but, in view of petitioner's confession, not to emphasize Mary Patrick's identification of Dillard as the shooter, (2) try to confuse the jury in order to draw the jury's attention away from petitioner's confession, (3) present petitioner as a candid, remorseful, sympathetic individual, (4) admit petitioner was holding the gun when the fatal shot was fired but deny that any attempted robbery was underway, and (5) attempt to convince the jury, through petitioner's testimony, that the crime was a murder but not a capital murder. In addition, given the fact Reece believed there was a high probability they would proceed to a punishment phase, and the fact that petitioner would be tried with Foster, Reece testified that the trial strategy was to attempt to obtain a life sentence for petitioner at the punishment phase of trial by presenting petitioner at both phases of trial as a candid, sympathetic, remorseful person, confessing up front petitioner's involvement in the other robberies, presenting evidence of petitioner's other criminal conduct early on, so as to prevent the prosecution from surprising the jury at the punishment phase of trial with such evidence, minimizing petitioner's role in the offenses leading up to LaHood's shooting, presenting petitioner's criminal history as significantly less violent than Foster's, and attempting to show that Dillard and Steen were violent criminals, Steen had put petitioner up to a lot of things, and, but for his association with them, petitioner would have been little more than a small-time burglar.¹¹⁷

117 S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at pp. 7-94; Volume 4, testimony of William T. Reece, at pp. 4-106; and Volume 7, testimony of William T. Reece, at pp. 3-35.

Specifically on the question of the voluntariness of petitioner's decision to testify, Reece testified that he met extensively with petitioner, primarily at the courthouse, to discuss trial strategy, there was extensive debate about whether petitioner would testify, and he discussed the pros and cons with petitioner but a final decision to have petitioner testify was not made until after they had seen other witnesses testify during trial. Reece further testified that he went over petitioner's statement with him line-by-line prior to petitioner's testimony at trial, discussed petitioner's taking the stand at length with petitioner and emphasized the necessity of such testimony to both humanize petitioner and put petitioner's confession in proper perspective. Reece hoped that, by being candid early on, they could obtain a favorable result at the punishment phase of trial, and felt that only petitioner's testimony could furnish evidence showing LaHood's shooting had not occurred during a robbery attempt. According to Reece, the decision to have petitioner testify at the guilt-innocence phase of trial was premised on the assumption that petitioner would testify in a manner consistent with his statement to police, petitioner wanted to take the stand to deny that he had attempted to rob LaHood, given the admission in petitioner's statement to police, if petitioner had denied being the shooter, that denial would have harmed petitioner's credibility. The decision to have petitioner testify at the punishment phase of trial was also made after thorough discussion with petitioner, and Reece wanted petitioner to candidly confess to participation in the other robberies the night of the shooting to demonstrate to the jury that the petitioner had "come clean" and was telling the truth about LaHood's shooting not occurring during a robbery. Reece testified that he also told petitioner to focus during his trial testimony and that petitioner did not have to testify, but that if petitioner did testify, and the jury thought petitioner was lying, that fact would likely harm him.¹¹⁸

118 S.F. State Habeas Hearing, testimony of William T. Reece, at pp. 81-82 85-86; Volume 4, testimony of William T. Reece, at pp. 14-15, 18, 86-88, 97-100, 102; Volume 7, testimony of William T. Reece, at pp. 8-9, 27, 29-30.

Petitioner's co-counsel at trial, attorney Jose M. Guerrero, similarly testified during petitioner's state habeas corpus hearing that as a practical matter, petitioner's statement to police limited the defenses available at petitioner's trial, he discussed petitioner's statement with petitioner many times and, petitioner never said it was false, during one jail visit, petitioner suggested that he could say he didn't do the shooting but Guerrero construed that as a less than serious offer by petitioner to commit perjury, and he did not believe petitioner was serious about denying being the shooter. Guerrero also testified that he reminded petitioner that he had given a sworn statement, petitioner was the only person who ever said he was not the shooter, and the only defensive theory available at the guilt-innocence phase of trial was the claim that petitioner thought his life was threatened, but the only source of evidence supporting that theory was petitioner's own testimony. Guerrero further testified that he discussed with Reece the decision to have petitioner testify and ultimately Reece made that decision, and Guerrero discussed the possibility with petitioner and petitioner ultimately testified at trial in a manner consistent with his statement to police.¹¹⁹

119 S.F. State Habeas Hearing, Volume 8, testimony of Jose Guerrero, at pp. 5, 35-39, 61-62, 66-71, 73.

The court-appointed investigator for petitioner's trial counsel, Manuel Alfaro, testified that he read petitioner's statement to police, saw petitioner throughout the course of trial, and discussed the shooting with petitioner, and that petitioner never denied being the shooter or claimed that anyone else had shot LaHood until after petitioner was convicted. Alfaro testified that petitioner told him that his gun went off accidentally when LaHood struck it and that petitioner told him he heard but never saw a weapon in LaHood's hand. Alfaro also testified that he interviewed Foster, who told him that petitioner got out of the car to get Patrick's phone number but that Foster did not see what happened between petitioner and LaHood, petitioner's account of the shooting to Alfaro was consistent with what petitioner had told police in his statement, and he had no reason to doubt petitioner's account of the shooting.¹²⁰

120 S.F. State Habeas Hearing, Volume 8, testimony of Manuel Alfaro, at pp. 87-90, 94-95, 99; Volume 9, testimony of Manuel Alfaro, at pp. 6-8, 14-15, 17-18.

The state habeas trial court found that petitioner's account of the fatal shooting given during his state habeas corpus proceeding lacked credibility, concluded that petitioner had failed to overcome the presumption of reasonably effective assistance, and summarily recommended denial of all of petitioner's ineffective assistance claims.¹²¹

121 State Habeas Transcript, at pp. 241-42. The state habeas trial court made no specific findings or conclusions with regard to whether any of petitioner's ineffective assistance claims satisfied the dual prongs of Strickland. Instead, that court simply concluded that petitioner had failed to overcome the presumption of effective representation and recommended denial of all of petitioner's ineffective assistance claims. This does not affect, however, the deferential standard of review this Court must undertake under the AEDPA.

a. Credibility Determination

Unless petitioner has presented clear and convincing evidence to the contrary, this Court must presume correct any express or implicit factual findings made by the state court in support of its rejection of petitioner's ineffective assistance claim. Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001). The state trial court's lone, express, credibility determination — finding petitioner's testimony before the state habeas court lacked credibility — was reasonable. The state habeas trial court could reasonably have credited the testimony of petitioner's trial counsel and court-appointed investigator (that petitioner consistently admitted that he was the shooter) while disbelieving petitioner's thirteenth-hour assertions that he was not the shooter. Petitioner's belated assertions that Dillard was the shooter were contrary to petitioner's written statement to police, inconsistent with what each of the other three occupants of Foster's vehicle told police, with petitioner's trial testimony, and with what petitioner told his trial counsel and investigator, and unsupported by any evidence beyond petitioner's own recanting testimony. The state habeas court could reasonably have concluded that petitioner's confession, both to police and in his trial testimony, was factually accurate.

Furthermore, given the self-serving nature of petitioner's testimony surrounding the circumstances under which petitioner testified at trial, the state habeas court could also have reasonably found credible the account of how petitioner came to testify at trial offered by petitioner's trial counsel. Significantly, petitioner does not present this Court with any clear and convincing evidence showing that his ultimate decision to testify at trial was involuntary.¹²² Nor does petitioner offer any evidence controverting the testimony of his trial counsel regarding their advice about the necessity of petitioner testifying at trial.

122 Reece and Guerrero both testified that they conveyed to petitioner the necessity of his testifying at trial in order to (1) rebut Steen and Patrick's testimony that petitioner had attempted to rob LaHood and (2) establish that petitioner felt threatened when he approached LaHood. Petitioner did not deny that he was aware of any of this information but testified that attorney Reece promised him that, if petitioner would testify and be remorseful, Reece could save petitioner's life. S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 50 53-54.

b. Counsel's Performance

There was nothing objectively unreasonable about the decision of petitioner's trial counsel to advise petitioner to testify at trial. Petitioner's trial counsel could reasonably have concluded that petitioner's first-hand account of LaHood's fatal shooting was the only source of exculpatory evidence available to petitioner at the guilt-innocence phase of trial. Petitioner has identified for this Court no other source of exculpatory evidence available at the time of petitioner's trial.¹²³

123 In his pleadings before the state habeas trial court and in this Court, petitioner does suggest that, had he succeeded in obtaining a severance of his trial from Kenneth Foster, petitioner would have attempted to call Foster to testify on petitioner's behalf at petitioner's trial. Petitioner, however, failed to present the state habeas court with any evidence showing that Foster would have been willing to testify at petitioner's trial had his trial been severed from petitioner's. Petitioner did not call Foster to testify during the lengthy evidentiary hearing held in petitioner's state habeas corpus proceeding. Furthermore, petitioner does not allege with specificity what favorable testimony Foster might have been able to furnish had he been called to testify at a separate trial of petitioner.
Foster's trial counsel, attorney Cornelius Cox, testified that he never discovered any evidence showing that anyone other than petitioner fatally shot LaHood, petitioner's trial testimony was potentially beneficial to petitioner, in terms of creating the possibility petitioner would be convicted of a lesser-included offense or proving that petitioner acted in self-defense, and he agreed that it was generally not a good trial strategy to deny culpability and then go to the punishment phase of a capital murder trial. S.F. State Habeas Hearing, Volume 12, testimony of Cornelius Cox, at pp. 4-18. As such, there was no evidence before the state habeas court establishing that Foster was available, even if the state trial court had granted a severance, to testify at petitioner's trial in a manner that would have helped petitioner.

Under the circumstances of petitioner's case, there was nothing objectively unreasonable with petitioner's trial counsel advising petitioner that petitioner's testimony was the only available source of evidence showing that the shooting of LaHood was accidental and the only available source of evidence showing that LaHood's shooting did not occur in the course of a robbery attempt, that testimony by petitioner contrary to the information contained in petitioner's written statement to police would likely hurt petitioner's credibility with the jury, or that petitioner's best chance to avoid the death penalty was to convince the jury that petitioner was candid, honest, and sincerely remorseful. Once the state trial court denied petitioner's pretrial motion to suppress petitioner's written statement to police, petitioner's trial counsel were aware that Steen was prepared to testify, in accordance with his statement to police, that petitioner approached LaHood and demanded money immediately before the fatal shooting. They were also aware that Patrick would corroborate that aspect of Steen's testimony. The accuracy and close range of the fatal shot belied a claim that the shooting had been accidental, as did the fact the petitioner and his accomplices had spent the evening before the shooting committing armed robberies of persons they found in vulnerable situations. Further, petitioner's trial counsel had attempted unsuccessfully to exclude petitioner's confession and evidence of the other robberies petitioner had engaged in earlier that night. Therefore, advising petitioner to take the stand at the guilt-innocence phase of trial, offer his account of the fatal shooting of LaHood, be candid about his criminal record, and express remorse for LaHood's death clearly fell within the broad range of objectively reasonable performance by trial counsel.

Likewise, once petitioner was convicted and faced a potential death sentence, the decision to advise petitioner to take the stand at the punishment phase of trial and express remorse for LaHood's death, albeit while continuing to assert that the shooting had been accidental, was objectively reasonable. With an eye toward the punishment phase of trial, petitioner's trial counsel followed a reasonable trial strategy beginning at the guilt-innocence phase of attempting to portray petitioner as the least violent of all the persons who occupied Foster's vehicle on the night of the fatal shooting. Toward this end, they presented evidence showing Steen's extensive criminal record, including his and Dillard's involvement in a separate capital murder, and attempted to contrast petitioner's relatively brief criminal history with Foster's much more extensive record of violent conduct. Petitioner's trial counsel reasonably believed that the best way to secure a life sentence for petitioner was to have petitioner take the stand and apologize for LaHood's death, testify that he was sincerely remorseful for LaHood's death and was not a violent person, and explain that he had found God in prison. By the time petitioner's trial reached the punishment phase, the jury was likely not surprised by most of the prosecution's evidence of petitioner's criminal record because petitioner's trial counsel had preemptively alerted the jury to it during the guilt-innocence phase of trial. Thus, petitioner's trial counsel could reasonably have foreseen little potential downside to petitioner testifying at the punishment phase of trial. There is no evidence before this Court, just as there was no evidence before the state habeas court, establishing that petitioner's trial counsel had any way of anticipating that petitioner would subvert his counsels' trial strategy at the punishment phase of trial by refusing to admit responsibility for any of the crimes for which he had previously been convicted. Under such circumstances, there was nothing objectively unreasonable with petitioner's trial counsel advising petitioner to testify at the punishment phase of trial.

c. No Prejudice

Furthermore, there is no reasonable probability that, but for the failure of petitioner to testify at either or both phases of his capital murder trial, the outcome of either phase would have been any different. In fact, petitioner's testimony furnished the defense with its strongest arguments at both phases of trial. Absent petitioner's testimony, the defense's case would have been significantly weaker at both phases of trial.

Had petitioner not testified at the guilt-innocence phase of trial, petitioner's written statement to police would have been admitted and the testimony of Steen and Patrick would have provided the jury with an uncontradicted, very prosecution-oriented, account of LaHood's shooting. Petitioner's testimony during the guilt-innocence phase of his trial furnished the only substantial evidence controverting Steen's and Patrick's accounts of the fatal shooting. Petitioner was the only witness who testified at either phase of trial that LaHood's shooting had not occurred during the course of an attempted robbery. Had petitioner chosen not to testify at the guilt-innocence phase of trial, the jury would have had before it no evidence, other than petitioner's written statement, from which to conclude that LaHood's shooting either was accidental or occurred other than in the course of an attempted robbery.

Petitioner's trial counsel did present a number of witnesses who testified during the punishment phase of petitioner's trial regarding petitioner's history of childhood abuse, good character traits, and generally non-violent nature. Additionally, petitioner testified that he felt both pain and remorse for LaHood's death, which had been accidental, he knew he had caused his mother pain, he was sympathetic to LaHood's family and apologized for LaHood's death, he was a nonviolent person, and, since his arrest, he had begun reading the Bible and praying and felt closer to God.¹²⁴ Regardless of whether petitioner testified at either phase of his trial, his jury was going to learn the details of petitioner's criminal history at the punishment phase of trial. There was other evidence besides petitioner's testimony before the jury which supported answers to the capital sentencing special issues favorable to the prosecution. This evidence included, petitoner's propensity for future violence and the details of petitioner's other armed robberies on the evening of LaHood's shooting, including the testimony of petitioner's terrified victims. Though petitioner did not acquit himself well before the jury during his punishment phase testimony, considering the other evidence before the jury, there is no reasonable probability that, but for that testimony, the jury would have answered the capital sentencing special issues in a way that gave petitioner a life sentence. The Court finds no prejudice in the decision to have petitioner testify.

124 S.F. Trial, Volume XIX, testimony of Mauriceo Brown, at pp. 243-47.

Therefore, the Court finds petitioner's claim of ineffective assistance as to the decision to have petitioner testify does not meet the standards of Strickland and is therefore without merit.

2. Extraneous Offenses

In a group of five related claims, petitioner argues that his trial counsel rendered ineffective assistance by (1) eliciting testimony regarding extraneous offenses by petitioner, (2) opening the door to the admission of evidence of extraneous bad acts, (3) failing to request a hearing before permitting the introduction of evidence regarding extraneous offenses and acts, (4) failing to request a severance based on Foster's extraneous offenses, and (5) failing to request a limiting instruction regarding Foster's extraneous offenses.¹²⁵

125 Petition, at pp. 59-69. As was the case with petitioner's other ineffective assistance claims, the state habeas trial court made no specific factual findings or legal conclusions concerning same.
Insofar as petitioner attempts to supplement his ineffective assistance claims herein with affidavits from jurors regarding the possible impact on their own subjective deliberations during petitioner's trial of various speculative collections of evidence which might have been before them had petitioner's trial counsel chosen a different trial strategy, those affidavits will not be considered by this Court for any purpose for two, equally compelling, reasons: first, FED.R.EVID. 606(b) specifically excludes such affidavits from evidence in this Court; and second, petitioner has not exhausted available state court remedies with regard to this new evidence and, were this Court to consider them, these affidavits would cast these aspects of petitioner's ineffective assistance claims in a substantially different posture than they were presented to the state habeas court.

a. Petitioner's Extraneous Offense Evidence

Having independently reviewed the record from petitioner's trial and state habeas corpus proceeding, the Court concludes there was nothing objectively unreasonable about the trial strategy adopted by petitioner's trial counsel to not contest the admission of evidence relating to petitioner's extraneous criminal conduct when offered at the guilt-innocence phase of trial. As explained above, petitioner's trial counsel reasonably concluded that, given petitioner's highly inculpatory statement to police and Steen's likely testimony at trial about the shooting (as well as petitioner and Steen's other robberies earlier that same evening), there was a very great likelihood that petitioner's capital murder trial was going to proceed to a punishment phase. In view of the overwhelming evidence of petitioner's guilt, there was nothing objectively unreasonable with petitioner's trial counsel choosing a trial strategy that focused on attempting to gain petitioner a life sentence at the punishment phase of trial.

Petitioner's trial counsel reasonably believed that, by allowing the admission of evidence regarding petitioner's extraneous bad acts and crimes during the guilt-innocence phase of trial, they could defuse the impact of that evidence when it would have otherwise been admitted during the punishment phase of petitioner's trial. In fact, petitioner's trial counsel actually introduced evidence of petitioner's conviction for selling a pipe bomb at the guilt-innocence phase of trial to preemptively defuse the harmful impact of that evidence and to further the trial strategy of convincing the jury the petitioner was "coming clean" about everything early on.¹²⁶ Given the overwhelming evidence of petitioner's guilt, there was nothing objectively unreasonable about this trial strategy. The state trial court denied petitioner's pretrial motion to exclude evidence of the other robberies which petitioner and Steen committed on the night of the LaHood shooting. Petitioner's trial counsel reasonably foresaw that all of the evidence of petitioner's extraneous offenses and unadjudicated criminal conduct was going to be admitted into evidence during the punishment phase of petitioner's capital murder trial. There was nothing objectively unreasonable in attempting to mitigate the negative impact of that evidence by presenting it in a manner that allowed petitioner to argue that he was sincerely remorseful and "coming clean" about his role in LaHood's murder.

126 S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at pp. 52-53 55.

Furthermore, given the overwhelming evidence of petitioner's guilt, there is no reasonable probability that, but for the failure of petitioner's trial counsel to aggressively challenge the admission of evidence regarding petitioner's extraneous offenses and bad acts, the outcome of the guilt-innocence phase of petitioner's trial would have been any different. On the contrary, admission of this evidence was clearly intended to further the trial strategy adopted by petitioner's trial counsel of showing that Steen, Dillard, and Foster were all far more violent than petitioner and that, but for their determined influence, petitioner would have been little more than a small-time burglar.¹²⁷ Because (1) the evidence of petitioner's guilt was overwhelming, (2) the state trial court specifically instructed the jury at the guilt-innocence phase of trial to consider evidence of petitioner's extraneous criminal acts only if it were convinced beyond a reasonable doubt that petitioner actually engaged in such acts, and (3) virtually all of the evidence of petitioner's extraneous offenses and unadjudicated criminal conduct was properly subject to admission at the punishment phase of petitioner's trial, petitioner was not prejudiced within the meaning of Strickland by its admission at the guilt-innocence phase of trial.

127 At least some of the evidence of petitioner's extraneous offenses that petitioner now complains his trial counsel should have fought to exclude at the guilt-innocence phase of trial was, in fact, evidence of other criminal acts involving Steen and Dillard in which petitioner played no role. For instance, during his cross-examination of Steen at the guilt-innocence phase of trial, petitioner's trial counsel elicited admissions by Steen that he and Dillard had engaged in other burglaries of vehicles, as well as the capital murder of a bus driver. S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 362-64. These crimes do not prejudice petitioner.

There is also no reasonable probability that, but for the failure of petitioner's trial counsel to aggressively fight the admission of this same evidence at the guilt-innocence phase of trial, the outcome of the punishment phase of petitioner's trial would have been different. On the contrary, had petitioner's trial counsel successfully prevented the admission of such evidence during the guilt-innocence phase of petitioner's trial, there is more than a reasonably probability the jury would have experienced the negative effects of this "surprise" evidence when the prosecution introduced petitioner's criminal record and unadjudicated criminal acts during the punishment phase of trial. Under those circumstances, eliciting testimony revealing the details of petitioner's criminal history did not "prejudice" petitioner within the meaning of Strickland.

c. Foster's Extraneous Offenses Evidence

Petitioner's trial counsel unsuccessfully attempted to obtain a severance of petitioner's trial from that of Kenneth Foster through a pretrial motion. When that effort failed, petitioner's trial counsel adopted an objectively reasonable trial strategy of attempting to show that Foster, Dillard, and Steen were all much more violent than petitioner and that, but for their determined influence, petitioner would have been a nonviolent burglar. Insofar as petitioner argues before this Court that his trial counsel should have sought a severance at the punishment phase of trial based on the admission of testimony showing Foster was involved in an armed robbery and car-jacking a few nights before the LaHood shooting, petitioner fails to acknowledge that this same testimony also tied petitioner to the same armed robbery and car-jacking.¹²⁸ Under such circumstances, the failure of petitioner's trial counsel to move to sever the trial at that juncture was objectively reasonable because such a motion would have been legally frivolous.

128 More specifically, at the punishment phase of petitioner's trial, Julius Steen testified regarding an armed robbery and car-jacking that he, Foster, Dillard, and petitioner committed a day or two before the LaHood shooting, in which Dillard and petitioner approached the victim late at night, brandished handguns, and fled the scene in the victim's Mercedes and with the victim's cell phone. S.F. Trial, Volume XIX, testimony of Julius Charles Steen, at pp. 122-31.

The state trial court repeatedly admonished the jury at both phases of trial to consider the evidence of Foster's criminal conduct only insofar as it related to Foster.¹²⁹ The state trial court also specifically instructed the jury at the guilt-innocence phase of trial to disregard Foster's confession when deliberating on the issue of the petitioner's guilt or innocence.¹³⁰ Finally, in its punishment phase jury instructions, the state trial court focused the jury's attention on the evidence relating to the circumstances of the offense and the petitioner's background and character.¹³¹ Under such circumstances, there was nothing objectively unreasonable in the failure of petitioner's trial counsel to request additional limiting jury instructions concerning Foster's extraneous criminal conduct.

129 See S.F. Trial, Volume XVIII, at Pp. 618, 655, 675; Volume XIX, at p. 13.

130

In this case the alleged confession of Kenneth Foster was admitted in evidence. You are instructed that such evidence was admitted solely for the purpose of serving as evidence in the case of Kenneth Foster, a co-defendant of the defendant, Mauriceo Mashawn Brown, herein, if it does serve such evidence, and such confession cannot be considered as any evidence against the defendant Mauriceo Mashawn Brown, or in any way to connect the defendant with the alleged offense. You are instructed that you must not consider such alleged confession of Kenneth Foster, if any, in any way as any evidence whatsoever against the defendant, Mauriceo Mashawn Brown, and you will restrict your consideration of such confession, if any, to the determination of the guilt or innocence of Kenneth Foster, if you do consider it, and not to Mauriceo Mashawn Brown.

Trial Transcript, Volume II, at p. 155.

131 Trial Transcript, Volume II, at pp. 170-73.

The evidence elicited during petitioner's trial concerning Foster's extraneous offenses furthered petitioner's overarching trial strategy of showing that Foster was far more violent than petitioner. There was substantial evidence showing petitioner's personal involvement in multiple violent criminal acts before the fatal shooting of LaHood. The state trial court repeatedly instructed the jury to consider Foster's confession and other evidence offered concerning Foster's criminal conduct only on the issue of Foster's guilt and instructed the jury to disregard evidence relating to Foster's extraneous criminal conduct when deliberating on the issue of petitioner's guilt. Juries are presumed to follow the trial court's instructions. Penry II, 532 U.S. at 799. There is no reasonable probability that, but for the failure of petitioner's trial counsel to move to sever petitioner's trial from Foster's or to seek additional limiting instructions regarding evidence of Foster's extraneous criminal conduct, the outcome of either phase of petitioner's trial would have been different. Therefore, the Court finds that the decision to focus on Foster's conduct was reasonable and did not prejudice petitioner. Thus, this decision did not constitute ineffective assistance.

3. Absences of Lead Counsel

Petitioner also complains that Reece was absent during "significant portions" of the voir dire and the prosecution's case-in-chief.¹³² Having independently reviewed the record from both petitioner's trial and state habeas corpus proceeding, the Court finds petitioner did not present the state habeas court with any evidence showing that petitioner was ever deprived of the assistance of at least one attorney during any portion of the voir dire or petitioner's trial on the merits. While Reece was admittedly absent from portions of the voir dire,¹³³ there is no dispute in the record that petitioner was represented throughout the entire voir dire by attorney Guerrero.¹³⁴

132 Petition, at pp. 69-71. The state habeas trial court made the following factual finding with regard to this aspect of petitioner's ineffective assistance claim: "It seems to be undisputed that from time to time, only one attorney was present at his trial, but there is no contention that he was ever without counsel to represent him at any point in the trial." State Habeas Transcript, at p. 240.

133 Reece testified during petitioner's state habeas corpus hearing that (1) he worked as a team with Guerrero, (2) he was present for approximately 95% of the voir dire, (3) he consulted with petitioner regarding the use of peremptory challenges, and (4) he and Guerrero consulted with Foster's attorney regarding their use of peremptory challenges. S.F. State Habeas hearing, Volume 3, testimony of William T. Reece, at pp. 22-23, 37, 42-44; Volume 7, testimony of William T. Reece, at pp. 18-20.

134 Attorney Guerrero testified without contradiction during petitioner's state habeas hearing that he handled matters during those portions of voir dire when Reece was absent. S.F. State Habeas Hearing, Volume 8, testimony of Jose M. Guerrero, at p. 8.

The only portion of the prosecution's case-in-chief during which petitioner complains that Reece was absent was the direct examination of prosecution witness Mary Patrick. It is undisputed in the record now before this Court, as was also true of the record before the state habeas court, that Guerrero was present at all times throughout the prosecution's examination of Mary Patrick. Reece cross-examined Patrick extensively at the guilt-innocence phase of petitioner's trial, as did counsel for Foster. Reece elicited admissions from Patrick¹³⁵ during cross-examination, including that she had consumed alcohol the night of the shooting, identified Dillard as the shooter at the show-up shortly after the shooting, based primarily on his clothing, had only seen the shooter's eyes and part of his face visible above a bandana, and nothing in her statement to police the night of the shooting indicates the shooter wore a bandana across his face.¹³⁶ Petitioner has identified no additional information beneficial to petitioner which he claims Reece should have elicited from Patrick on cross-examination. Under such circumstances, petitioner has failed to allege any specific facts showing that his defense team's cross-examination of Patrick was objectively unreasonable. Additionally, there is no reasonable probability that, but for Reece's absence during portions of voir dire, the outcome of either portion of petitioner's trial would have been any different. Thus, there was no prejudice to petitioner regarding Reece's absence. While the Court does not condone Reece's decision to absent himself from the courtroom during Patrick's direct testimony, nor the state court's apparent acquiescence in this behavior, petitioner' complaints about Reece's absences fail to satisfy either prong of Strickland. 4. Failure to Interview Witnesses and Investigate

135 S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at pp. 56-58, 60, 62-63, 65, 69-71, 74, 76-77; Volume 4, at p. 13; Volume 7, at pp. 26-27. Guerrero testified that he took notes throughout Patrick's direct examination and a sore throat may have precluded him from cross-examining her. S.F. State Habeas Hearing, Volume 8, testimony of Jose M. Guerrero, at p. 41.

136 S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 517-48.

Petitioner argues that his trial counsel should have interviewed prosecution witnesses prior to trial and investigated the possibility that petitioner was not the person who fatally shot LaHood.¹³⁷ It is clearly established federal law that counsel have a duty to make reasonable investigations or to make reasonable decisions that make particular investigations unnecessary and that a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel's judgments. Wiggins, 539 U.S. at 521-22; Strickland, 466 U.S. at 691. Furthermore, the reasonableness of counsel's actions must be evaluated in the context of the defendant's own statements and actions. Strickland, 466 U.S. at 691.

137 Petition, at pp. 72-74.

a. Failure to Investigate

While it was undisputed during petitioner's state habeas corpus proceeding that neither of petitioner's trial counsel nor defense counsel's court-appointed investigator interviewed any prosecution witnesses prior to trial, it was equally undisputed during that same proceeding that both of petitioner's trial counsel reviewed all of the witness statements in the prosecution's case file.¹³⁸ Petitioner has identified no trial testimony given by any prosecution witness that was a surprise to either of his trial counsel. Nor has petitioner identified any potentially exculpatory, mitigating, or impeachment evidence that could have been discovered and developed had his defense team personally interviewed all the prosecution witnesses. It is undisputed that petitioner's investigator attempted to make contact with prosecution witness Mary Patrick prior to trial but was unable, despite the exercise of diligence, to interview her. While petitioner did present the state habeas court with evidence showing that one prosecution witness might have been willing to speak with petitioner's defense team prior to trial, another prosecution witness indicated a reticence to do so.¹³⁹ Petitioner offered the state habeas court no evidence showing that Mary Patrick would have submitted to an interview by petitioner's defense team prior to trial had they been able to locate her.

138 Reece stated during his testimony in petitioner's state habeas corpus proceeding that while he did not interview any prosecution witnesses prior to trial, he read all the witness statements contained in the prosecution's case file, met extensively with petitioner, who repeatedly admitted that he had attempted to rob and accidentally shot LaHood, and went over petitioner's statement with him line-by-line. Reece further testified that he discussed with petitioner taking the stand at length and advised him of the advantages and possible pitfalls of that strategy and petitioner chose to take the stand to deny that he had attempted to rob LaHood and to assert the shooting had been accidental. Reece also testified that petitioner never informed him that Dillard was the real shooter, but, on the contrary, petitioner always emphasized to Reece that he had exited Foster's vehicle to speak with Mary Patrick. S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at p. 17, 19-20, 45, 50, 56-58, 66, 80-82, 86; Volume 4, testimony of William T. Reece, at pp. 18, 84-85, 99-100; Volume 7, testimony of William T. Reece, at pp. 8-9, 19, 24-25, 29-30, 33-35.
Guerrero testified that he reviewed the prosecution's case file several times, read all witness statements contained therein, reviewed the autopsy report, visited the crime scene, and discussed the case with petitioner many times, including going over petitioner's statement with petitioner, but did not interview any prosecution witnesses, in part, because their investigator was unable to locate Mary Patrick. Id. Volume 8, testimony of Jose M. Guerrero, at pp. 5, 12-15, 24, 35-37, 39, 60. Guerrero also testified that he discussed petitioner's statement with petitioner many times and petitioner never indicated that it was false, but instead petitioner indicated that his gun had accidentally fired when he thought LaHood pulled a gun. Additionally, Guerrero testified that on one occasion, petitioner suggested a willingness to testify that he was not the shooter, but Guerrero interpreted that suggestion as less than serious and reminded petitioner that he had given police a sworn statement, and he discussed the matter with petitioner and petitioner testified at trial in a manner consistent with petitioner's statement to police. Id. at pp. 35-37, 44, 61-62, 70-71, 73.
Petitioner's court-appointed investigator also testified during petitioner's state habeas corpus hearing that he interviewed petitioner, Foster, and another person named Jackie Sellers who was not called to testify at petitioner's trial and he attempted to locate and interview Mary Patrick but was unsuccessful in both endeavors. Id. Volume 8, testimony of Manuel Alfaro, at pp. 86-88, 98-99, 107.

139 A San Antonio Police Officer who observed Mary Patrick shortly after LaHood's shooting, and did not believe she was intoxicated, testified that he would have been willing to speak with petitioner's counsel before trial. S.F. State Habeas Hearing, Volume 9, testimony of David Stovall, at pp. 48-50. However, a San Antonio Police Detective who spoke with Patrick at the crime scene and later interviewed Foster, indicated that he would not have spoken with petitioner's counsel had he been contacted prior to trial. Id. Volume 9, testimony of Leslie Wayne Spiess, at pp. 66, 68-71, 73, 79, 90.

It is undisputed that, during their trial preparations, petitioner's trial counsel relied on their review of the witness statements given by prosecution witness, rather than interviews with these same witnesses. However, it is likewise undisputed that petitioner's defense team undertook extensive pretrial investigation by reviewing the prosecution's case file, reading all witness statements, interviewing petitioner, examining the crime scene, and attempting, albeit unsuccessfully to locate and interview Mary Patrick. Moreover, petitioner failed to present the state habeas court with any evidence showing that any critical prosecution witnesses, such as Patrick or Steen, would have been willing to submit to an interview by petitioner's defense team prior to trial. See Soape, 169 F.3d at 271 n. 9 (recognizing that a government witness who does not wish to speak to or be interviewed by the defense prior to trial may not be required to do so).

b. Failure to Search for the "Real" Shooter

Petitioner also argues that his trial counsel should have investigated the possibility that someone other than petitioner fatally shot LaHood. In support of this assertion, petitioner offers only his own testimony during his state habeas corpus proceeding that Dillard was the actual shooter, petitioner's statement to police and trial testimony regarding the circumstances of the shooting were inaccurate, and petitioner gave that perjured testimony because Foster and Dillard had threatened petitioner and his family.¹⁴⁰ However, by his own admission, petitioner never told attorney Reece that he was not the shooter.¹⁴¹ Furthermore, petitioner also admitted in his testimony during his state habeas corpus proceeding that, on the one occasion when he did suggest to attorney Guerrero that he might be willing to testify that he had not shot LaHood, Guerrero's reaction revealed that Guerrero believed petitioner was joking.¹⁴² It is undisputed that petitioner consistently advised all three members of his defense team that his shooting of LaHood had been accidental and not the result of a botched robbery attempt. Thus, petitioner admits that he never effectively communicated to either of his trial counsel his current version of the shooting — his claim that Dillard was the "real" shooter.

140 S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 4-13, 17, 22-25, 27, 31, 34-36, 41-42.

141 Petitioner admitted during his testimony in his state habeas proceeding that he never told attorney Reece that he was not the shooter and he testified at trial in a manner consistent with what he had told Reece about the shooting because Reece informed him that, if he took the stand and was remorseful, Reece could save his life. Id. at pp. 10-13 50-56.

142 Id. at pp. 10-13; S.F. State Habeas Hearing, Volume 8, testimony of Jose M. Guerrero, at pp. 35-39, 42, 61-62, 70-73.

Given (1) the inability of petitioner's defense team to locate and interview Patrick prior to trial, which efforts petitioner failed to show were less than diligent, (2) petitioner's admissions that he failed to communicate to his defense team that he was not the shooter, and (3) petitioner's failure to identify any source of testimony, other than himself or Patrick, from whom his defense counsel might have elicited evidence showing Dillard to be the shooter, there was nothing objectively unreasonable about the failure of petitioner's defense team to undertake efforts to find additional evidence identifying Dillard as the shooter. When a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. Strickland, 466 U.S. at 691.

Additionally, petitioner presented the state habeas court with no evidence showing that, had his defense team personally interviewed any of the prosecution witnesses prior to trial, any of those witness could or would have furnished petitioner's trial counsel with any helpful information not otherwise included in those same witnesses' statements contained in the prosecution's case file. In order to satisfy the prejudice prong of Strickland, however, such a claim premised on counsel's failure to investigate the facts surrounding a case or to discover and develop additional evidence must include a showing of what the investigation would have revealed, what evidence would have resulted from that investigation, and how such would have altered the outcome of the case. Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998).

Petitioner did not allege any specific facts, much less present any evidence, before the state habeas court showing that any of the non-interviewed prosecution witnesses could have furnished testimony at trial identifying Dillard as the "real" shooter. At trial, Patrick recanted her identification of Dillard, admitted that she had only seen the shooter's eyes and a very small portion of his face and had based her identification at the show-up on her recollection of the shooter's clothing, and admitted that she was very upset immediately after the shooting and that the area where the shooting occurred was dark.¹⁴³

143 S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 513-15 536-40. Patrick also admitted under cross-examination by attorney Reece that her statement to police included no mention of a bandana being worn across the shooter's face. Id. at p. 545.

Furthermore, there was no evidence before the state habeas court suggesting that Patrick would have been willing to identify Dillard as the shooter at trial if petitioner's defense team could have located and interviewed her prior to trial. Thus, there was no evidence before the state habeas court showing that any witness, other than petitioner, was available at the time of petitioner's trial who could identify Dillard as the shooter. In fact, even assuming that petitioner could surmount the credibility barrier posed by his contradictory statement to police, trial testimony consistent with that given by petitioner during his state habeas corpus hearing would have furnished the prosecution with more evidence of petitioner's guilt, under the law of parties, than the prosecution possessed at trial with regard to petitioner's co-defendant Foster. In his testimony during his state habeas corpus proceeding, petitioner admitted that (1) he and the others had engaged in several armed robberies on the evening prior to LaHood's shooting,¹⁴⁴ (2) he was present and witnessed LaHood's fatal shooting by Dillard,¹⁴⁵ (3) shortly thereafter, he, Foster, and Dillard created a "cover" story which identified petitioner as the shooter after Dillard threatened him with a gun,¹⁴⁶ and (4) after his arrest, he gave a "false" statement to police and testified falsely at trial identifying himself as the shooter for the express purpose of protecting Dillard from prosecution.¹⁴⁷ Petitioner was the only witness at trial who asserted that LaHood's fatal shooting had not occurred during a robbery attempt. Thus, while identifying Dillard as the shooter, petitioner's testimony before his state habeas court both implicated petitioner as a co-conspirator in a series of armed robberies that, from all objective appearances, included the fatal shooting of LaHood and would have foreclosed petitioner from arguing that LaHood's shooting had not occurred during the course of a robbery attempt.

144 S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 18-19, 33, 41-42, 46, 56.

145 Id. at pp. 17, 21-25, 33.

146 Id. at pp. 6-9, 27, 31, 34-36, 38, 40, 42, 46-48, 63-64, 70, 77.

147 Id. at pp. 33-36, 39-42, 47-48, 56.

Presenting such a defense at the guilt-innocence phase of trial would have greatly diminished petitioner's ability to convince the jury at the punishment phase of trial that he was sincerely remorseful for LaHood's death. If petitioner had testified during the guilt-innocence phase of his trial in the same manner that he testified during his state habeas corpus proceeding, petitioner would have been required to admit to the jury that he had made false statements of fact in his sworn statement to police. That admission would likely have undermined petitioner's credibility and, thereby, undermined petitioner's efforts to convince the jury that he was sincerely remorseful about LaHood's death. As petitioner's trial counsel noted during his testimony in petitioner's state habeas hearing, as a practical matter, it is difficult for a defendant to convince a jury that he is sincerely remorseful after unsuccessfully trying to convince the same jury that he did not commit the offense.¹⁴⁸

148 S.F. State Habeas Hearing, Volume 4, testimony of William T. Reece, at p. 102.

Even if petitioner had succeeded in convincing his sentencing jury that Dillard was the shooter, the jury would have still had before it substantial evidence establishing petitioner's propensity for future violence, as well as petitioner's admission that he had falsely sworn to police that he was the shooter. It is extremely doubtful petitioner's claim that he had sworn falsely earlier would have aided him in convincing the jury at the punishment phase of trial that he was sincerely remorseful for his offense. Instead, testimony by petitioner at the guilt-innocence phase of trial identifying Dillard as the shooter would have supported the prosecution's argument at the punishment phase of trial that petitioner had consistently refused to accept responsibility for his criminal conduct.

Thus, there is no reasonable probability that, but for the failure of petitioner's trial counsel to interview prosecution witness prior to trial and to present a defense based on Mary Patrick's and petitioner's identifications of Dillard as the shooter, the outcome of either phase of petitioner's trial would have been different. Therefore, the Court finds no merit in petitioner's claim regarding the failure to investigate the existence of the "real" shooter.

5. Failure to Strike Venire Member Pedraza

As another assertion of ineffective assistance, petitioner complains that his counsel failed to exercise the final peremptory challenge to strike venire member Santiago Jose Pedraza.¹⁴⁹ During his voir dire interrogation, in response to questions by the judge and prosecution, venire member Pedraza testified that he did not know the victim personally but his sons had attended Central Catholic High School at the same time as LaHood but believed he could put that fact aside and render a verdict based solely on the evidence and that he had been the victim of a criminal assault, in which he lost an eye, but he believed he could also set aside that fact, as well as what he had heard and read about the case, and render a verdict based solely on the evidence presented at trial.¹⁵⁰ In response to questions from petitioner's counsel, Pedraza admitted that he had written on his juror questionnaire that he would be biased against the defendants because his son had known LaHood and he would be biased against petitioner. At that point, both defendants challenged Pedraza for cause. However, Pedraza explained to the trial judge that his bias was against the violence that happened and not directed toward the defendants personally. Based on that explanation, the state trial judge denied the challenge for cause.¹⁵¹

149 Petition, at pp. 74-82.

150 S.F. Trial, Volume XV, voir dire examination of Santiago Jose Pedraza, at pp. 1751-71.

151 Id. at p. 1772-76.

Petitioner's counsel made a second challenge for cause based on Pedraza's statement that he would hold a defendant criminally responsible for not stopping an accomplice from committing murder.¹⁵² However, under questioning by the trial judge, Pedraza explained that his statement assumed that the defendant anticipated the accomplice would commit murder. Based on that explanation, the trial judge overruled petitioner's second challenge for cause.¹⁵³ Both defendants also joined in a challenge for cause based on a further statement by Pedraza that he believed police officers always tell the truth. The trial judge overruled this challenge after eliciting a commitment from Pedraza to set aside his personal bias and return a verdict based solely on the evidence and law.¹⁵⁴ Under further examination by counsel for both defendants, Pedraza repeatedly stated that he would hold the prosecution to its burden of proof, he would not assume that a police officer, as opposed to any other witness who had taken an oath to tell the truth, would testify truthfully because of their position, and he could set aside his personal views and render a verdict on the evidence. Foster's counsel again sought to challenge Pedraza for cause, but was overruled.¹⁵⁵

152 Id. at pp. 1776-83.

153 Id. at pp. 1784-85.

154 Id. at pp. 1785-87.

155 Id. at p. 1808-09.

During petitioner's state habeas corpus proceeding, both counsel for Foster and petitioner's co-counsel testified that they felt attorney Reece should have exercised petitioner's lone remaining peremptory challenge to strike Pedraza.¹⁵⁶ Petitioner testified during his state habeas proceeding that he urged Reece to strike Pedraza and two other members of the jury venire but Reece rejected all of those requests.¹⁵⁷ Reece testified that he reviewed all the juror questionnaires prior to voir dire questioning of each venire member, felt Pedraza "did a complete turn-around" during voir dire, believed Pedraza would be strong-minded and would not go along with the crowd, and after looking ahead at the potential jurors who followed Pedraza, he believed that if they struck Pedraza, they might wind up with an even less sympathetic juror from "rather a dismal flight of jurors;" therefore, after consulting with Guerrero, he decided not to honor Foster's trial counsel's request that he strike Pedraza.¹⁵⁸

156 Guerrero testified during petitioner's state habeas corpus hearing that he felt Reece should have struck Pedraza but he deferred to Reece on the subject. S.F. State Habeas Hearing, Volume 8, testimony of Jose M. Guerrero, at pp. 9-11 52. Lead counsel for Foster also testified that Reece refused his request that petitioner use a peremptory strike against Pedraza. Id. Volume 11, testimony of Cornelius Cox, at pp. 55-57.

157 S.F. State Habeas Hearing, Volume 13, testimony of Mauriceo Brown, at pp. 49-50.

158 S.F. State Habeas Hearing, testimony of William T. Reece, Volume 3, at pp. 40-42; Volume 4, at pp. 40; Volume 7, at pp. 19-20.

There is nothing unreasonable or professionally deficient in a defense counsel's informed decision to rely upon his own reading of venire members' verbal answers, body language, and overall demeanor during the prosecution's voir dire examination. Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989). "The trial lawyer must draw upon his own insights and empathetic abilities." Id. Reece testified that he felt that Pedraza had shown a great deal of independence during his voir dire examination and was unlikely to be swayed by the opinions of others, and striking Pedraza might very well result in a far less sympathetic juror sitting on the jury. Petitioner presented the state habeas court with no evidence showing there was anything objectively unreasonable with Reece's assessment of the members of the jury venire following Pedraza as potentially less sympathetic toward the defense than Pedraza. Under such circumstances, the state habeas court reasonably concluded that petitioner failed to overcome the presumption of reasonableness that attaches to a trial counsel's decisions regarding the exercise of peremptory challenges. See Mayo v. Lynaugh, 882 F.2d 134, 138 (5th Cir. 1989) (holding a trial counsel's decision not to employ a peremptory challenge to a venire member who gave conflicting testimony during voir dire was objectively reasonable given the venire member's explanation that his earlier testimony had been based on a misunderstanding of the terms used in those earlier questions).

6. Procedural Default on Remaining Unexhausted Claims of Ineffective Assistance

a. Failure to Exhaust

Respondent correctly points out that petitioner has never presented any state court with petitioner's complaints that trial counsel (1) operated under an actual conflict of interest arising from simultaneous representation of petitioner and a relative of Kenneth Foster and (2) failed to investigate, develop, and present mitigating evidence showing petitioner's mother's drug abuse, physical abuse of petitioner as a child, or the absence of a positive adult role model in their household when petitioner was growing up.¹⁵⁹ Nothing in petitioner's state habeas corpus pleadings furnished the state habeas court with any notice that petitioner was asserting claims of ineffective assistance based on either of these two theories. At no time during his state habeas corpus proceeding did petitioner request leave to amend his pleadings to add these two, additional, theories of ineffective assistance as claims for relief.

159 These aspects of petitioner's multi-faceted ineffective assistance claim are set forth as subsections J and K under petitioner's fifth claim for federal habeas relief herein. Petition at pp. 82-86.

Petitioner did request findings of fact from the state habeas trial court which could possibly relate to petitioner's current federal "conflict of interest" ineffective assistance claim. Nonetheless, petitioner made no request to the state habeas court for any conclusions of law regarding such a complaint. Likewise, petitioner made no request to the state habeas court for any factual findings or legal conclusions supporting his complaint that his trial counsel should have developed and presented additional mitigating evidence. Significantly, petitioner never asked the state habeas court to make any findings or conclusions to the effect that petitioner's federal constitutional rights were violated by virtue of his lead trial counsel's simultaneous representation of both petitioner and Kenneth Foster's relative. Under such circumstances, petitioner failed to "fairly present" his conflict of interest ineffective assistance claim to the state habeas court and has, therefore, procedurally defaulted on this aspect of his ineffective assistance claims herein.

Petitioner introduced evidence during his state habeas corpus proceeding establishing that (1) Reece, or possibly another attorney associated with Reece, signed a notice of appearance as counsel of record for Kenneth Foster, Sr. on or about October 31, 1996 in a proceeding pending in Bexar County Court-at-Law No. 9, (2) Reece never had any discussions with Kenneth Foster, Sr. regarding petitioner's case, (3) Reece had previously represented Lawrence Foster, the uncle of petitioner's co-defendant, and knew both the father and grandfather of petitioner's co-defendant and (4) Reece did not recall whether he personally represented Kenneth Foster's father, Kenneth Foster, Sr., in the state criminal proceeding referenced in the notice of appearance in question.¹⁶⁰ The fact that petitioner introduced testimony during his state habeas corpus hearing which might have supported one of these two theories of ineffective assistance was insufficient, standing alone, to "fairly present" the state habeas court with either of those theories as independent federal claims.¹⁶¹ In the absence of a state habeas pleading requesting a conclusion of law that an actual "conflict of interest" arose during petitioner's trial, the introduction of evidence during petitioner's state habeas corpus proceeding which merely raised a speculative possibility that a potential conflict of interest might have arisen did not "fairly present" the state habeas court with the same actual conflict of interest claim petitioner presents to this Court.¹⁶² Accordingly, petitioner has procedurally defaulted on this aspect of his ineffective assistance claims.

160 S.F. State Habeas Hearing, Volume 3, testimony of William T. Reece, at pp. 90-94; Volume 4, testimony of William T. Reece, at pp. 4-10. The Notice of Appearance in question was admitted into evidence petitioner's state habeas corpus proceeding as Defense Exhibit No. 8. Id.; S.F. State Habeas Hearing, Volume 18, at p. 26.

161 See Baldwin v. Reese, 124 S.Ct. at 1351 (holding a petitioner failed to fairly present the state courts with a claim for federal habeas relief, despite presenting the factual basis for same, where the petitioner's state court pleadings did not cite any case that might have alerted the state court to the alleged federal nature of the claim and the state petition did not contain a factual description supporting the claim); Gray v. Netherland, 518 U.S. at 163-64 (holding that, for purposes of exhausting state remedies, merely presenting the state court with the facts supporting a federal claim, without some reference in an operative state habeas pleading to a specific federal constitutional guarantee, does not present the state court with the "substance" of a specific federal claim).

162 Under Strickland, "prejudice" is presumed where an actual conflict of interest adversely affected counsel's performance. See Strickland v. Washington, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Fifth Circuit has limited the application of the Cuyler exception to the dual prongs of Strickland to instances of multiple representation, either concurrently or sequentially. See Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) ("An 'actual conflict' exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client."). However, petitioner's allegations that his lead trial counsel simultaneously represented a relative of petitioner's co-defendant in a wholly unrelated criminal matter, standing alone, does not satisfy the requirement for a showing of an actual conflict of interest.

The procedural default doctrine bars federal habeas review of the unexhausted aspects of petitioner's ineffective assistance claim. Where there is a procedural default, the petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan, 526 U.S. at 848. Here, petitioner's procedural default arises by virtue of his failure to "fairly present" either of these assertions of ineffective assistance to the Texas Court of Criminal Appeals, on either direct appeal or in his state habeas corpus application. Texas law prohibits the filing of a successive state habeas corpus application except in rare circumstances inapplicable to any of petitioner's claims. See Bagwell v. Dretke, 372 F.3d 748, 756 (5th Cir. 2004), cert. denied, 2004 WL 2073275 (Nov. 15, 2004).¹⁶³ The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas capital murder defendant is barred under the procedural default doctrine. See, e.g., Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir. 1998).

163 Under Texas law successive state habeas applications except where the claim could not have been presented in the initial state habeas application because the factual or legal basis of the claim was unavailable at the time, and either (1) the petitioner shows by a preponderance of the evidence that, but for the constitutional violation, he would not have been convicted, or (2) the petitioner shows by clear and convincing evidence that, but for the constitutional violation, no rational jury would have answered in the state's favor on one or more of the capital sentencing special issues. TEX. CODE CRIM. PROC. ANN., art. 11.071, § 5(a), (Vernon Supp. 2004).

b. Exceptions Inapplicable

The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show cause and actual prejudice for his default or that failure to address the merits of his procedurally defaulted claim will work a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989). To establish "cause," a petitioner must show either that some objective external factor impeded the defense counsel's ability to comply with the state's procedural rules or that petitioner's trial counsel rendered ineffective assistance. Coleman, 501 U.S. at 753; Matchett v. Dretke, 380 F.3d 844, 848-49. While a showing of ineffective assistance can satisfy the "cause" prong of the "cause and actual prejudice" exception to the procedural default doctrine, as explained above, petitioner's other assertions of ineffective assistance lack merit.

In order to satisfy the "miscarriage of justice" test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer, 505 U.S. at 335-36; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). To satisfy the "factual innocence" standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. Sawyer, 505 U.S. at 335-40. The "factual innocence" test, therefore, requires the Court to give consideration to the all of the evidence now available on the issue of the petitioner's guilt or innocence. The defendant must demonstrate, therefore, that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Schlup, 513 U.S. at 327-28. Petitioner has alleged no specific facts satisfying this "factual innocence" standard and is not entitled to relief from his procedural defaults under the fundamental miscarriage of justice exception to the procedural default doctrine.

Therefore, petitioner has procedurally defaulted on the aspects of his ineffective assistance claim relating to a conflict of interest as to Reece's representation of both petitioner and Foster, and the failure to develop and present additional mitigating evidence. Petitioner has not satisfied either of the exceptions to the procedural default doctrine and is therefore not entitled to relief.

7. Constructive Ineffective Assistance Claim

Petitioner's final argument as to ineffective assistance is that the alleged deficiencies in his trial counsel's performance outlined above amounted to a failure to subject the prosecution's case to meaningful adversarial testing and, therefore, entitles petitioner to a presumption of prejudice pursuant to the Supreme Court's holding in U.S. v. Cronic, 466 U.S. 648 (1984).¹⁶⁴ Petitioner's contentions, however are foreclosed the Supreme Court's holding in Bell v. Cone, 535 U.S. 685 (2002). There, the Supreme Court held that the presumption of prejudice urged by petitioner applies only in three situations, none of which occurred during petitioner's trial. Specifically, the Supreme Court held in Bell that the Cronic presumption of prejudice applies only when either (1) there was a complete denial of counsel, such as when the accused was denied the presence of counsel at a critical stage; (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; or (3) counsel was called upon to render assistance under circumstances where competent counsel very likely could not. Id. at 695-96 (citing Cronic, 466 U.S. at 659-96). The Supreme Court's opinion in Bell emphasized that routine complaints about the performance of defense counsel at various stages of a trial do not fall into the second of the foregoing categories of exceptional circumstances warranting a presumption of prejudice under Cronic. Id. at 696-98.

164 Petition, at pp. 87-88. Petitioner "fairly presented" presented the state habeas court with an abbreviated version of the same "constructive" ineffective assistance claim he asserts in this court. State Habeas Transcript, at pp. 37-38. The Texas Court of Criminal Appeals implicitly rejected this suggestion, concluding that all of petitioner's ineffective assistance claims had to be analyzed under the dual prongs of Strickland. State Habeas Transcript, at pp. 174-78.

Petitioner's complaints do not fall into any of the three categories of cases identified by the Supreme Court in Bell. Thus, the state habeas court properly required petitioner to satisfy the dual prongs of Strickland in order to prevail on his ineffective assistance claims, including his constructive ineffective assistance claim. The state habeas court reasonably concluded that none of petitioner's ineffective assistance claims could satisfy the dual prongs of Strickland. This Court also independently concludes that none of petitioner's properly exhausted ineffective assistance claims herein satisfy either prong of Strickland.

L. Denial of Severance

Finally, petitioner argues that the trial court's denial of petitioner's motion to sever his trial from Kenneth Foster's deprived petitioner of his Sixth Amendment right to confront witnesses against him and that this denial also deprived him of his Eighth Amendment right to an individualized capital sentencing proceeding.¹⁶⁵

1. Failure to Exhaust

165 Petition, at pp. 46-54.

Respondent correctly points out that, while petitioner did assert a claim in his state habeas corpus proceeding challenging the trial court's denial of petitioner's motion for severance, that claim was couched exclusively in terms of state legal principles.¹⁶⁶ In fact, there was nothing in petitioner's state habeas corpus application that would have alerted the Texas Court of Criminal Appeals to even the remote possibility that petitioner wished to assert either the Sixth Amendment or Eighth Amendment claims which petitioner presents to this Court.

166 State Habeas Transcript, at pp. 41-43. The only ground for relief asserted by petitioner in his state habeas corpus application challenging the trial court's denial of petitioner's motion to sever asserted that the trial court's ruling had violated TEX. CRIM. PROC. CODE ANN., art. 36.09. Id.

Petitioner's state habeas corpus application included no reference to any federal case law in support of petitioner's complaint regarding the state trial court's failure to sever his trial from Foster's. Nothing else in petitioner's state habeas application would reasonably have alerted the state habeas court to the possibility that petitioner wished to urge a Sixth or Eighth Amendment complaint regarding the state trial court's failure to sever. Petitioner therefore failed to fairly present the state habeas court with the substance of his Sixth and Eighth Amendment complaints about the state trial court's failure to sever.

To have "fairly presented" his federal claims regarding the state trial court's failure to sever, the petitioner must have reasonably alerted the state courts to the federal nature of his complaints about the state trial court's failure to sever. Wilder, 274 F.3d at 260 ("A fleeting reference to the federal constitution, tacked onto the end of a length, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights."). Petitioner's state habeas pleadings contain no mention of any of the Sixth of Eighth Amendment legal theories underlying petitioner's claims. Nor did petitioner request the state habeas court issue conclusions of law addressing petitioner's Sixth and Eighth Amendment complaints about the state trial court's failure to sever. Under such circumstances, petitioner failed to "fairly present" the state habeas court with his Sixth and Eighth Amendment complaints about the state trial court's failure to sever his trial from Kenneth Foster's. See Martinez v. Johnson, 255 F.3d 229, 238-39 (5th Cir. 2001). Pursuant to the AEDPA, this Court cannot grant federal habeas relief on either of this claim. 28 U.S.C. § 2254(b)(1)(A).

2. Procedural Default

As explained above, procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman, 501 U.S. at 735 n. 1. In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan, 526 U.S. at 848. Petitioner's procedural default arises by virtue of his failure to fairly present the federal legal bases underlying his claims to the Texas Court of Criminal Appeals, on either direct appeal or in his state habeas corpus application. The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas capital murder defendant is barred under the procedural default doctrine. See, e.g., Matchett, 380 F.3d at 848.

Additionally, the Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show cause and actual prejudice for his default or that failure to address the merits of his procedurally defaulted claim will work a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. As explained above, petitioner has failed to satisfy either of the exceptions to the procedural default doctrine. Therefore, petitioner is not entitled to relief on his claim regarding the failure to sever his trial from that of Kenneth Foster.

IV. Certificate of Appealability

The AEDPA converted the "certificate of probable cause" that was required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a Certificate of Appealability ("CoA"). Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997). Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under § 2254, the petitioner must obtain a CoA. 28 U.S.C. § 2253(c)(2); Miller-El v. Johnson, 537 U.S. 322, 335-36 (2003). Appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002).

A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Miller-El, 537 U.S. at 336. To make such a showing, the petitioner need not show that he will prevail on the merits but, rather, demonstrate that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Id. The propriety of granting a CoA may be addressed sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. Miller-El, 537 U.S. at 338. In a case in which the petitioner wishes to challenge on appeal the Court's dismissal of a claim for a reason not of constitutional dimension — such as procedural default, limitations, or lack of exhaustion — the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the Court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483 (2000).

Viewed in proper context, there is no basis for disagreement among jurists of reason with regard to the Court's disposition of any of petitioner's claims. Petitioner failed to exhaust state remedies on four claims for relief and, thereby, procedurally defaulted. Petitioner has failed to satisfy either exception to the procedural default doctrine. Furthermore, petitioner attempted to supplement several of his ineffective assistance claims herein with unexhausted evidence. Even considering this unexhausted evidence, the Court independently determined that none of petitioner's ineffective assistance claims satisfy either prong of Strickland. Petitioner's constructive denial of counsel claim additionally is foreclosed by the Supreme Court's holding in Bell. All of petitioner's constitutional challenges to the Texas capital sentencing scheme are foreclosed by the Supreme Court's holdings in Tuilaepa and its progeny. Petitioner's complaints regarding the handling of state parole law in his punishment-phase jury instructions are foreclosed by Teague, as well as the Supreme Court's re-affirmation in Ramdass of the limited scope of the Simmons rule. Finally, Petitioner's complaints about the state trial court's limitations on the cross-examination of Mary Patrick fail to surmount the harmless error rule.

There is no legitimate basis for disagreement among rational jurists over any of the foregoing issues. The Texas Court of Criminal Appeals's rejections on the merits of those of petitioner's federal claims which petitioner did properly exhaust were reasonable and fully consistent with clearly established federal law. Under such circumstances, petitioner is not entitled to a CoA.

V. Conclusion

1. Respondent's motion for summary judgment (docket no. 27) is GRANTED. All relief requested in petitioner's federal habeas corpus petition (docket no. 20), filed February 5, 2002, as supplemented by petitioner's reply to respondent's motion for summary judgment (docket no. 30), is DENIED.

2. Petitioner is DENIED a Certificate of Appealability.

3. All other pending motions are DISMISSED as moot.

4. Judgment is entered in favor of respondent.