Sells v. Thaler

Full title: TOMMY LYNN SELLS, TDCJ No. 999367, Petitioner, v. RICK THALER, Director…

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

Date published: Jun 27, 2012

CIVIL NO. SA-08-CA-465-OG (W.D. Tex. Jun. 27, 2012)

Opinion

CIVIL NO. SA-08-CA-465-OG

06-27-2012

TOMMY LYNN SELLS, TDCJ No. 999367, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

ORLANDO L. GARCIA United States District Judge

MEMORANDUM OPINION AND ORDER DENYING RELIEF

Petitioner Tommy Lynn Sells originally filed this federal habeas corpus action in the Del Rio Division of this Court, collaterally attacking his September, 2000 Val Verde County conviction for the capital murder of Kaylene Harris on December 31, 1999. Following a change of venue and multiple stays of this cause to permit petitioner to return to state court and exhaust state court remedies on various claims, including an Atkins claim, petitioner filed his amended petition on February 23, 2011, asserting several claims of ineffective assistance by his trial counsel, complaints regarding the trial court's rulings on evidentiary and procedural matters, and a number of challenges to the constitutionality of the Texas capital sentencing scheme. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.

I. Background

A. The Offense

There is no genuine doubt as to the events of December 31, 1999 which resulted in the death of Kaylene Harris. Within hours of his arrest on January 2, 2000, petitioner gave a voluntary, videotaped statement in which he described (1) entering the Harris family residence during the early morning hours of December 31, 1999 through a bedroom window with a butcher knife he had brought with him, (2) entering the bedroom where 13-year-old Kaylene was sleeping with her 11-year-old family friend Krystal Surles, (3) turning on the bedroom light and waking Kaylene, (4) slashing Kaylene's throat with his knife, (5) telling a frightened Krystal Surles to remove her hands from her own throat and then slashing her throat as well, and (6) thereafter exiting the Harris residence through the door.¹

1 An edited copy of the petitioner's videotaped confession was admitted into evidence at petitioner's trial as State Exhibit 1-A and played for the jury. Statement of Facts from petitioner's trial, (henceforth "S.F. Trial"), Volume 21, testimony of Larry Pope, at p. 51. A pair of DVD's containing both the petitioner's complete videotaped confession, as well as the edited version actually admitted into evidence during trial, appear among the state court records in this cause.

Later on the day of his arrest, petitioner voluntarily accompanied law enforcement officers to the Harris residence where he walked them through a videotaped tour of the crime scene and again described his actions on the night of the murder.²

2 The videotape recording of petitioner's "walk-through" at the crime scene was admitted into evidence at petitioner's trial as State Exhibit no. 3 and played for the jury. S.F. Trial, Volume 19, testimony of John W. Allen, at p. 165. A copy of the videotape of the petitioner's crime scene "walk-through" appears on a DVD among the state court records herein.

In what her physician described as a "remarkable" and "amazing" turn of events,³ once petitioner fled the scene, Krystal Surles survived her injuries and managed to walk to a neighboring residence, where she indicated nonverbally her need for help and the need for help to be summoned to the Harris residence.⁴

3 One of the physicians who treated Krystal Surles at the University of Texas Health Science Center in San Antonio testified (1) Krystal's injuries were normally lethal, (2) it was "remarkable" emergency medical personnel in Del Rio were able to intubate Krystal due to the extent of her injuries and the accompanying swelling and distortion resulting therefrom, (3) "it is by the grace of God that she is alive today," (4) Krystal suffered a five-inch wound across her neck which nearly severed her carotid artery and did penetrate through her thyroid cartilage and sever a portion of her vocal cords, (5) Krystal's injuries rendered her unable to speak, and (6) Krystal also had defensive wounds to both her hands. S.F. Trial, Volume 21, testimony of Dr. Cynthia Beamer, at pp. 32-37.

4 S.F. Trial, Volume 19, testimony of Krystal Surles, at pp. 100-10; testimony of Herbert H. Betz, at pp. 116-24.
The neighbor to whose residence Krystal walked after she and Kaylene were attacked by petitioner testified at petitioner's trial (1) he was awakened just before five a.m. on December 31, 1999 by his door bell ringing, (2) he asked who was there but heard no response, (3) when he flipped on the porch light, he saw a little girl covered in blood, (4) the girl pointed to her throat, which he could see had been slashed, (5) the girl could not talk, (6) his wife cared for the girl while he called 911, (6) the girl gestured that she wanted to write something, (7) when they handed her paper and pencil, she wrote "Harrises are hurt," "tell them to hurry,' and "will I live," (7) emergency medical personnel arrived and furnished care to Krystal while he directed law enforcement officers to the Harris residence. S.F. Trial, Volume 19, testimony of Herbert H. Betz, at pp. 11624.

At petitioner's trial, Krystal Surles testified without contradiction (1) she was awakened by the sound of Kaylene's voice saying "help," (2) when she awoke, the light was on in the bedroom and she could see petitioner's hands covering Kaylene's mouth, (3) petitioner had a knife in his right hand, (4) she saw petitioner slit Kaylene's throat, (5) Kaylene turned, grabbed a poster off the wall, fell, and began making "bad noises," gasping for air and gurgling, (6) petitioner then moved toward Krystal, (7) she promised to be quiet and begged to be spared, (8) petitioner told her to "move your hands," (9) petitioner then reached into the upper bunk where Krystal was lying and cut her throat, (10) Krystal lay still and pretended to be dead, (11) petitioner walked to the bedroom door, looked around, turned off the light, and exited the bedroom, (12) Krystal remained still for another few minutes, then climbed down off the bunk and unsuccessfully tried to leave the house through a bedroom window, (13) she was unable to talk but tried to comfort Kaylene by laying down next to her, (14) she heard a vehicle start up and felt her way to the door, (15) the front door of the house was unlocked, and (16) she walked to the Betz's home to seek help.⁵

5 S.F. Trial, Volume 19, testimony of Krystal Surles, at pp. 87-107.

On January 7, 2000, petitioner executed two voluntary written statements detailing his actions on the night of the murder and stating, for the first time, he had cut off Kaylene's underwear and molested her before he slashed her throat.⁶ B. Indictments

6 Petitioner's written statements were admitted into evidence at petitioner's trial as State Exhibit nos. 4 and 5 and read in open court to the jury. S.F. Trial, Volume 20, testimony of Larry Pope, at p. 170. Copies of petitioner's two written statements appear in S.F. Trial, Volume 28.
In his first, and longer, of those two statements, i.e., State Exhibit no. 4, petitioner recounted a meeting with Terry Harris, Kaylene's father, on December 30, 1999 at a convenience store, during which Harris informed petitioner he was going to Kansas and would repay petitioner money which Harris owed petitioner for cocaine once Harris returned from Kansas. Petitioner also stated he later became angry with Harris for not timely repaying petitioner and "decided to do something about it." Petitioner explained he went home, obtained a knife and some beer, and drove to the Harris residence. Petitioner then recounted his burglary of the Harris residence and fatal assault upon Kaylene.
More specifically, petitioner stated in State Exhibit no. 4, in pertinent part, as follows:

I got out of the car and walked around the [Harris] house. I tried to get in the back door of the house. The back door was locked I tried to trip the door lock where it goes into the frame of the door by using the knife blade but I couldn't. The dog started barking so I walked around to the front of the house where the dog was penned up. I let the dog smell my hand and I petted him.
He quit barking. I went to the back of the trailer by the air conditioner. I took a screen off the window there and tried to get in. [T]he window was locked and I couldn't get in. I went back around to the front of the trailer by the dog pen and noticed the window on that end of the trailer was open. I took the screen off and crawled in the window. When I got in I saw a little boy in the bed in that room. He spoke to me and said "I wish you all would quit coming in my room." I knew this was the little blind boy, I had met him before. I have been out to Terry's house several times before and I had been inside his house before. I walked out of the bedroom into a bedroom beside it. I struck my lighter and looked in this room. There was a small girl sleeping in this room. I think I looked into the room where the murder took place but I'm not sure. I know I walked down to the other end of the trailer. I looked in Terry's bedroom. Terry's wife and a little girl were sleeping in that room. I think I touched Terry's wife on the leg. I still didn't know what I was going to do. I left that room and went all the way back to the other end of the trailer. I walked into the bedroom on that end of the trailer. This is the bedroom where the murder took place. I don't remember how she woke up but I do know I layed [sic] down beside the girl on the bottom bunk and I cut her panties off with the knife. I think I cut her bra. I touch [sic] her between the legs and I touched her breast. She wasn't fighting me. The she jumped out of bed, she jumped out on the side away from the door. She told the girl on the top bunk to go get moma [sic]. I stood in front of the bedroom door to block it. The door was already closed. She came toward the door like she was going to try to get out the door. I stabbed her with the knife. She said something like, look you cut me. I turned on the bedroom light and she showed me her arm. I walked toward her, I reached out and sliced her throat. She fell down at the foot of the bed. I reached down and I cut her throat a couple more times. I started to walk out of the room and I remember [sic] the little girl on the top bunk. I walked over to the side of the bed and laid the knife across her throat and cut her throat. I walked out of the room toward the back door When I got about to the kitchen I heard an alarm clock got [sic] off. It was making a beeping sound. I walked back toward the other end of the trailer where the sound was coming from. The alarm clock was in the little blind boy's room. I went in this room, I picked up the clock and turned the alarm off. I don't remember seeing the little boy in the room when I did this.
I walked to the back door and left by the door. I closed the door and wiped my fingerprints off the doorknob with the sleeve of my jacket. I picked up the screen from the back window. I walked around front and picked up the other screen I had taken off. I took the screens because they would have my fingerprints on them. * * *

On February 8, 2000, a Val Verde County grand jury indicted petitioner on two counts of capital murder, to wit, intentionally murdering Kaylene by cutting her throat while in the course of committing the offenses of (1) burglary of a habitation with intent to commit aggravated sexual assault and (2) aggravated sexual assault.⁷ Petitioner was indicted separately for the attempted murder of Krystal Surles. The state trial court consolidated both cases for trial. C. Guilt-Innocence Phase of Trial

7 Transcript of pleadings, motions, and other documents filed in petitioner's state trial court proceeding (henceforth "Trial Transcript"), at pp. 9-10.
Petitioner was indicted under a separate cause number on a charge of attempted murder in connection with his assault upon Krystal Surles. The state trial court consolidated the two charges for trial. Trial Transcript, at p. 131.

The guilt-innocence phase of petitioner's trial commenced on September 12, 2000. At the outset of trial, petitioner pleaded guilty to the attempted murder of Krystal Surles.⁸

8 S.F. Trial, Volume 19, at pp. 13-14, 90-92.

1. The Evidence

In addition to the evidence summarized above, the prosecution presented testimony from a Del Rio waitress establishing that, on the night of December 30, 1999, petitioner (1) repeatedly solicited sex from her, even offering to pay for same, (2) she rejected all his offers, (3) petitioner eventually left the bar where she worked around 2:15 a.m., and (4) petitioner commented at one point that he had a knife.⁹

9 S.F. Trial, Volume 19, testimony of Noell Houchin, at pp. 28-37.

Terry Harris, Kaylene's father, testified (1) he knew petitioner through church and had counseled petitioner on marital problems and offered career advice, (2) petitioner had been inside the Harris home at least once and had met all the Harris children, (3) he purchased his truck at the motor vehicle dealership where petitioner worked, (4) petitioner helped him repair a leaky water line in the backyard and he showed petitioner where the family's phone line was located to avoid accidentally cutting the line, (5) the Harris family dog was familiar with petitioner, (6) the evening before Kaylene's murder, he had a conversation with petitioner at a convenience store and informed petitioner he was leaving town on a trip to Kansas, (7) he reached Kansas around six thirty the following morning and unsuccessfully attempted to phone home, and (8) when he returned home, he found his telephone line had been cut near the area where he and petitioner had repaired the leaky pipe.¹⁰

10 S.F. Trial, Volume 19, testimony of Terry Harris, at pp. 67-81.

Kaylene's mother Crystal Harris testified, in pertinent part, (1) she was awakened on the morning of December 31, 1999 by the sound of the Sheriff's department personnel inside her home, (2) law enforcement officers would not allow her to move toward the rear of the house where Kaylene's bedroom was located, (3) she and her surviving children were removed from their home, (4) she unsuccessfully attempted to telephone her husband, (5) when she retired the night before, all of the doors were shut and locked and all but one window (in her son Justin's bedroom) was locked, (6) petitioner had been to the Harris residence at least three times to talk with her husband, had met her children, and was friendly with the family dog, (7) she did not hear the family dog bark that night, and (8) the family's phone had worked properly the day before Kaylene's murder.¹¹

11 S.F. Trial, Volume 19, testimony of Crystal Harris, at pp. 39-53.

Kaylene's 14-year-old brother Justin testified (1) he has been blind since birth, (2) he went to bed around 9:30 p.m. on December 30, 1999, (3) his alarm clock went off around 4:30 a.m. while he was in the bath room, (4) someone turned the clock off, (5) he later went back to bed and fell asleep, (6) he never heard anyone in his room that night, (7) when he awoke again, police were asking him if he was okay and taking him outside to a car, and (8) he never heard the family dog bark that night.¹²

12 S.F. Trial, Volume 19, testimony of Justin Harris, at pp. 56-64.

Law enforcement officers testified they recovered petitioner's blue jeans, blue-green shirt, and black jacket from the laundry basket at the Sells residence.¹³ Law enforcement personnel also testified they recovered a butcher knife with a bent blade from the field across the road from petitioner's residence, i.e., the location where petitioner indicated he had thrown the murder weapon.¹⁴

13 S.F. Trial, Volume 19, testimony of John W. Allen, at pp. 165-69; Volume 20, testimony of John W. Allen, at pp. 10-11; Volume 20, testimony of Larry Pope, at pp. 51-52, 59-61; Volume 21, testimony of Larry Dean Stamps, at pp. 19-22.

14 S.F. Trial, Volume 19, testimony of John W. Allen, at p. 169; Volume 20, testimony of John W. Allen, at p. 11; Volume 21, testimony of Larry Dean Stamps, at pp. 22-24, 26-27.

Forensic experts testified (1) blood stains found on petitioner's blue jeans matched those of petitioner and Kaylene,¹⁵ (2) a blood stain on Kaylene's tee shirt was consistent with a mixture of her blood and petitioner's blood,¹⁶ (3) a pair of pajama shorts found at the base of the bed in Kaylene's bedroom bore stains consistent with a mixture of Kaylene's blood and the blood of another female,¹⁷ (4) blood stains found on Kaylene's panties also contained blood stains consistent with a mixture of Kaylene's blood and the blood of another female,¹⁸ (5) the knife recovered near petitioner's residence contained traces of a female's blood but not Kaylene's,¹⁹ (6) microscopic examination of Kaylene's panties and pajama shorts revealed both had been cut by a knife consistent with the butcher knife recovered near petitioner's residence,²⁰ (7) pink polyester fibers consistent with Kaylene's pink pajama shorts were found on petitioner's shirt, jacket, and blue jeans,²¹ (8) pink cotton and pink acrylic fibers consistent with Kaylene's pajama shirt were found on petitioner's clothing,²² (9) black acrylic fibers consistent with petitioner's jacket, blue-green fibers consistent with petitioner's shirt, and black polyester and black rayon fibers consistent with petitioner's jacket were all found on Kaylene's clothing,²³ and (10) three different types of black fibers, all consistent with petitioner's jacket, were found on Kaylene's clothing.²⁴

15 S.F. Trial, Volume 21, testimony of Cassie Cardine, at p. 73.

16 Id., at pp. 74-75.

17 Id., at pp. 75-76.

18 Id., at pp. 76-77.

19 Id., at pp. 80-81.

20 S.F. Trial, Volume 21, testimony of Bradley Mullins, at pp. 104-07.

21 Id., at p. 112.

22 Id.

23 Id., at pp. 112-13.

24 Id., at p. 114.

The medical examiner who performed the autopsy on Kaylene's body testified, in pertinent part (1) Kaylene suffered a gaping, five-inch wound across the neck which appeared to have been the product of three separate cuts and which caused rapid blood loss and was fatal within several minutes²⁵; (2) Kaylene's neck wound included cuts to the right carotid artery and right jugular vein and the complete cleaving of the top portion of her voice box²⁶; (3) Kaylene sustained a total of sixteen stab wounds, three of which went completely through her body²⁷; (4) four of these stab wounds were to the left side of Kaylene's chest, three of which penetrated into her left lung and the fourth of which penetrated into her right lung, which collectively caused both of Kaylene's lungs to collapse and blood to enter the chest cavity²⁸; (5) an abdominal stab wound penetrated six inches into Kaylene's abdominal cavity, through her liver and duodenum²⁹; (6) Kaylene sustained multiple stab wounds to the left hip³⁰; (7) a stab wound to Kaylene's right lower back cut through her renal artery and inferior vena cava and would have been fatal by itself³¹; (8) Kaylene also sustained superficial wounds to her left arm³²; (9) of the multiple stab wounds to Kaylene's right arm, one penetrated four inches and another which extended completely through her arm³³; (10) Kaylene sustained contusions on the right forearm³⁴; (11) a superficial linear abrasion and linear contusion in Kaylene's left inguinal crease was consistent with force having been applied to Kaylene's panties and the edges thereof cutting into her flesh³⁵; (12) an oval contusion on Kaylene's inner right thigh was likely caused by a finger or thumb grabbing her there³⁶; (13) Kaylene also sustained contusions on the outer right knee and fresh bruises to the front and back of both legs³⁷; (14) Kaylene sustained an abrasion to her left inner leg near the knee and multiple bruises to her left calf and knee³⁸; (15) Kaylene's body displayed a pattern of bruises to her legs suggesting someone had grabbed both her legs and attempted to pull them apart³⁹; and (16) examination of Kaylene's genitals reveals a small, relatively fresh, bruise on the internal aspect of the labia minora with some reddening of the hymenal ring.⁴⁰ In addition to her fatal neck wound, the medical examiner testified the stab wounds to Kaylene's chest, liver, and renal artery, respectively, would each independently have been sufficient to have caused her death.⁴¹

25 S.F. Trial, Volume 20, testimony of Jan Garavaglia, at p. 92, 95-96, 117.

26 Id., at pp. 92-93.

27 Id., at pp. 97-99.

28 Id., at pp. 98-99, 114-16.

29 Id., at pp. 100-01.

30 Id., at pp. 102-03.

31 Id., at p. 104.

32 Id., at pp. 104-06.

33 Id., at p. 105.

34 Id., at pp. 107-08.

35 Id., at pp. 108-09.

36 Id., at p. 110.

37 Id., at pp. 110-11.

38 Id., at p. 112.

39 Id., at pp. 113, 122.

40 Id., at pp. 113-14.

41 Id., at pp. 115-17.

Petitioner offered no evidence at the guilt-innocence phase of his capital murder trial.

2. The Verdict

The petitioner's jury heard oral arguments, retired, and began its deliberations at approximately 1:35 p.m. on September 18, 2000.⁴² At approximately 2:45 p.m. that same date, the jury advised the bailiff they had reached their verdict.⁴³ Later that afternoon, the jury returned its verdict, finding petitioner guilty of the capital murder of Kaylene Harris.⁴⁴ The trial court ordered the jury sequestered.⁴⁵ D. Punishment Phase of Trial

42 S.F. Trial, Volume 23, at p. 90.

43 Id.

44 Id., at pp. 91-92.

45 Id., at p. 93.

The punishment phase of petitioner's capital murder trial commenced on September 19, 2000.

1. The Prosecution's Evidence

The prosecution called a former Val Verde County Detention Center inmate who had been housed in a cell adjacent to petitioner's for a little more than two months who testified (1) when he complained of depression, the petitioner told him to hang himself, (2) in April, 2000, the petitioner became angry and threatened to blind and kill him, and (3) when he reported petitioner's threats, jail officials moved him to a different part of the facility.⁴⁶

46 S.F. Trial, Volume 24, testimony of Danny Calderon, at pp. 42-51.

The prosecution next called a psychologist (Dr. Frederick Mears) who testified (1) based primarily upon a review of petitioner's records and the details of petitioner's capital offense (including photographs of the victim's injuries), the petitioner was "off the scale" in terms of the likelihood of future violence by petitioner, (2) the past is the best indicator of future violent behavior, (3) Kaylene's autopsy revealed a number of post-mortem wounds which he described as analogous to body desecration and mutilation, (4) the nature of many of Kaylene's non-fatal wounds suggested the petitioner had derived pleasure from the brutality of his capital offense, (5) anti-social personalities such as the petitioner are highly manipulative, (6) petitioner displayed a cavalier attitude on his videotaped confession and crime scene walk-through indicative of a lack of emotion and absolute indifference to death typical of an anti-social personality, (7) he detected an increase or escalation over time in the level of violence involved in petitioner's criminal history, and (8) petitioner displayed no remorse for his criminal conduct on either of the videotapes made January 2, 2000.⁴⁷

47 S.F. Trial, Volume 24, testimony of Dr. Frederick Mears, at pp. 55-85.

A Texas Department of Public Safety fingerprint analyst testified petitioner's fingerprints matched those on a pair of pen packets, one from Wyoming reflecting petitioner's conviction for auto theft, and another from West Virginia, reflecting petitioner's conviction for "malicious wounding."⁴⁸

48 S.F. Trial, Volume 24, testimony of Charles Joe Parker, at pp. 86-91.
The two pen packets were admitted into evidence as State Exhibit Nos. 104 and 105 and appear in S.F. Trial, Volume 28.

2. The Defense's Evidence

The defense called the Val Verde County jail administrator who testified petitioner had only two disciplinary referrals during petitioner's stay of more than eight months at that facility, one of which was a verbal threat against an inmate in an adjoining cell.⁴⁹

49 S.F. Trial, Volume 24, testimony of Patricia Hobrecht, at pp. 101-03.

The defense called its own psychologist (Dr. Windel Lee Dickerson) who testified, in pertinent part, (1) he had interviewed petitioner for two days in April, 2000, listened to a recorded interview of petitioner's mother, reviewed petitioner's prison records, and spoken with persons who had known petitioner all his life, (2) he suspected petitioner had been sexually abused while quite young by a pedophile who lived in petitioner's neighborhood but petitioner would not discuss the subject, (3) petitioner had a profound history of substance abuse that began possibly as early as age seven and was a serious problem by the time petitioner reached age fifteen, (4) an EEG revealed a widespread pattern of diffuse abnormality in petitioner's brain function, including coherence problems, phase and symmetry problems, and problems with the front and rear portions of petitioner's brain communicating well with each other, (5) he administered various psychological tests to petitioner which revealed petitioner is a very seriously disordered individual, and (6) in contrast to the prosecution expert's diagnosis of anti-social personality, his diagnosis of petitioner was that of borderline personality disorder with schizoid, avoidant, and anti-social features and possible brain damage but not true anti-social personality.⁵⁰

50 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 128-58.

Dr. Dickerson also testified as follows:

What my examination has revealed to this point is, there is a history of life experience which could be -- which could be considered instigators to violence, things that prompt him. There are conditions that are present in his mind and body which I think dramatically affect his ability to guide and direct his own behavior and resist those instigations [sic] to violence. Those same things that reduce his capacity for self-restraint

have also altered his ability -- I think his ability to get a wrap around a lot of bad things that has [sic] happened in his life and reconstruct them, reposition them in his life in such a way that they do not cause him the problems that they have caused, so I think when I talk about Tommy Lynn Sells, I'm talking about somebody who has got a lot of problems that give us cause to be very seriously concerned.⁵¹

Dr. Dickerson testified further that medications had helped petitioner control his propensity for violence during previous incarcerations and that, if removed from the rest of the prison population and properly medicated, it was possible to reduce the risk factors for future violence and improve petitioner's capacity for self-management.⁵² Dr. Dickerson also opined that (1) with the exception of those convicted of sexually motivated crimes and serial killers, mental health professionals were no more accurate than other in terms of predicting future violence by prisoners,⁵³ and (2) based upon his experience with the Texas prison system, he believed petitioner could be housed under conditions that greatly reduced the risk of future violence from petitioner.⁵⁴

51 Id., at p. 160.

52 Id., at pp. 161-63, 168.

53 Id., at pp. 165-68.

54 Id., at pp. 168-73.

On cross-examination, Dr. Dickerson testified (1) petitioner scored near the top of the MMPI scale measuring lack of empathy, (2) persons who score high on that measure are often angry and unable to express their feelings, have a low frustration tolerance, and are often irritable, (3) petitioner also had an elevated paranoia scale, which is not uncommon in prison, and (4) petitioner's EEG and other medical tests show no brain tumors or seizure disorders.⁵⁵

55 S.F. Trial, Volume 25, testimony of Dr. Windel L. Dickerson, at pp. 8-16.

On re-direct examination, Dr. Dickerson testified (1) petitioner will not be free if sentenced to life in prison, (2) the availability of street drugs in prison is limited, (3) life in prison reduces or eliminates many of the risk factors for violence, including concerns over financial stress, unemployment, and housing stability, (4) inmates assigned to administrative segregation are held outside the general prison population and guarded heavily, (5) people tend to grow less violent as they grow older, (6) petitioner was then 36 years old and would have to serve at least forty years in prison before becoming eligible for release on parole, (7) petitioner's medical problems can be treated in prison, (8) the pool of petitioner's potential victims is narrowed while he is in prison, (9) the availability of weapons in prison is reduced, (10) it is easier to monitor and manage petitioner's mental illness while he is in prison, (11) the risk of future violence from petitioner in prison is greatly reduced, (12) alcohol consumption contributed prominently in every one of petitioner's criminal offenses for which he had been convicted and the availability of alcohol in prison is reduced, (13) in the free world, petitioner is "dangerous as he can be" but, under proper medication and supervision in a prison setting, petitioner's danger level can be reduced "very appreciably," (14) "you have got an individual here who is a very alarming person," and (15) probably seventy five percent of prison inmates could be classified as anti-social, meaning there was nothing extraordinary about Dr. Mears' diagnosis of petitioner.⁵⁶

56 Id., at pp. 16-38.

On re-cross examination, Dr. Dickerson admitted (1) TDCJ inmates can refuse to take prescribed medications, (2) he could not recall petitioner's comments during his videotaped confession in which petitioner confessed to being glad he had been caught because he feared hurting others, (3) petitioner must serve at least forty years before becoming eligible for parole, (4) petitioner has trouble being emotionally involved with others, (5) petitioner's crime was very opportunistic, (6) it is possible to obtain a weapon inside Texas prisons, and (7) prisoners have escaped from Texas prisons, including from death row.⁵⁷

57 Id., at pp. 38-51.

3. Prosecution's Rebuttal Evidence

The prosecution called the chief investigator for the Texas Special Prison Prosecution Unit, who testified (1) prison rules and regulations will not prevent an inmate intent on violence from being violent, (2) male and female guards and prison personnel are present at all TDCJ facilities and have daily contact with the inmate population, (3) even dangerous inmates have contact with guards, (4) prisoners cannot ordinarily be forced to take medications, and (5) homemade weapons are available in prison.⁵⁸

58 S.F. Trial, Volume 25, testimony of Royce Smithey, at pp. 58-71.

On cross-examination, Mr. Smithey testified (1) only a small fraction of the more than one hundred fifty thousand TDCJ inmates are responsible for violence in Texas prisons, (2) violence occurs throughout the prison system, even on death row, (3) the only way to assure a prisoner will not be violent is to execute him, (4) not all administrative segregation inmates are handled one-on-one by guards, (5) while there is more security in administrative segregation generally, administrative segregation is not identical at all TDCJ facilities, and (6) administrative segregation is a type of prisoner classification, not a description of a type of TDCJ unit.⁵⁹

59 Id., at pp. 71-82.

4. The Verdict

On September 20, 2000, the petitioner's jury heard closing arguments at the punishment phase of trial and retired to deliberate at approximately 2:28 p.m.⁶⁰ At approximately 4:40 p.m. that same date, the jury sent out a note indicating it had reached its verdict.⁶¹ Shortly thereafter, the jury returned its verdict in open court, finding (1) beyond a reasonable doubt there was a probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society⁶² and (2) taking into consideration all of the evidence, including the circumstances of the offense, and the petitioner's character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment.⁶³ E. Direct Appeal

60 S.F. Trial, Volume 25, at pp. 85-121.

61 Id., at p. 122.

62 S.F. Trial, Volume 25, at p. 123; Trial Transcript, at p. 272.

63 S.F. Trial, Volume 25, at p. 123; Trial Transcript, at p. 273.

Petitioner appealed his conviction and sentence in an appellant's brief filed March 19, 2001, in which petitioner asserted thirty-six points of error.⁶⁴ The Texas Court of Criminal Appeals subsequently affirmed petitioner's conviction and sentence and the United States Supreme Court denied petitioner's petition for writ of certiorari. Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. March 12, 2003), cert. denied, 540 U.S. 986 November 3, 2003). F. First State Habeas Corpus Proceeding

64 Petitioner's state appellate counsel, attorney Mark Stevens, asserted points of error on petitioner's behalf (1) attacking the trial court's admission of petitioner's videotaped statements, (2) challenging the trial court's exclusion during the punishment phase of trial of a videotape showing the administrative segregation facilities at a TDCJ unit, (3) challenging the trial court's refusal to permit petitioner's trial counsel to voir dire the jury venire on their views regarding Texas parole law, (4) challenging the trial court's denial of petitioner's challenges for cause against two venire members, (5) challenging the trial court's refusal to permit petitioner's trial counsel to voir dire a female venire members regarding whether she could ever answer the future dangerousness special issue negatively in the case of a murdered young girl, (6) challenging the sufficiency of the evidence showing petitioner sexually assaulted Kaylene Harris, and (7) challenging the constitutionality of various provisions of the Texas capital sentencing statute and Texas capital sentencing special issues.

Petitioner filed his first application for state habeas corpus relief, i.e., App. no. 62,552-01, on January 30, 2003, asserting therein six complaints of ineffective assistance by his trial counsel.⁶⁵

65 More specifically, although styled as only four claims in petitioner's initial state habeas corpus application, the petitioner's first state habeas counsel, attorney Terry McDonald, argued petitioner's trial counsel rendered ineffective assistance under the Sixth Amendment (1) by failing to adequately investigate petitioner's background and present available mitigating evidence, (2) due to a conflict of interest which arose from a book deal petitioner's trial counsel negotiated concerning said counsel's representation of petitioner, (3) by presenting only one witness during the punishment phase of trial, i.e., Dr. Dickerson, and (4) in contravention of the Texas Constitution by (a) committing each of the foregoing acts, (b) failing to voir dire the jury venire on the subject of parole, and (c) failing to request the assistance of a co-counsel. Transcript of pleadings, motions, and other documents filed in petitioner's first state habeas corpus proceeding (henceforth "First State Habeas Transcript"), at pp. 30-55.
Attached to petitioner's first state habeas application were a pair of affidavits : (1) from Ann Matthews in which she (a) expressed her opinion petitioner's trial defense team was more interested in soliciting payments in exchange for petitioner's confession to other offenses than in vigorously defending petitioner, (b) averred that unidentified persons wired money to the defense team from Missouri, (c) averred petitioner's defense team permitted an author to interview petitioner at some point and used the author to gather information for use at trial, and (d) petitioner's defense team contacted multiple television news magazines about selling petitioner's story, and (2) an affidavit from Bob Schanz in which he recounts information he heard from others about petitioner's defense team.

The state responded to petitioner's first state habeas corpus application, in part, by presenting the state trial court with an affidavit from petitioner's former trial counsel in which said counsel (1) stated the defense team's court-appointed investigator Vince Gonzalez "spoke with various family members of Tommy Lynn Sells and did not find any helpful mitigation evidence that was not already known," (2) at the request of the defense team, petitioner underwent a PET exam which showed no organic brain damage or signs of schizophrenia, (3) during the pendency of trial, there were no discussions among the defense team regarding any fees other than those earned and paid for by Val Verde County, (4) there were never any discussions of book royalties being given or assigned to anyone on the defense team, (5) no one on the defense team ever accepted any remuneration other than that provided as payment by Val Verde County, (6) the defense team chose as a matter of trial strategy not to call any mitigation witnesses other than Dr. Dickerson because of concerns other witnesses might have knowledge of extraneous offenses committed by petitioner which could have been raised and used by the prosecution, including an attempted sexual assault, (7) petitioner approved this defense strategy, and (8) while the trial court originally appointed a second attorney to assist petitioner, and the trial court indicated a willingness to appoint co-counsel to assist petitioner, the petitioner did not want the attorney originally court-appointed as co-counsel to assist at trial and petitioner's trial counsel did not feel he needed a co-counsel for petitioner's trial.⁶⁶

66 Affidavit of Victor Robert Garcia, First State Habeas Transcript, at pp. 73-75.

On June 29, 2005, the state habeas trial court issued an Order containing its findings of fact, conclusions of law, and recommendation that petitioner's first state habeas corpus application be denied.⁶⁷

67 First State Habeas Transcript, at pp. 97-107.

The Texas Court of Criminal Appeals denied petitioner's first state habeas corpus application in an unpublished per curiam Order based upon the trial court's findings and conclusions. Ex parte Tommy Lynn Sells, WR-62,552-01 (Tex. Crim. App. August 31, 2005). G. Second State Habeas Corpus Proceeding

On August 17, 2006, petitioner filed his second state habeas corpus application, in which he argued he was mentally retarded and, therefore, exempt from execution pursuant to the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).⁶⁸ On May 23, 2007, the Texas Court of Criminal Appeals dismissed petitioner's second state habeas corpus application in an unpublished, per curiam, Order based upon petitioner's failure to make a "threshold showing of evidence that would be at least sufficient to support an ultimate conclusion by clear and convincing evidence that he is mentally retarded." Ex parte Tommy Lynn Sells, WR-62,552-02, 2007 WL 1493151 (Tex. Crim. App. May 23, 2007). H. Third State Habeas Corpus Proceeding

68 Transcript of pleadings, motions, and other documents filed in petitioner's second state habeas corpus proceeding (henceforth "Second State Habeas Transcript"), WR-62,552-02, at pp. 4-33.
Attorney Alan Futrell filed petitioner's second state habeas corpus application and attached thereto affidavits and sworn statements from an educator experienced in assessing mental retardation in students named James Patton, petitioner's mother (Nina Lovins), petitioner's brother Timmy Sells, and petitioner's trial expert Dr. Windel Lee Dickerson, along with properly authenticated copies of records from several schools petitioner attended. Second State Habeas Transcript, at pp. 36-88.

On September 15, 2010, petitioner filed his third state habeas corpus application, in which he asserted ten new claims of ineffective assistance by his trial counsel, along with a new Brady claim premised upon the prosecution's alleged failure to disclose to petitioner's trial counsel a booking sheet that was introduced into evidence by petitioner's trial counsel during a pretrial hearing.⁶⁹

69 Transcript of pleadings, motions, and other documents filed in petitioner's third state habeas corpus proceeding (henceforth "Third State Habeas Transcript"), WR-62-552-03, at pp. 5-72. Petitioner's ineffective assistance claims consisted of arguments that petitioner's trial counsel rendered ineffective assistance virtue of (1) the state trial court's denial of petitioner's motions for appointment of an investigator and mental health expert, (2) said trial counsel's failure to request a continuance to complete the investigation into potentially mitigating evidence available in Missouri, (3) said counsel's failure to subpoena out-of-state witnesses, including petitioner's family members, and others who could have testified regarding petitioner's background and abused and neglected childhood, (4) said counsel's failure to ask Dr. Dickerson unspecified questions that would have "personalized" petitioner, (5) said counsel's failure to investigate, develop, and present available, potentially mitigating, evidence showing petitioner suffers from fetal alcohol syndrome, (6) restrictions the state trial court placed on the ability of the defense team to interview petitioner's family and friends located in other jurisdictions, (7) said counsel's failure to obtain petitioner's mental health records and to seek a mental health evaluation of petitioner, including neuropsychological testing of petitioner, (8) said counsel's failure to object to the prosecutor's argument that ten votes were needed for petitioner to receive a life sentence, (9) said counsel's failure to inform petitioner's appellate and state habeas counsel that the scope of trial counsel's investigation into petitioner's background has been restricted financially and geographically, and (10) petitioner's original state habeas counsel failed to investigate, develop, and present all the claims contained in petitioner's third state habeas corpus application. Petitioner's new Brady claim was premised upon the prosecution's alleged failure to disclose to petitioner's trial counsel petitioner's booking sheet from the Val Verde County Detention Center dated January 2, 2000 on which a jail employee had typed an "X" next to "mental deficiency." This same document was admitted into evidence as D-X-1 by petitioner's trial counsel during a pretrial hearing held June 25, 2000. S.F. Trial, Volume 3, testimony of Larry Pope, at pp. 73-75. The booking sheet in question appears at S.F. Trial, Volume 26, among the exhibits from petitioner's pretrial Jackson v. Denno hearing.
Attorneys Alan Futrell and John E. Wright, who filed petitioner's third state habeas application, attached thereto a plethora of affidavits, sworn statements, and authenticated documents, including (1) a pair of affidavits from petitioner's mother (Nina Lovins)(one of which was a copy of an affidavit petitioner attached to his second state habeas corpus application and the other of which was dated September 5, 2010), (2) another copy of the same August 12, 2006 affidavit from Dr. Dickerson petitioner attached to his second state habeas corpus application, (2) a pair of affidavits from petitioner's brother Timmy Sells (one of which was a copy of the same affidavit that had been attached to petitioner's second state habeas corpus application and the other of which was dated September 5, 2010), (3) affidavits of Vince Gonzales (dated September 14, 2010), Mary Howell (dated September 5, 2010), and Paul Hunt (dated August 30, 2010), (4) a fetal alcohol syndrome disorder screening questionnaire, (5) the affidavit of Dr. Richard Adler dated September 14, 2010 and several medical journal articles on fetal alcohol syndrome, (6) the affidavit of Dr. Antoinette McGarrahan dated July 10, 2009, (7) the affidavit of Dr. Brian Skop dated September 14, 2009, (8) petitioner's January 2, 2000 booking sheet from the Val Verde County Detention Center, and (9) various documents from petitioner's trial court proceedings, including his judgment.

The Texas Court of Criminal Appeals dismissed petitioner's third state habeas corpus application pursuant to state writ-abuse principles. Ex parte Tommy Lynn Sells, WR-62,552-03, 2010 WL 5168591 (Tex. Crim. App. December 15, 2010). H. Proceedings in Federal Court

Petitioner filed his original petition in the Del Rio Division of this Court on August 16, 2006. Docket entry no. 12.

The first stay of proceedings in this cause to permit petitioner to return to state court to present then-unexhausted claims took place on August 23, 2006. Docket entry no. 14. That stay was lifted August 4, 2008. Docket entry no. 25.

Thereafter, petitioner "supplemented" his claims herein on no less than four separate occasions. Docket entry nos. 70, 71, 82, 86.

A second stay was issued August 16, 2010 to permit petitioner to return to state court once more and exhaust available state habeas corpus remedies on a wide range of new claims petitioner had presented in his various supplemental pleadings. Docket entry no. 106. That second stay was lifted December 17, 2010. Docket entry no. 115.

On February 23, 2011, petitioner filed his amended federal habeas corpus petition, asserting therein numerous claims of ineffective assistance by his trial counsel, complaints about the trial court's limitations on pretrial investigative funding, complaints about the trial court's restrictions on petitioner's trial counsel's voir dire examination of the jury venire, the trial court's denial of petitioner's challenges for cause to two members of the jury venire, the trial court's exclusion of a proffered videotape showing the administrative segregation facilities at a TDCJ unit, and multiple challenges to the constitutionality of the Texas capital sentencing scheme and capital sentencing special issues. Docket entry no. 122.

Petitioner attached to his amended petition voluminous documents, many of which petitioner has never presented to any state court.⁷⁰

70 Among the many documents petitioner presented to this Court for the first time as attachments and exhibits to his amended petition which petitioner has never presented to any state court, despite years of stays and delays for the very purpose of allowing petitioner to exhaust available state remedies on his new claims and new evidence, are (1) an undated, unsworn declaration by petitioner's mother Nina Lovins (Petitioner's Exhibit 122-4), (2) an unsworn declaration by petitioner's brother Timmy Sells dated October 28, 2009 (Petitioner's Exhibit 122-6), (3) an unsworn declaration by Mary Howell dated March 11, 2010 (Petitioner's exhibit 122-7), (4) an unsworn declaration by Lance E. Page dated December 12, 2009 (Petitioner's Exhibit 122-8), (5) an unsworn declaration by Sandi Wicoff dated October 29, 2009 together with an unauthenticated transcription of a unverified interview (Petitioner's Exhibit 122-9), (6) an unsworn declaration by Paul Hunt dated December 11, 2009 (Petitioner's Exhibit 122-10), (7) an affidavit of Danny D. Hunter dated October 5, 2007 (Petitioner's Exhibit 122-11), (8) an unsworn, undated, declaration of Jessica Y. Levrie Blanco Sells (Petitioner's exhibit 122-13), (9) an affidavit of John Pippen dated October 5, 2009 (Petitioner's Exhibit 122-14), (10) an unsworn declaration by Guadalupe D. Guzman dated October 27, 2009 (Petitioner's exhibit 122-15), (11) a report dated September 23, 2008 from CLS Mitigation and Consulting Services accompanied by copies of petitioner's medical records from a 1981 hospitalization reflecting petitioner has significant anger issues and feels the need to strike out at others (Petitioner's exhibit 122-22), (12) a business records affidavit dated January 20, 2009 and 236 pages of records from the Missouri Department of Corrections reporting numerous instances of disciplinary infractions committed by petitioner during petitioner's incarceration for "felonious stealing" at age nineteen and following the revocation of petitioner's parole for DWI (Petitioner's Exhibit 122-23), and (13) a mental health evaluation dated March 13, 1990 performed by personnel with the Wyoming State Hospital indicating petitioner displayed low-average IQ and an anti-social personality and a February 29, 1990 report by a Dr. Paul C. Jennings indicating petitioner was then functioning in the low average range intellectually (Petitioner's Exhibit 122-24).

On May 16, 2011, respondent filed his answer to petitioner's amended petition, arguing therein, in part, (1) many of petitioner's claims herein are procedurally defaulted by virtue of the dismissal of petitioner's third state habeas corpus application and (2) petitioner's reliance on voluminous new documents which fundamentally alter the nature of many of petitioner's otherwise exhausted ineffective assistance claims and render same unexhausted. Docket entry no. 125.

On August 8, 2011, petitioner filed his reply to respondent's answer, arguing therein that ineffective assistance by petitioner's initial state habeas counsel mandated rejection of respondent's procedural default defense and compel this Court to address the merits of all of petitioner's claims herein. Docket entry no. 134. Petitioner attached thereto more voluminous exhibits, once again many of which have never been presented by petitioner to any state court.⁷¹

71 Among the many new documents which apparently have never been presented to any state court in support of his claims herein are (1) an affidavit by petitioner's first state habeas counsel, attorney Terry McDonald, dated August 4, 2011 (Petitioner's exhibit 134-2), (2) a trio of state habeas corpus applications filed by attorney McDonald on behalf of Ramiro Gonzales, Geronimo Gutierrez, and Taichin Preyor (Petitioner's exhibits 134-3, 134-4, and 134-5, respectively), and (3) a state habeas corpus application and numerous exhibits attached thereto apparently filed on behalf of Lejames Norman in September, 2010 (Petitioner's exhibits 134-5 and 134-6).

II. Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this 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, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause 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. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 l.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d).

The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). 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. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003)("A state court's decision is 'contrary to' our clearly established law if it 'applies a rule that contradicts the governing law set forth in our cases' or it 'confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, per se, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, 'so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.

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. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1439; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, ___ U.S. ___, ___, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010)("A federal habeas court can only set aside a state-court decision as 'an unreasonable application of...clearly established Federal law,' § 2254(d)(1), if the state court's application of that law is 'objectively unreasonable.'"); Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold."); Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003)("it 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").

As the Supreme Court has recently explained:

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."

Bobby v. Dixon, ___ U.S. ___, ___, 132 S.Ct. 26, 27, 181 L.Ed.2d 328 (2011)(quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)).

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. Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004)("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003).

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code, provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, ___ U.S. ___, ___, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010)("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, ___ U.S. at ___, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).

In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with 'clear and convincing evidence.'"); Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006)("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'"); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005)("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the 'presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e)(1). It remains unclear at this juncture whether Section 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under Section 2254(d)(2). See Wood v. Allen, ___ U.S. at ___, 130 S.Ct. at 849 (choosing not to resolve the issue of Section 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339, 126 S.Ct. at 974 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003)("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.").

Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010)(federal habeas review of a state court's adjudication involves review only of a state court's decision, not the written opinion explaining the decision), cert. denied, ___ U.S. ___, 132 S.Ct. 124, 181 L.Ed.2d 46 (2011); St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir. 2006)(holding Section 2254(d) permits a federal habeas court to review only a state court's decision and not the written opinion explaining that decision), cert. denied, 550 U.S. 921 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir. 2006)(holding the same), cert. denied, 550 U.S. 920 (2007); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)(holding the precise question before a federal habeas court in reviewing a state court's rejection on the merits of an ineffective assistance claim is whether the state court's ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045 (2004); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir. 2003)(holding a federal habeas court reviews only a state court's decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)(en banc)(holding a federal court is authorized by §2254(d) to review only a state court's decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104 (2003).

III. Exclusion of Petitioner's Videotape of Administrative

Segregation Facilities at a TDCJ Unit

A. The Claim

In his seventh and eighth claims in his amended petition, petitioner argues the state trial court's exclusion of defendant's exhibit no. 2, a videotape recording showing the administrative segregation facilities of the Texas Department of Criminal Justice's Mark Michaels Unit, violated petitioner's Eighth and Fourteenth Amendment right to present "mitigating evidence" at the punishment phase of petitioner's capital murder trial.⁷² B. State Court Disposition

72 Petitioner's Amended Petition, filed February 23, 2011, docket entry no. 122 (henceforth "Amended Petition"), at pp. 172-201.

During the punishment phase testimony of defense expert Dr. Dickerson, petitioner's trial counsel offered defense exhibit no. 2, a fifty-seven minute videotape showing the administrative segregation facilities at the TDCJ's Mark Michael's Unit.⁷³ The trial court deferred ruling on the admissibility of same until the prosecution had an opportunity during the evening to examine the tape. The following day, the prosecution objected to the videotape on the grounds it was not relevant and, even if relevant, it was cumulative of Dr. Dickerson's testimony and did not add anything to assist the jury in answering the special issues.⁷⁴ The trial court sustained the prosecution's objection, concluding the tape was of questionable relevance, did not purport to be a comprehensive description of the TDCJ's methods of operation, but, rather only showed an excerpt of same, posed the danger of misleading the jury, and amounted to cumulative evidence.⁷⁵

73 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 169-70.

74 S.F. Trial, Volume 25, at p. 4.

75 S.F. Trial, Volume 25, at pp. 5-6.

During his cross-examination of prosecution expert Royce Smithey, petitioner's trial counsel re-urged admission of the videotape, arguing the videotape refuted Mr. Smithey's contention the TDCJ "cannot control inmates."⁷⁶ The trial court denied petitioner's request.⁷⁷

76 S.F. Trial, Volume 25, testimony of Royce Smithey, at p. 81.

77 Id.

In his motion for new trial, petitioner argued the trial court had erred in excluding the videotape of the Michaels Unit's administrative segregation facilities.⁷⁸ The trial court denied same.⁷⁹

78 Trial Transcript, at pp. 281-84.

79 Trial Transcript, at p. 286.

In his third, fourth, and fifth points of error on direct appeal, petitioner argued the trial court's exclusion of the videotape in question violated Texas Rules of Evidence and the Eighth and Fourteenth Amendments.⁸⁰ The Texas Court of Criminal Appeals rejected all of these arguments on the merits. Sells v. State, 121 S.W.3d at 765-66. C. Clearly Established Federal Law

80 Appellant's Brief, at pp. 23-37.

Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991)(holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)(recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984)(holding a federal court may not issue the writ on the basis of a perceived error of state law); Goodrum v. Quarterman, 547 F.3d 249, 261 (5th Cir. 2008)("'it is not the province of a federal habeas court to reexamine state court determinations on state-law questions' such as the admissibility of evidence under state procedural rules"), cert. denied, ___ U.S. ___, 128 S.Ct. 1612, 173 L.Ed.2d 1000 (2009).

In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874.

When a federal district court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter.

Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991).

A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner's trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991); Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 2470-72, 91 L.Ed.2d 144 (1986); Goodrum v. Quarterman, 547 F.3d at 261; Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007), cert. denied, 552 U.S. 1314 (2008); Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005), cert. denied, 546 U.S. 1217 (2006).

The question before this Court is not whether the state trial court properly applied state evidentiary rules but, rather, whether petitioner's federal constitutional rights were violated by the state trial court's rulings on evidentiary matters. See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir. 2005)(holding federal habeas review of a state court's evidentiary ruling focuses exclusively on whether the ruling violated the federal Constitution), cert. denied, 546 U.S. 900 (2005).

Due process is implicated only for rulings "of such a magnitude" or "so egregious" that they "render the trial fundamentally unfair." It offers no authority to federal habeas courts to review the mine run of evidentiary rulings of state trial courts. Relief will be warranted only when the challenged evidence "played a crucial, critical, and highly significant role in the trial."
The due process inquiry must consider the significance of the challenged evidence "in the context of the entire trial." We have held that the Due Process Clause does not afford relief where the challenged evidence was not the principal focus at trial and the errors were not "'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" This is a high hurdle, even without AEDPA's added level of deference.

Gonzales v. Thaler, 643 F.3d 425, 430-31 (5th Cir. 2011) (Footnotes omitted). D. AEDPA Analysis

Contrary to the contentions underlying petitioner's seventh and eighth claims herein, neither the Eighth nor the Fourteenth Amendments renders superfluous state rules of evidence during the punishment phase of a capital murder trial. Petitioner's reliance upon the Supreme Court's holdings in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), is misplaced. Both of those opinions addressed situations in which a state trial court excluded on hearsay grounds evidence showing that a person other than the defendant had confessed to committing the same capital murder for which the defendant was being prosecuted. In stark contrast, the petitioner's proffered videotape showing the operations and security procedures within the Michael Unit's administrative segregation housing facilities do not share any similarity with such evidence to the special issues properly before petitioner's capital sentencing jury.

1. No Eighth Amendment Violation

The Supreme Court has made it clear States are permitted under the Eighth Amendment 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. See Johnson v. Texas, 509 U.S. 350, 62, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993)(holding (1) there is no constitutional requirement of unfettered sentencing discretion in the jury and (2) States are free to "structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty."); Boyde v. California, 494 U.S. 370, 377, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990)(holding the same). Evidence detailing the conditions under which Texas prison inmates assigned to administrative segregation are housed does not address the defendant's moral culpability or blameworthiness for his crime. Thus, insofar as the state trial court concluded the videotape was not relevant to the special issues before the jury at the punishment phase of petitioner's capital murder trial, that conclusion was neither objectively unreasonable under the Supreme Court's Eighth Amendment jurisprudence nor otherwise inconsistent with clearly established federal law.

Likewise, a capital murder defendant is not entitled to present any and all evidence the defendant subjectively believes to have "mitigating value" without regard for concerns of trial management, jury confusion, or unfair prejudice. For instance, the fact a capital murder defendant's co-defendant received a life sentence for participating in the same capital offense as the defendant does not render evidence of the co-defendant's life sentence admissible during the punishment phase of the defendant's capital murder trial, even when the co-defendant actually delivered the fatal blow. See Cordova v. Johnson, 157 F.3d 380, 383 (5th Cir. 1998)(a capital defendant is not entitled to introduce evidence of a co-defendant's sentence because such sentence is irrelevant to a defendant's "character, prior record, or the circumstances of the offense."), cert. denied, 525 U.S. 1131 (1999).

Exclusion of the petitioner's proffered videotape did not preclude petitioner from presenting any relevant, material, mitigating evidence to petitioner's capital sentencing jury. Dr. Dickerson testified extensively concerning his view that the tools available to TDCJ personnel (including medication, close supervision, and potential placement in administrative segregation facilities) would be sufficient to reduce the risk of future dangerousness or violence from petitioner while incarcerated to a manageable level.⁸¹

81 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 161-73; Volume 25 testimony of Dr. Windel Lee Dickerson, at pp. 20-37.

2. No Due Process Violation

The state trial court and Texas Court of Criminal Appeals both concluded admission of the nearly hour-long videotape showing administrative segregation facilities at the TDCJ's Mark Michaels Unit posed the potential to confuse the jury because, in part, there was no evidence showing that, had petitioner received a life sentence, he would ever have been housed in administrative segregation at the Michaels Unit. Sells v. State, 121 S.W.3d at 765-66. The prosecution's expert, Royce Smithey, testified without contradiction (1) not all TDCJ Units possessed administrative segregation facilities, (2) there were differences, because of differences in design and operation, between TDCJ Units in the manner in which inmates were housed when placed in administrative segregation at those Units, (3) there are no "administrative segregation units" within the TDCJ, only administrative segregation facilities within some, but not all, Units, (4) even when in administrative segregation, inmates have daily contact with guards and other prison personnel, and (5) classification of an inmate into administrative segregation is not automatic.⁸² As the Texas Court of Criminal Appeals pointed out, petitioner did not accompany the proffered videotape with any evidence showing the information contained thereon addressed the petitioner's individual circumstances or how the petitioner might be handled if incarcerated for "life." Sells v. State, 121 S.W.3d at 766.

82 S.F. Trial, Volume 25, testimony of Royce Smithey, at pp. 58-82.

Having benefitted from reviewing hundreds, if not thousands of federal civil rights lawsuits and habeas corpus actions filed in this Court over the past two decades, with the attendant review of untold reams of TDCJ disciplinary and classification records, this Court has more than a passing familiarity with the manner in which TDCJ personnel administratively classify inmates. Contrary to the implications underlying the testimony of Dr. Dickerson and the arguments of petitioner's trial counsel, there is no rational basis to believe that, had petitioner received a sentence of life imprisonment, petitioner would have spent the following forty years (or any substantial portion thereof) locked away in administrative segregation. As Mr. Smithey testified, the only locations within TDCJ where inmates are housed in conditions analogous to administrative segregation on a permanent basis is death row.⁸³ This Court takes judicial notice of the reality that, while a TDCJ inmate's offense of conviction is a consideration in the classification process, conviction for murder, even capital murder, does not per se mandate permanent classification of that inmate in administrative segregation. This Court notes that all TDCJ inmates are routinely and periodically reviewed for adjustment of their classification status. Even when placed in administrative segregation, usually for misbehavior during incarceration, an inmate does not remain in administrative segregation permanently for the duration of his sentence without any possibility of review of that determination. It has been this Court's experience that even those TDCJ inmates assigned to administrative segregation for serious breaches of discipline rarely remain there for significant periods of time, much less permanently. Most inmates assigned to administrative segregation remain there only until either (1) they have served a period deemed sufficient by prison officials to punish them for breaking prison rules or (2) the inmate indicates to prison officials a willingness to obey prison rules and to refrain from further breaches of those rules. Thus, the suggestions implicit in Dr. Dickerson's testimony and the arguments of petitioner's trial counsel (that petitioner faced the realistic prospect of permanent placement in administrative segregation for the duration of his forty-year "life sentence") urged in support of the admission of defense exhibit no. 2 were, at best, disingenuous and, at worst, misleading.

83 Id., at pp. 74-75.

Under such circumstances, exclusion of the petitioner's proffered videotape of the TDCJ's Mark Michaels Unit's administrative segregation housing facilities did not constitute an egregious evidentiary error or render petitioner's capital murder trial fundamentally unfair. See Simmons v. Epps, 654 F.3d 526, 542-44 (5th Cir. 2011)(holding exclusion during the punishment phase of a capital murder trial of a videotape in which a capital murder defendant expressed remorse without directly admitting the murder did not render the trial fundamentally unfair), cert. filed December 27, 2011 (no. 11-8085). On the contrary, the petitioner's trial counsel's and expert's arguments implicitly suggesting the videotape accurately reflected the conditions under which petitioner would likely spend the bulk of a "life sentence" were, at best, highly speculative and, at worst, factually erroneous.

The exclusion of petitioner's proffered videotape did not render petitioner's capital sentencing hearing fundamentally unfair. Given Mr. Smithey's unchallenged testimony that not all TDCJ facilities possessed administrative segregation facilities and there were significant differences between TDCJ Units in the manner of operation for those administrative segregation facilities which did exist, the videotape was of dubious relevance, at best. Insofar as it was relevant, the videotape was cumulative of Dr. Dickerson's testimony regarding the tools available to TDCJ officials to reduce the risk of future violence from petitioner. Therefore, exclusion of the videotape did not play a "crucial, critical, and highly significant role" in the punishment phase of petitioner's capital murder trial. E. Conclusions

The Texas Court of Criminal Appeals' rejections on the merits during the course of petitioner's direct appeal of petitioner's Eighth and Fourteenth Amendment challenges to the state trial court's exclusion of petitioner's proffered videotape of the TDCJ's Mark Michael Unit's administrative segregation facilities were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, motion for new trial, and direct appeal proceedings. Petitioner's seventh and eighth claims herein do not warrant relief under the AEDPA.

IV. Prohibition on Voir Dire Regarding Parole

A. The Claim

In his second claim herein, petitioner argues the state trial court erred in refusing to permit petitioner's trial counsel to voir the jury venire individually regarding each venire member's view on Texas parole law via-a-vis a capital sentence.⁸⁴ B. State Court Disposition

84 Amended Petition, at pp. 106-51. Petitioner's Amended Petition consists substantially of a verbatim recitation of six through nineteen, many of which raised purely state constitutional claims. Insofar as petitioner's second claim herein can be construed as asserting grounds for relief based on alleged violations of the Texas Constitution, those grounds are non sequitur. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102 (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874 (holding a federal court may not issue the writ on the basis of a perceived error of state law).

At the time of petitioner's trial, Texas law provided that, upon written request by defense counsel, a capital sentencing jury be charged as follows:

Under the law applicable to this case, if the defendant is sentenced to life imprisonment, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot be accurately predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on the decisions made by the prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.⁸⁵

85 Article 37.071, §2(e)(2)(B), Texas Code of Criminal Procedure Annotated, (Vernon Supp. 1999).

At the conclusion of the evidence at the punishment phase of petitioner's capital murder trial, the state trial court instructed petitioner's jury in this manner, in language almost identical to that set forth above.⁸⁶

86 Trial Transcript, at pp. 274-75. The petitioner's actual punishment phase jury instruction included a reference to the "Institutional Division of the Texas Department of Criminal Justice" but otherwise tracked the statutory language.

In a pretrial motion,⁸⁷ petitioner's trial counsel sought leave to ask members of the jury venire the following four questions:

87 Trial Transcript, at pp. 53-54.

1. Would the minimum length of time a defendant could serve in prison before he could be paroled be something you would want to know in answering the special issues?

2. On which special issue would this be important? How would this 40 year minimum sentence be important to you in answering the special issues?

3. Would you be more likely, or less likely, generally, to view a defendant as a continuing threat to society if you knew he could not be paroled for a minimum of 40 years?

4. What kind of evidence would you expect, as a juror, to help you in considering the 40-year parole ineligibility factor when answering the special issue?

Sells v. State, 121 S.W.3d at 755.

At several points during individual voir dire, petitioner's counsel was permitted to ask individual members of the jury venire whether they could obey the law and disregard any impact parole might play on the duration of a life sentence for petitioner when answering the Texas capital sentencing special issues.⁸⁸

88 See, e.g., S.F. Trial, Volume 6, voir dire examination of Hilda C. Lopez, at p. 100; voir dire examination of Rita A. Cardenas, at p. 168; voir dire examination of James C. Jones, at p. 208; voir dire examination of Kimberly R. Middleton, at p. 240; Volume XVII, voir dire examination of Ayde Rodarte, at p. 16.

At several other points during individual voir dire, the state trial court refused to permit petitioner's trial counsel to ask the four questions set forth above.⁸⁹

89 See, e.g., S.F. Trial, Volume 6, voir dire examination of Miriam Carrizales, at pp. 67-69; voir dire examination of Patty C. Harrison, at p. 129; voir dire examination of Rita A. Cardenas, at p. 171; voir dire examination of Craig G. Alexander, at pp. 268-69; Volume 7, voir dire examination of Lucrecia Almond, at p. 27; Volume 8, voir dire examination of Hijinio H. Cuellar, at p. 40; voir dire examination of William C. Cooper, at p. 136; Volume 11, voir dire examination of John H. Reavis, at p. 82.

In his motion for new trial, petitioner argued the trial court had erred in refusing to permit petitioner's trial counsel to voir dire the jury venire using the four questions listed above.⁹⁰ The state trial court denied petitioner's motion for new trial in an Order issued November 2, 2000.⁹¹

90 Trial Transcript, at pp. 281-84.

91 Trial Transcript, at p. 286.

In his seventh, ninth, eleventh, thirteenth, fifteenth, seventeenth, and nineteenth points of error on direct appeal, petitioner argued the state trial court's refusal to permit petitioner's trial counsel to voir dire seven identified members of the jury venire utilizing the four questions regarding parole violated due process principles.⁹²

92 Appellant's Brief, at pp. 48-49, 52-53, 56-57, 60-61, 64-65, 68-69, 73-74.

The Texas Court of Criminal Appeals rejected all of these points of error on the merits:

The trial court has broad discretion over the process of selecting a jury. Without the trial court's ability to impose reasonable limits, voir dire could go on indefinitely. Thus, we leave to the trial court's discretion the propriety of a particular question and will not disturb the trial court's decision absent an abuse of discretion. A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. A question is proper if it seeks to discover a juror's views on an issue applicable to the case. However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.
With the change in the law effective September 1, 1999, a jury may now be instructed on a capital defendant's eligibility for parole. Assuming, without deciding, that the statutory change renders questioning about parole permissible in some situations, appellant has failed to show error here.
To preserve error, appellant must show that he was prevented from asking particular questions that were proper. That the trial court generally disapproved of an area of inquiry from which proper questions could have been formulated is not enough because the trial court might have allowed the proper question had it been submitted for the court's consideration. Here, none of appellant's proposed questions were proper.
All of appellant's questions relate to how a particular fact (in this case, the minimum amount of time a capital life defendant must be incarcerated before becoming eligible for parole) might influence jury deliberations. These types of questions implicate the strictures imposed by Standefer against commitment questions and by Barajas against ambiguous questions. Appellant's questions all appear to be attempts, either directly or through ambiguously worded questions, to commit the veniremembers to giving mitigating or aggravating effect to the minimum parole eligibility requirement. Appellant's first proposed question-about whether a veniremember would want to know the minimum

time a defendant could serve in prison before he could be paroled-is not strictly relevant to a juror's duties or any issue in the case. What the jurors wants to know is immaterial; the trial court will give jurors the proper information about the application of the law. The perceived relevance of the question stems from why a juror wants to know about parole law. This implied "why" question is ambiguous. Does the prospective juror want to know minimum parole eligibility because that knowledge will foreclose honest consideration of the special issues or because that knowledge will have an impact on how evidence is evaluated with regard to the special issues? If the latter, the question is really designed to determine whether the veniremember would give, or to commit the veniremember to giving, mitigating or aggravating impact to the minimum parole eligibility requirement. Appellant's second and fourth questions invite the prospective jurors to set the parameters for their decision-making by determining to which special issues the parole eligibility instruction would be considered relevant, the mitigating or aggravating impact the instruction would have on the juror's consideration of the special issues, and what evidence would tend to accentuate or minimize the parole instruction's mitigating or aggravating effect. Appellant's third question directly seeks to determine whether a prospective juror will give the parole instruction mitigating or aggravating effect in the context of the future dangerousness special issue. Although a capital life inmate's minimum parole eligibility is in some sense a fact, it is also codified by statute and now provided for by statute as an instruction. Because of this incorporation into the statutory framework, a prospective juror must be able to keep an open mind on the punishment special issues even after acquiring knowledge of this fact. But the law neither requires nor precludes the factoring of the parole instruction into the jurors' analysis of the special issues; so, any attempt to commit prospective jurors to giving mitigating, aggravating, or even no effect to the parole instruction is impermissible. Thus, the trial judge did not err when he refused to allow appellant to ask the entire venire or various individual veniremembers the proposed questions on the law of parole. Points of error six through nineteen are overruled.

Sells v. State, 121 S.W.3d at 755-57 (Footnotes omitted). C. Clearly Established Federal Law

To be constitutionally compelled, it is not enough that requested voir dire questions might be helpful. Rather, the trial court's failure to ask (or permit counsel to ask) the questions must render the defendant's trial fundamentally unfair. Morgan v. Illinois, 504 U.S. 719, 730 n.5, 112 S.Ct. 2222, 2230 n.5, 119 L.Ed.2d 492 (1992); Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905, 114 L.Ed.2d 493 (1991). D. AEDPA Analysis

The authorities cited by petitioner in support of his second claim herein do not establish that petitioner was entitled to voir dire venire members on their personal views on a subject (the impact of petitioner's potential parole eligibility) which petitioner's petit jurors were specifically instructed in accordance with state law they could not consider when answering the Texas capital sentencing special issues.

The first Supreme Court opinion on which petitioner relies, Morgan v. Illinois, supra, held that a state trial court was required to permit the voir dire of potential jurors on whether they would automatically vote to impose the death penalty if the defendant were convicted of capital murder regardless of the mitigating evidence introduced at the punishment phase of trial. Morgan v. Illinois, 504 U.S. at 729-34, 113 S.Ct. at 2230-32. The petitioner's potential eligibility for release on parole did not constitute "mitigating evidence" within the meaning of the Eighth Amendment because it did not lessen the defendant's moral culpability or blameworthiness for his crime. Johnson v. Texas, 509 U.S. at 62, 113 S.Ct. at 2666. Even if it did, petitioner's capital sentencing jury was properly instructed in accordance with Texas law at that time regarding the availability of release on parole for a capital murder defendant sentenced to serve a term of "life imprisonment."

The peculiarities of Texas parole statutes and good time credit rules at the time of petitioner's offense and trial have no relevance, legally or logically, to any of the Texas capital sentencing special issues. Gomez v. Quarterman, 529 F.3d 322, 335 (5th Cir.)(holding a defendant can receive a jury instruction regarding parole ineligibility only if there exists a life-without-possibility-of-parole alternative to the death penalty - an option not available at the time of petitioner's capital murder trial), cert. denied, 555 U.S. 1050 (2008); Thacker v. Dretke, 396 F.3d 607, 617-19 (5th Cir.) (rejecting a wide variety of constitutional claims urging adoption of a rule mandating jury instructions on the effect of Texas parole laws on a life sentence), Cert. denied, 546 U.S. 840 (2005); Martinez v. Dretke, 426 F.Supp.2d 403, 512 (W.D. Tex. 2006), CoA denied, 270 Fed. Appx. 277, 2008 WL 698946 (5th Cir. March 17, 2008).

Likewise, petitioner's reliance on the Supreme Court's opinion in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), is misplaced. In Simmons, the Supreme Court addressed capital sentencing in South Carolina and other jurisdictions which authorized capital sentencing juries to impose sentences of either death or life without the possibility of parole. See Simmons v. South Carolina, 512 U.S. 154, 168-69 & n.8, 114 S.Ct. 2187, 2196 & n.8, 129 L.Ed.2d 133 (1994), (plurality opinion specifically explaining that, as of that date, Texas courts traditionally kept capital sentencing juries unaware of the availability of parole for those sentenced to serve terms of life imprisonment). Representing the views of three members of the Supreme Court, Justice O'Connor's concurring opinion in Simmons is significant because it emphasized South Carolina law provided a capital defendant faced the possibility of life without parole. Id., 512 U.S. at 176-78, 114 S.Ct. at 2200-01 (concurring opinion).

The Supreme Court's subsequent opinion in Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), continued the vitality of this distinction, as the plurality opinion for the Supreme Court therein 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., 530 U.S. at 169, 120 S.Ct. at 2121. In her separate, pivotal, concurring, opinion in Ramdass, Justice O'Connor once again emphasized her view of the continued vitality of the rule in Simmons, as enunciated by the plurality in Ramdass, and also pointed out Ramdass came before the Supreme Court in the context of a federal habeas corpus proceeding, in which the Supreme Court's review, like this Court's review in the present cause, is circumscribed by the terms of the AEDPA. Id., 530 U.S. at 179, 120 S.Ct. at 2126 (concurring opinion).

More recently, the Supreme Court's opinion in Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), at least implicitly acknowledged the continued vitality of the distinction first noted in Simmons by holding 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 Shafer v. South Carolina, 532 U.S. at 51, 121 S.Ct. at 1273 ("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.").

In Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), the Supreme Court reiterated its holding in Shafer, emphasizing once again South Carolina capital sentencing juries which unanimously found the presence of an aggravating circumstances were left to select between one of only two possible sentences: death or life imprisonment without the possibility of parole. Kelly v. South Carolina, 534 U.S. at 252 & n.2, 122 S.Ct. at 730 & n.2.

While Texas has recently joined South Carolina and other jurisdictions which provide capital sentencing juries the option of sentencing a convicted capital murderer to a term of life without parole, at the time of petitioner's offense and trial, Texas law did not provide for a sentence of life imprisonment without the possibility of parole. The Supreme Court's Fourteenth Amendment jurisprudence, including Simmons, Ramdass, Shafer, and Kelly, makes an express distinction between the rule applied in Simmons and Shafer and the due process requirements in jurisdictions such as Texas at the time of petitioner's crime and capital murder trial, where sentences of either death or life without parole are not the only choices facing a capital sentencing jury. The legal premise underlying petitioner's second claim herein ignores this critical distinction. There is simply no "clearly established" federal law, as enunciated by the United States Supreme Court, holding the Fourteenth Amendment's Due Process Clause requires potential jurors be subjected to voir dire regarding their personal views on the impact of parole eligibility in a capital sentencing context when those same jurors will necessarily be instructed in accordance with state law to disregard the defendant's potential parole eligibility at the punishment phase of trial. Druery v. Thaler, 647 F.3d at 544; Gomez v. Quarterman, 529 F.3d at 335; Thacker v. Dretke, 396 F.3d at 617-19.

Two of the Supreme Court opinions relied upon by petitioner held that potential jurors in a capital case involving an interracial crime must be interrogated on the issue of racial bias. See Turner v. Murray, 476 U.S. 28, 36-37, 106 S.Ct. 1683, 1687, 90 L.Ed.2d 27 (1986)("We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of race bias."); Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 850, 35 L.Ed.2d 46 (1973)(holding the Due Process Clause required the state trial judge to conduct voir dire examination of potential jurors on the subject of racial prejudice). Petitioner does not allege any facts showing he and Kaylene Harris were of different races or different ethnic backgrounds. Nor does petitioner identify any potential racial animus or ethnic prejudice which petitioner claims interfered with the essential demands of fairness during his capital murder trial. As such, petitioner's reliance on Turner, Ham, and their progeny is misplaced.

Finally, in Gardner v. Florida, 420 U.S. 349, 360-62, 97 S.Ct. 1197, 1205-07, 51 L.Ed.2d 393 (1977), the Supreme Court struck down a capital sentence where the sentencing court imposed sentence, in part, based upon a confidential pre-sentence report which was not disclosed to petitioner or his trial counsel. Petitioner does not allege any facts showing his capital sentencing jury was furnished with any information other than the evidence actually presented during petitioner's trial. Petitioner's capital sentencing jury was properly instructed regarding the impact of Texas parole laws on any potential life sentence petitioner might receive. The holding in Gardner is inapplicable to petitioner's case.

The four voir dire questions proffered by petitioner's trial counsel invited and encouraged petitioner's jury venire to do precisely what Texas precluded them from doing, i.e., speculate on how petitioner's potential parole eligibility (if sentenced to serve a term of life imprisonment) might impact the duration of petitioner's life sentence, when answering the Texas capital sentencing special issues. Petitioner's trial counsel was permitted to ask potential jurors (and said counsel did ask several venire members) whether they could follow applicable state law and disregard the impact of parole on a potential life sentence when answering the capital sentencing special issues.⁹³ Petitioner has not identified any voir dire answers or questionnaire answers given by any of the seven venire members identified in petitioner's appellant's brief suggesting any of those venire members were confused regarding the legal inapplicability of Texas parole law to a capital sentencing jury's consideration of the Texas capital sentencing special issues. Under such circumstances, the refusal of the state trial court to permit petitioner's trial counsel to examine the entire jury venire in the manner requested, i.e., by asking the four parole-related questions listed above, did not render petitioner's trial fundamentally unfair. E. Teague Foreclosure

93 See note 88, supra.

Respondent correctly points out the legal rule underlying petitioner's second claims herein, i.e., that a capital defendant has a constitutional right to inquire as to precisely how potential jurors would view the impact of Texas parole laws during their deliberations on the Texas capital sentencing special issues (at a time when Texas capital murder defendants were ineligible to receive a term of life imprisonment without the possibility of parole), would be a "new rule" of federal constitutional criminal procedure and is, therefore, barred from adoption in this federal habeas corpus proceeding by the non- retroactivity principle announced in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). Druery v. Thaler, 647 F.3d at 544-45; Gomez v. Quarterman, 529 F.3d at 335.

Under the Supreme Court's holding in Teague, 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, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). A "rule"for Teague purposes 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, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997)(holding 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. Id.

The holding in Teague is applied in three steps: first, the court must determine when the petitioner's conviction became final; second, the court must survey the legal landscape as it then existed and determine whether a state court considering the petitioner's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and third, if the rule advocated by the petitioner is a new rule, the court must determine whether the rule falls within one of the two narrow exceptions to the non-retroactivity principle. Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953.

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 v. Netherland, 521 U.S. at 157, 117 S.Ct. at 1973. A conviction becomes final for Teague purposes when either the United States Supreme Court denies a certiorari petition on the defendant's direct appeal or the time period for filing a certiorari petition expires. Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953.

Petitioner's conviction became final for Teague purposes not later than November 3, 2003, i.e., the date the Supreme Court denied petitioner's certiorari petition on direct appeal. Beard v. Banks, 542 U.S. 406, 411-12, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004)(recognizing a state criminal conviction ordinarily becomes final for Teague purposes when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely filed petition for certiorari has been denied); Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953 ("A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.").

Teague remains applicable after the passage of the AEDPA. See Horn v. Banks, 536 U.S. 266, 268-72, 122 S.Ct. 2147, 2148-51, 153 L.Ed.2d 301 (2002)(applying Teague in an AEDPA context); Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir. 2003) (recognizing the continued vitality of the Teague non-retroactivity doctrine under the AEDPA), cert. denied, 539 U.S. 979 (2003).

As of the date petitioner's conviction and sentence became final for Teague purposes no federal court had ever held a Texas criminal defendant was entitled to voir dire potential jurors in a capital case on their personal views on precisely how Texas parole law would impact their potential deliberations at the punishment phase of a capital murder trial. As is clear from the discussion of the authorities in Section IV.D. above, the Supreme Court has never held jurisdictions which do not offer the jury the option of imposing a term of life imprisonment without the possibility of parole (such as Texas at the time of petitioner's offense and trial) are constitutionally obligated to permit voir dire examination of potential jurors on precisely how their understanding of Texas parole law will impact their deliberations at the punishment phase of a Texas capital murder trial. Nor was such a holding arguably discernable based on any then-existing Supreme Court precedent. Thus, petitioner's second claim herein is foreclosed by the non-retroactivity doctrine of Teague. The new rule proposed by petitioner in his second claim herein falls within neither of the recognized exceptions to the Teague doctrine.

Even assuming the Supreme Court might one day adopt a rule imposing a duty on state courts which do not offer capital sentencing juries the option of sentencing a petitioner to a term of life imprisonment without the chance of parole to interrogate potential jurors on their personal views on how the defendant's potential parole eligibility might affect their punishment phase deliberations, that day has not yet arrived.

The Fourteenth Amendment claim asserted by petitioner in his second claim herein constitutes a proposed "new rules of criminal procedure" which the non-retroactivity rule of Teague v. Lane precludes this Court from recognizing or applying in a federal habeas context. F. Conclusions

The Texas Court of Criminal Appeals' rejection on the merits of petitioner's seventh, ninth, eleventh, thirteenth, fifteenth, seventeenth, and nineteenth points of error on direct appeal was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, motion for new trial, and direct appeal proceedings. Petitioner's second claim herein is foreclosed by the non-retroactivity doctrine of Teague v. Lane, supra.

Petitioner's second claim herein does not warrant relief under the AEDPA.

V. Voir Dire Examination of Venire Member Middleton

A. The Claim

In his sixth claim herein, petitioner argues the state trial judge erred, and violated due process principles, when he refused to allow petitioner's trial counsel to ask venire member Middleton whether she could answer the future dangerousness special issue negatively in the case of a defendant convicted of the capital murder of a young girl.⁹⁴ B. State Court Disposition

94 Amended Petition, at pp. 166-72. Petitioner's sixth claim herein consists primarily of a verbatim recitation of the petitioner's twenty-third point of error on direct appeal, i.e., a wholly state-law complaint about the trial court's sustaining of the prosecutor's objection to a particular question petitioner's trial counsel directed to venire member Middleton. As explained above, insofar as petitioner urges a claim herein based exclusively upon the Texas Constitution, that claim is non sequitur. See note 84, supra.

During the voir dire of venire member Kimberly R. Middleton, the following exchanges occurred:

Q. That's fine. Can you imagine a set of circumstances, set of facts where you would find a person guilty of capital murder, of killing a young girl where you would answer question number one no if you thought that that is the kind of case that was --
THE COURT: Well, just disregard the -- that clause, killing of a young girl. Now counsel -- go ahead, Mr. Lee.
MR. LEE: We'll object on the basis that Mr. Garcia is trying to commit the juror to a specific course of action or a specific set of facts.
THE COURT: Sustained.
Q. (BY MR. GARCIA) Can you imagine a set of circumstances where, after you found a person guilty of capital murder from whatever facts were presented to you, that you could answer the question number one no?
A. I'm sure that I could, yes.
Q. And would you do so?
A. Yes, I would.⁹⁵

95 S.F. Trial, Volume 6, voir dire examination of Kimberly R. Middleton, at pp. 244-25.

Petitioner did not challenge venire member Middleton for cause but did employ a peremptory challenge against her.⁹⁶

96 Id., at pp. 247-48. More specifically, petitioner employed the defense's second peremptory challenge against venire member Middleton. Id.

As his twenty-third point of error on direct appeal, petitioner argued the state trial court erroneously, under Texas constitutional and Texas statutory principles, precluded his trial counsel from inquiring of Ms. Middleton regarding her ability to answer the first Texas capital sentencing issue, i.e., the future dangerousness special issue, negatively in the case of the capital murder of a young child.⁹⁷

97 Appellant's brief, at pp. 86-89. At no point in his twenty-third point of error did petitioner refer or allude to any federal constitutional principle or federal legal authority.

The Texas Court of Criminal Appeals rejected on the merits petitioner's purely state-law twenty-third point of error on direct appeal:

In his twenty-third point of error, appellant complains that the trial court erred when it prohibited him from asking a venireperson whether she could answer the future dangerousness issue "no" if the defendant had just been convicted of the capital murder of a young girl. Specifically, the following occurred:

[By defense counsel] Q. That's fine. Can you imagine a set of circumstances, set of facts where you would find a person guilty of capital murder, of killing a young girl where you would answer question number one no if you thought that that is the kind of case that was-
THE COURT: Well, just disregard the-that clause, killing of a young girl. Now

counsel-go ahead, [prosecutor].
[By the prosecutor]: We'll object on the basis that [defense counsel] is trying to commit the juror to a specific course of action or a specific set of facts.
THE COURT: Sustained.

Without further comment to the court, defense counsel rephrased his question and asked it again.
As we explained in Standefer, a commitment question is one which seeks to "commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Further, such a question is proper only when it includes such facts, and only those facts, that lead to a challenge for cause.
The question that appellant wanted to ask the venireperson sought to commit her to a particular answer after learning a particular fact. Thus, as phrased, it was a commitment question. Further, that a defendant has been convicted of the capital murder of a young girl is a factor that a juror could consider in determining punishment. However, the law does not require the juror to consider the factor or to give it any weight. Therefore, regardless of her answer to the specific question asked, the prospective juror would not have been subject to a challenge for cause. The trial court did not err in refusing to allow appellant to ask an improper commitment question. Point of error twenty-three is overruled.

Sells v. State, 121 S.W.3d at 757-58 (Footnotes omitted). C. Procedural Default on Unexhausted Federal Claim

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. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. §2254(b)(1). 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. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner "fairly presents" a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O'Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State's established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, 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 and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief).

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, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. at 179, 121 S.Ct. at 2128; O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).

Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir. 2003)("28 U.S.C. § 2254(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court."), cert. denied, 543 U.S. 835 (2004); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir. 2003)("Absent special circumstances, a federal habeas petitioner must exhaust his state remedies by pressing his claims in state court before he may seek federal habeas relief."), cert. denied, 540 U.S. 956 (2003). However, Title 28 U.S.C. §2254(b)(2) empowers a federal habeas court to deny an unexhausted claim on the merits. Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002), cert. dism'd, 541 U.S. 913 (2004); Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir. 2002), cert. denied, 537 U.S. 874 (2002).

The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995), cert. denied, 516 U.S. 1050 (1996); 28 U.S.C. §2254(b)(1)(A).

In order to "exhaust" available state remedies, a petitioner must "fairly present" all of his claims to the state courts. Duncan v. Henry, 513 U.S. at 365, 115 S.Ct. at 888; Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Kunkle v. Dretke, 352 F.3d at 988; Shute v. State of Texas, 117 F.3d at 237 ("a habeas petitioner 'must fairly apprize [sic] the highest court of his state of the federal rights which were allegedly violated.'"). In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Petitioner has never "fairly presented" to any state court his new, Fourteenth Amendment, "due process" challenge to the state trial court's ruling sustaining the prosecution's objection to petitioner's trial counsel's hypothetical question to venire member Middleton.

The exhaustion doctrine requires that the petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address same. The exhaustion requirement is satisfied when the substance of the federal habeas claim has been "fairly presented" to the highest state court, i.e., the petitioner presents his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (holding a petitioner failed to "fairly present" a claim of ineffective assistance by his state appellate counsel merely by labeling the performance of said counsel "ineffective," without accompanying that label with either a reference to federal law or a citation to an opinion applying federal law to such a claim).

Respondent correctly points out the Fourteenth Amendment due process gloss petitioner has added in his sixth claim herein (to what is essentially petitioner's twenty-third point of error on direct appeal) has never been presented to any state court and is, therefore, unexhausted. See Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001)(holding neither a fleeting reference to the federal constitution, tacked on to the end of a lengthy, purely state-law argument nor a vague reference to such expansive concepts as "due process" or "fair trial" "fairly presents" the state court with a federal constitutional claim); Bartee v. Quarterman, 574 F.Supp.2d 624, 659 (W.D. Tex. 2008)(holding the same), CoA denied, 339 Fed. Appx. 429 (5th Cir. July 31, 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1882, 176 L.Ed.2d 370 (2010).

Respondent is also correct that petitioner's federal constitutional "due process" complaint about the trial court's ruling during venire member Middleton's voir dire examination, presented in this Court for the first time, is procedurally defaulted. See Hughes v. Dretke, 412 F.3d 582, 594-95 (5th Cir. 2005)(holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments), cert. denied, 546 U.S. 1177 (2006); Beazley v. Johnson, 242 F.3d 248, 264-68 (5th Cir. 2001)(holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application), cert. denied, 534 U.S. 945 (2001); Hicks v. Johnson, 186 F.3d 634, 637-38 (5th Cir. 1999)(petitioner procedurally defaulted on an unexhausted claim for relief), cert. denied, 528 U.S. 1132 (2000).

The Supreme Court's recent holding in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, ___ L.Ed.2d ___ (2012), carved out of the Supreme Court's procedural default jurisprudence a narrow exception for claims of ineffective assistance by trial counsel which were not raised in convicted criminal defendant's a state habeas corpus proceeding because of the deficient performance of the defendant's state habeas counsel. See Martinez v. Ryan, ___ U.S. at ___, 132 S.Ct. at 1315 ("Inadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial). Petitioner's sixth claim herein does not present a complaint of ineffective assistance by his trial counsel. On the contrary, petitioner's sixth claim herein is an attempt to add a federal constitutional gloss to a garden variety complaint about the trial court's ruling on a state-law procedural matter committed by state procedural rules to the discretion of the trial court. D. Teague Foreclosure

For reasons similar to those set forth in Section IV.E. above, petitioner's sixth claim herein is foreclosed by the non-retroactivity doctrine of Teague v. Lane, supra. At the time petitioner's conviction became final no federal court had ever held that state courts are constitutionally required to permit a criminal defendant to commit potential jurors to a particular verdict based upon a specific hypothetical set of facts. That is precisely what petitioner's trial counsel attempted to do to Ms. Middleton. As of this date, no federal court has adopted such a rule. In fact, adoption of such a rule would stand the constitutional principle that a criminal defendant is entitled to trial before an impartial jury on its head. There is no legal authority for the principle underlying petitioner's sixth claim herein, i.e., that petitioner possessed a constitutional right to a jury composed of citizens who agreed in advance to consider particular evidence in a manner acceptable to the defense. E. Alternatively, No Merit on De Novo Review

Title 28 U.S.C. Section 2254(b)(2) authorizes this Court to deny relief on an unexhausted claim.

Because no state court has ever addressed the merits of the federal constitutional portion of petitioner's sixth claim herein, this court's review of that federal constitutional claim is necessarily de novo. See Porter v. McCollum, ___ U.S. ___, ___, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009)(holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005)(holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice).

To be constitutionally compelled, it is not enough that requested voir dire questions might be helpful. Rather, the trial court's failure to ask (or permit counsel to ask) the questions must render the defendant's trial fundamentally unfair. Morgan v. Illinois, 504 U.S. at 730 n.5, 112 S.Ct. at 2230 n.5; Mu'Min v. Virginia, 500 U.S. at 425-26, 111 S.Ct. at 1905.

The Texas Court of Criminal Appeals concluded the question petitioner's trial counsel directed to Ms. Middleton at issue in petitioner's sixth claim herein was improper because, regardless of how she answered same, she would not have been subject under applicable state law to a challenge for cause. Sells v. State, 121 S.W.3d at 758. This Court is not free to second-guess the state habeas court's interpretation of applicable state law. The Texas Court of Criminal Appeals' constructions of state law in the course of petitioner's direct appeal and state habeas corpus proceeding are binding on this Court in this federal habeas corpus proceeding. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005)("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009)(a state court's interpretation of state law binds a federal court sitting in habeas corpus), cert. denied, ___ U.S. ___, 131 S.Ct. 1050, 178 L.Ed.2d 870 (2010).

As respondent correctly point out, the Fifth Circuit has recognized "a voir dire question that 'in effect asked the jury how it would weigh evidence it had not heard' would 'not be a proper line of inquiry.'" United States v. Fambro, 526 F.3d 836, 848 (5th Cir.), cert. denied, 555 U.S. 1050 (2008). The dual purposes of voir dire are (1) to enable the court to discern bias and prejudice in prospective jurors and (2) to assist counsel in exercising peremptory challenges. Mu'Min v. Virginia, 500 U.S. at 431, 111 S.Ct. at 1908; United States v. Fambro, 526 F.3d at 848.

Petitioner has identified no federal legal authority mandating voir dire examination which commits venire members to return a particular verdict based upon a hypothetical fact situation. Nor has this Court's independent research identified any such authority, much less any clearly established Supreme Court precedent mandating such a strange outcome.

Petitioner's trial counsel was permitted to ask Ms. Middleton whether she could imagine a set of circumstances under which she could answer the future dangerousness special issue negatively after convicting a defendant of capital murder.⁹⁸ Petitioner's trial counsel was also permitted to explore in detail with Ms. Middleton the circumstances under which she could return an affirmative answer to the mitigation special issue after finding a defendant guilty of capital murder.⁹⁹ Moreover, petitioner did not make a challenge for cause to Ms. Middleton and she did not serve on petitioner's petit jury. It is inappropriate to require potential jurors during voir dire to weigh evidence they have not heard or to commit to render a particular verdict based upon a hypothetical set of facts. Soria v. Johnson, 207 F.3d 232, 243-44 (5th Cir.)(holding it was improper for party to attempt during voir dire to bind a prospective juror regarding his or her position on the evidence), cert. denied, 530 U.S. 1286 (2000); Green v. Johnson, 160 F.3d 1029, 1036 n.4 (5th Cir. 1998)(discussing the distinction under Texas law between using proper hypothetical fact situations to explain the application of law and making improper inquiries into how a venire member would respond to particular circumstances), cert. denied, 525 U.S. 1174 (1999). Under such circumstances, the state trial court's refusal to permit petitioner's trial counsel to force Ms. Middleton to commit to an answer to the future dangerousness special issue based upon a specific set of hypothetical facts did not render petitioner's trial fundamentally unfair. F. Conclusions

98 S.F. Trial, Volume 6, voir dire examination of Kimberly R. Middleton, at pp. 244-45.

99 Id., at pp. 246.

Petitioner procedurally defaulted on the federal aspect of his sixth claim herein by failing to "fairly present" his federal constitutional claim to the Texas Court of Criminal Appeals either on direct appeal or in any of petitioner's multiple state habeas corpus proceedings.

Insofar as petitioner seeks federal habeas corpus relief from this Court based upon the same state-law complaints he raised in his twenty-third point of error on direct appeal, his sixth claim is without arguable merit. Federal habeas relief does not lie to correct errors of purely state procedural or substantive law.

The legal argument underlying petitioner's sixth claim herein, i.e., that petitioner possessed a constitutional right to commit a potential juror to a particular punishment phase verdict based upon a hypothetical set of facts, would be a new rule of federal constitutional criminal procedure and is foreclosed from adoption in this federal habeas corpus proceeding by the Supreme Court's holding in Teague v. Lane, supra.

Alternatively, petitioner's federal constitutional aspect of his sixth claim herein lacks any arguable merit. Petitioner's trial counsel was permitted to interrogate venire member Middleton regarding her ability to answer both of the Texas capital sentencing special issues in a manner favorable to petitioner after finding petitioner guilty of capital murder. The inability of petitioner's trial counsel to pin Mr. Middleton down to a specific answer to the future dangerousness special issue based a particular hypothetical set of facts did not render petitioner's trial fundamentally unfair.

Petitioner's sixth claim herein does not warrant federal habeas corpus relief.

VI. Denial of Petitioner's Challenges for Cause

A. The Claims

In his fourth and fifth claims herein, petitioner argues the state trial court erroneously denied his challenges for cause to two members of the jury venire, specifically venire members Urbano Gonzalez and Gregory Sedbrook, in violation of petitioner's federal constitutional rights.¹⁰⁰ B. State Court Disposition

100 Amended Petition, at pp. 157-66.

1. Voir Dire Examination of Urbano Gonzalez

During the course of voir dire examination by petitioner's trial counsel, venire member Urbano Gonzalez testified in pertinent part as follows:

Q. And the issues that they are going to be asking, you would answer those honestly, wouldn't you?
A. Yes, sir.
Q. See, because you only get to these questions if you find a person guilty of capital murder. If it is just murder then it is something else, and I'll talk about that late, but in a capital murder case if you found

that person guilty you have to look at question number one.
Now, that question has already been explained to you. Is this person going to be a danger in the future? If you found the person guilty of capital murder, Mr. Gonzalez, would you automatically believe and find that that person is going to be a danger in the future? Would you answer that question yes automatically?
A. I think yes, because if somebody does something you never know if they are going to do it again, so it is going to be in your mind. It is going to be like a threat to society, or if you live in a town you would never know if it is going to happen. If he's done it one time you never know if he's going to change.
Q. So you are of the thinking that is a person did it once, he's going to do it again?
A. I guess so.
Q. Okay. So you would automatically look at question number one and say yes?
THE COURT: Regardless of the evidence in the case?
THE VENIREMAN: Regardless of the evidence? I would say yes.
THE COURT: No matter what the evidence was?
THE VENIREMAN: Yes.
Q. (BY MR. GARCIA) Now, if a jury -- if the jury that you are on, not this case but another jury finds him guilty of capital murder, guilty of killing somebody, and you find that yes, he's going to be a danger in the future, and as you said, yes, he's going to do it again, or there is a probability that he's going to do it again, and you look at question number three and they are asking you should this person serve life or does this person deserve the death penalty, would you automatically say that question number three should be answered no, that he should get the death penalty automatically because you already found him guilty?
A. If they found him guilty found the evidence and everything?
Q. If you found him guilty. All I want to know, Mr. Gonzalez -- maybe I'm confusing you. I just want to know if you automatically, without considering the evidence, no matter what the evidence says, if you would answer that question no just because you have already found him guilty of capital murder and you already found he's going to be a threat in the future, would you automatically, always say question number

three should be answered to be no, and in fact he gets the death penalty?
A. Well, that's kind of confusing. Number three, if you find him from the evidence -- I would say yes if that's from the evidence.
Q. Okay. But would you always say that no matter what the evidence is?
A. Well, it all depends about the things that are involved.
Q. Okay. Can you picture in your mind a case where a person was found guilty of capital murder and a person who you found is going to be a threat in the future, can you envision something about that person or that case in your mind right now that you would say that person might deserve a life sentence? You don't have to tell me what it is, but can you think of something like that?
A. Yeah. I can think of something like that.¹⁰¹

101 S.F. Trial, Volume 11, voir dire examination of Urbano Gonzalez, at pp. 33-36.

Later, when Mr. Gonzalez was questioned by the prosecutor and trial judge, the following exchanges occurred: QUESTIONS BY MR. LEE:

Q. Just want to ask one question or cover one subject. That's about your answer concerning question number one up here, and you indicated that -- I believe that you indicated that you would have a tendency to answer that question yes; having convicted the defendant of capital murder you would automatically have a tendency to answer that question yes, is that what you are saying.
A. Yes,
Q. Okay. Now, you understand that the State carries the burden of proof to prove that beyond a reasonable doubt, to prove there is a probability he would commit future acts of dangerousness [sic], do you understand?
A. Yes, I understand.
Q. It doesn't mean, of course, that all the evidence you have heard in the case can't be part of the evidence you make that decision with, do you see what I'm saying?
A. Yes, I understand what you are saying.

Q. And basically what you are saying is, if it is shown that he committed these violent criminal acts in the case on trial that would be pretty strong evidence to you that he would commit future acts of dangerousness [sic]?
A. Yes.
Q. Is that what you are saying?
A. (Nods affirmatively).
Q. Could you, Mr. Gonzalez, before answering that question yes or no, consider all of the evidence you have heard and then make your judgment based on that evidence?
A. If I have to decide?
Q. Yes, you as a juror would have to decide the question, yes or no.
A. Yes.
Q. What I'm asking you is, would you consider everything you heard in the case before you answered that question?
A. Yes, I understand what you are saying. Yeah, I should say yes.
Q. You would?
A. Uh-huh.
MR. LEE: We have no further questions.
MR. GARCIA: Nothing further, Your Honor.
THE COURT: You made that statement on Mr. Lee's examination, I believe you said when they were questioning you about how you would answer number one if it would be automatic, did you say that a person that did it once would do it again?
THE VENIREMAN: Yeah.
THE COURT: Do you remember saying that?
THE VENIREMAN: Yes, I remember saying that.
THE COURT: And you think that's true in every case?
THE VENIREMAN: In every case? Well, not in every case. It depends on the case. I have to weigh the evidence and everything.
THE COURT: Have to weigh all the evidence?
THE VENIREMAN: Have to weigh the evidence and the witnesses and everything, but not -- like you say, not in every case.
THE COURT: Okay. Well, you step outside and just wait for a moment outside the courtroom and I'll see what further instructions I have for you.
THE WITNESS: Okay.
(Venireman excused.)
MR. LEE: State will accept the juror.

MR. GARCIA: Your Honor, we would challenge Urbano Gonzalez in reference to 35.16, subsection c in reference to the answers to the questions that were consistently -- where it involved the young victim, and he started talking about how the death penalty would be appropriate, talked about him in question and answer number one that he said -- his words were if he did it once he'll do it again, and answer that question yes. Then it got down to question number three. I believe consistently the totality of his answers was [sic] that if he found a person guilty and a future danger he would always vote for the death penalty. We feel that under those circumstances that he is not going to follow the law that we're entitled to rely on, and that's for him to consider separately the punishment phase of the trial instead of just being an automatic answer to question number one. He appeared at times not to understand the concepts of how his questions would affect the ability of this court to either give a life or death sentence, so we would challenge him on those grounds.
THE COURT: The challenge will be overruled.
MR. GARCIA: We'll use our next strike.¹⁰²

102 Id., at pp. 38-41.

2. Voir Dire Examination of Gregory Sedbrook

Under questioning by the prosecution, venire member Sedbrook testified in pertinent part as follows: QUESTIONS BY MR. LEE:

Q. * * * The first question up is the one at the top of the board, and it will ask whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. That's what we call the future dangerousness issue, and basically it just has the jury, you know, to [sic] answer is this person probably going to commit more acts of violence and be a danger to society, and the State carries the burden of proof on that question, and we have to prove that beyond a reasonable doubt in order for the jury to answer the question yes. Now, my question to you would be, if you were on a jury in a capital murder case, and you were

having to answer that question, and after you have received all of the evidence and you looked at the evidence and you believed that it had been proved beyond a reasonable doubt that the defendant would commit future acts of violence, could you answer that question yes?
A. Are you asking to assess the death penalty?
Q. No, just asking you if you could answer the question yes or no?
A. Yes, sir.
Q. And if you thought the question should be answered yes, could you answer the question yes?
A. Yes, sir.
Q. But if you thought that the answer should be no, that the State had not met its burden of proof, could you answer that question no?
A. Yes, sir.
Q. Now, if the jury answers question number one yes, then they move on and answer question number three. Under question three it is -- it asks the jury top determine 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 a sentence of life imprisonment rather than the death sentence be imposed. Do you follow what the question is asking.
A. Yes, sir.
Q. That is the last step in the process. The jury is told to look at all the evidence in the case, and I want to also make it clear there is no burden of proof on this question. It is just whatever the jury believes, and if that jury looks at all the facts in the case and they think -- and they say no, there is no mitigating factor in this case that would justify a life sentence, then they would answer it no, okay? But if they look at the question and they say yeah, there is a factor in this case that would mitigate or lessen the impact of what the sentence should be, and he should get a life sentence, do you see what I'm saying? In that circumstance they would answer it yes. My question to you is, could you answer it yes or no depending upon the facts you see?
A. Yes, sir.
Q. If you thought the facts said that there is a circumstance that would mitigate the punishment then you could answer it yes?

A. Yes, sir.
Q. And on the other hand, if you thought there was no factor then you could answer it no?
A. Right.
Q. Would you be able to follow the evidence you hear, Mr. Sedbrook, and answer those questions based upon the evidence?
A. Yes, sir, I believe so.
Q. All right. Now, let me tell you the effect of those answers. If the jury answers question number one no, there is no probability of future dangerousness, then that is where the case ends right there, and the judge will assess a life sentence, but if they answer question number one yes, then they move on and answer question number three. If they look at question number three and they answer that question yes, there is a mitigating factor that will justify a life sentence, then again, that's the end of the case and the judge assesses a life sentence, but on the other hand, if they look at the evidence and they say there is no mitigating factor in this case to justify a life sentence instead of a death sentence, then they answer that question no. At that point the judge must impose the death sentence. You see what I'm saying?
A. Yes, sir.
Q. What I have to ask you is, would you have any tendency to answer those questions in a certain way just so you could get a certain result such as a life sentence or a death sentence?
A. No, sir.
Q. Then you would answer and be led by the evidence and answer them according to what you think the evidence indicates the way they should be answered?
A. Yes, sir.¹⁰³

103 S.F. Trial, Volume 16, voir dire examination of Gregory Sedbrook, at pp. 68-71.

Under questioning by petitioner's trial counsel, Mr. Sedbrook testified in pertinent part as follows: QUESTIONS BY MR. GARCIA:

Q. In listening to your answers, I listened to answers that in question number one, the question was, are you asking if I can give the death penalty, is that

something that you feel that when a person takes the life of another person that they should get the death penalty?
A. Not necessarily. I mean, I just -- I didn't know exactly6 what Mr. Lee was asking, so that's why I asked.
Q. Do you feel that when a person kills once they are going to kill again?
A. I'm not sure about that. I guess that would depend on the evidence and so forth. I mean, I don't have a set -- set decision or answer on that.¹⁰⁴

* * * * *
Q. In line with that, when a person is found guilty of capital murder, let's say in a hypothetical you are in a group, and you found a person guilty of capital, and there is only two possible sentences. One is life and one is death. What does life mean to you when we're talking about --
A. I would assume that individual would spend the rest of his given life in prison. There would be no ever leaving prison.
Q. Okay. Now, in the charge that a juror would get in any criminal case, especially in a capital murder case, there is a paragraph that says that Texas has a parole system. However, you are also instructed that you are not to consider how parole would affect a person's sentence, so at the same time they tell you it exists, they tell you don't think about it. Do you think that in your decision of -- under your definition of what you feel a life sentence is, if -- could you follow the law that would tell you to disregard anything having to do with parole?
A. Yes, sir, I think I could.
Q. In light of that, if you were on a jury that found a person guilty of capital murder, would you have a tendency to look at question number one, and in trying to decide if this person is going to be a danger in the future to answer that question yes based on your finding of him guilty of killing one?
THE COURT: Solely on that finding.
THE VENIREMAN: No, sir. At first I didn't understand exactly what you were saying but I do now.
Q. (BY MR. GARCIA) When you saw the word probability, can you tell me if there is a difference between

probability and possibility in your mind, a different meaning?
A. I guess they would mean just about the same thi8ng to me.
Q. Do you -- okay. When you looked at the word society, what were you thinking about when you -- was this person going to be a threat in the future to society? What is your definition of society?
A. All of us. I mean, all individuals.
Q. Can you envision that behind the prison walls could be a type of society?
A. Oh, yes.
Q. And in answer to question number one, keeping in mind that that person could well spend the rest of his life in prison if he doesn't get the death sentence, would that be a society that you could envision in answering question number one?
A. If you are asking if I believe the people in prison ate the same as us, well, I mean, they are individuals. They are human beings. I guess I don't fully understand what you are saying.
Q. Well, I guess the point is a little more blunt. You know, in answering question number one, would you consider whether those persons are going to commit acts of violence in prison?
A. I'm not sure about that one, I guess. To me when I saw society I guess we all kind of feel -- or I feel like it is people that are outside of the prison.
THE COURT: No, that's not necessarily the meaning of the term. It can be person's environment.
Q. (BY MR. GARCIA) Okay. And then I guess if you are on a jury as a hypothetical, not talking about this case, and you found that person guilty of capital murder, and you and eleven other jurors all agreed that that person would also be a continuing threat to society in the future, you answered question number one yes, would you have a tendency to look at question number three that's asking you to look at everything all over again and just answer that question no just based on your finding to number one?
A. I would think that -- I would hope that I would -- and feel like I would take and consider everything that is -- question three is asking to decide that answer.
Q. But would you have a tendency to answer it no just based on --
A. No, I don't believe so.
Q. When there is a punishment to be assessed the code provides that there is [sic] four reasons that people

get punished. There may be others, but you know, I'm going to give them to you and you tell me what order you think they are more important to you. The first one is that people get put in the penitentiary to rehabilitate them. Second one is people get put in the penitentiary to protect society. Third one, people get put in the penitentiary to deter others from committing same or similar crime, and fourth, punishment, punish them, eye for an eye. I know that's not the complete meaning but just -- they need punishing, period. Of those four, rehabilitate, protect, to deter or to punish, which do you feel is more important to you?
A. I guess to protect.
Q. To protect society? What would you put next?
A. Punishment.
Q. Punishment? Okay.
MR. GARCIA: Thank you very much.
THE COURT: Mr. Garcia asked you if there is any difference between possibility and probability, and I think your answer was they are about the same thing. There is a difference, you understand, between something being probable and something being possible. Can you explain how you understand those terms now? He just dropped it there, but the distinction between something being possible and something being probable --
THE VENIREMAN: I guess anything is possible, but to be probable there would have to be some indicators or some evidence, something I suppose to make something --
THE COURT: More likely than not?
THE VENIREMAN: Yeah,
THE COURT: Okay. Anything further?
MR. LEE: No, sir.
THE COURT: Okay. You can step down, Mr. Sedbrook, and we'll have you back in, in just a moment to see what your further instructions are.
(Venireman excused.)
MR. LEE: State will accept the juror.
MR. GARCIA: Your Honor, we would challenge in reference to -- again as to the prior juror, his meaning of possibility and probability, about the same, and even after the court explained to him that I feel that his feelings are they would be the same, and we're entitled to have him give the burden of probability, and also he could not consider that society would be the penitentiary. We're entitled to have him under

35.16 (c), be able to follow that, be able to give us the benefit of that law.
THE COURT: Overruled.
MR. GARCIA: We'll strike him.¹⁰⁵

104 Id., at pp. 74-75.

105 Id., at pp. 76-81.

3. Direct Appeal

Petitioner challenged the denial of his challenges for cause to venire members Gonzalez and Sedbrook in his twentieth and twenty-second points of error on direct appeal. Petitioner presented purely state-law legal arguments in support of his twentieth and twenty-second points of error on direct appeal challenging the trial court's denials of his challenges for cause to these same two venire members.¹⁰⁶ The Texas Court of Criminal Appeals rejected these state-law complaints on the merits:

106 Appellant's Brief, at pp. 75-79, 83-85. Respondent correctly points out these two points of error on direct appeal were phrased exclusively in terms of alleged violations of state law. Nothing in petitioner's appellant's brief discussing either of those two points of error "fairly presented" the state appellate court with a federal constitutional claim.

When the trial judge errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Because the record reflects that appellant received an extra peremptory challenge in addition to the fifteen he was granted by statute, appellant can demonstrate harm only by showing that both of his complained-of challenges were erroneously denied. Feldman, 71 S.W.3d at 743-45; Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim. App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).
A defendant may properly challenge any prospective juror who has a bias or prejudice against any phase of

the law upon which he is entitled to rely. When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the trial court's ruling. The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Finally, the proponent of a challenge for cause has the burden of establishing his challenge is proper. The proponent does not meet his burden until he has shown that the venireman understood the requirements of the law and could not overcome his prejudice well enough to follow it.
In point of error twenty-two, appellant complains about prospective juror Sedbrook. Specifically, he complains that the trial court erred in denying his challenge to Sedbrook because the prospective juror "was biased against the law that 'society' comprises persons inside prison." Specifically, appellant bases his claim on the following exchange:

Q. [By defense counsel] You know, in answering [the future dangerousness question], would you consider whether those persons are going to commit acts of violence in prison?
A. [Venireperson] I'm not sure about that one, I guess. To me when I saw society I guess we all kind of feel-or I feel like it is people that are outside of the prison.
THE COURT: No, that's not necessarily the meaning of the term. It can be the person's environment.

We must look at this exchange in the context of the entire conversation. Just prior to the above-quoted exchange, defense counsel asked Sedbrook for his definition of society. Sedbrook responded that society meant all individuals. When counsel asked Sedbrook if he could envision a type of society existing behind prison walls, Sedbrook said that he could. This was the extent of the conversation regarding the definition of society. After the judge's brief comment that society did not necessarily mean just the people outside of the prison, Sedbrook was never asked whether

he could follow any instructions the judge gave him regarding the term.
Given the record, appellant has failed to meet his burden of showing that the law was explained to the venireperson, or that the venireperson was asked whether he could follow that law regardless of his personal views. As such, we cannot say that the trial judge erred in denying appellant's challenge for cause to veniremember Sedbrook. Point of error twenty-two is overruled. Because the trial court did not err in denying appellant's challenge to Sedbrook, appellant cannot show on appeal that both of his complained-of challenges for cause were erroneously denied. Thus, he cannot show harm. Points of error twenty and twenty-one are overruled.

Sells v. State, 121 S.W.3d at 758-59 (Footnotes omitted). C. Procedural Default on Unexhausted Federal Claims

For the same reasons discussed at length in Section V.C. above, petitioner has failed to exhaust available state remedies on his federal constitutional claims premised upon the denial of his challenges for cause to venire members Gonzalez and Sedbrook. The only legal complaints petitioner "fairly presented" to the Texas Court of Criminal Appeals arising from the denial of his challenges for cause to these venire members were phrased exclusively in terms of state law principles. Nothing in petitioner's Appellant's Brief reasonably or logically alerted the state appellate court to any argument suggesting the denial of petitioner's challenges for cause to these two venire members violated federal constitutional principles. See Wilder v. Cockrell, 274 F.3d at 260 (holding neither a fleeting reference to the federal constitution, tacked on to the end of a lengthy, purely state-law argument nor a vague reference to such expansive concepts as "due process" or "fair trial" "fairly presents" the state court with a federal constitutional claim). Despite having filed three state habeas corpus applications, petitioner has never presented any state habeas court with his federal constitutional claims premised upon the denial of his challenges for cause to venire members Gonzales or Sedbrook.

By failing to "fairly present" the Texas Court of Criminal Appeals with any federal constitutional claim arising from the denial of petitioner's challenges for cause to venire members Gonzalez or Sedbrook, petitioner has procedurally defaulted on his fourth and fifth claims herein. See Hughes v. Dretke, 412 F.3d at 594-95 (holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments); Beazley v. Johnson, 242 F.3d at 264-68 (holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application). D. Alternatively, No Merit on De Novo Review

1. State Law Complaints Do Not Furnish a Basis for Relief

Insofar as petitioner attempts to assert the same state-law claims he raised in his twentieth and twenty-second points of error on direct appeal as grounds for federal habeas relief herein, that effort is foreclosed by the well-settled principle that federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102 (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874 (holding a federal court may not issue the writ on the basis of a perceived error of state law).

2. De Novo Review of Unexhausted Federal Claims

The portion of petitioner's amended petition setting forth his fourth and fifth claims herein contains cryptic references to the Supreme Court's holdings in Morgan v. Illinois, supra, and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Morgan addressed a due process challenge to voir dire in an Illinois capital trial and Jurek addressed the validity of the Texas capital sentencing scheme under the Eighth Amendment.

Petitioner has never fairly presented either of these Fourteenth Amendment or Eighth Amendment claims to any state court. Because no state court has ever entertained, much less addressed, the merits of petitioner's federal constitutional claims challenging the denial of his challenges for cause to venire members Gonzales and Sedbrook, this Court's review of same is necessarily de novo. See Porter v. McCollum, ___ U.S. at ___, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. at 24 67 (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice).

3. No Fourteenth Amendment Due Process Violation

As was explained above, Morgan addressed a Fourteenth Amendment due process challenge to voir dire conducted in an Illinois capital murder trial and held the state trial court was required to question potential jurors (or permit trial counsel to do so) in a manner reasonably calculated to disclose whether the potential jurors would automatically vote to impose the death penalty based upon the fact of conviction regardless of the existence of any mitigating evidence in the record. Morgan v. Illinois, 504 U.S. at 738, 112 S.Ct. at 2235 ("Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty."). Petitioner does not allege any specific facts showing that his ability to voir dire either venire member Gonzalez or venire member Sedbrook was improperly circumscribed.

Insofar as petitioner's cryptic fourth and fifth claims herein can be construed as arguing the failure of the state trial court to grant either of petitioner's challenges for cause to venire members Gonzalez or Sedbrook violated federal due process principles, this Court's independent review of the entirety of the voir dire examination of those two venire members belies any such contention.

Petitioner's trial counsel objected to venire member Sedbrook based upon Mr. Sedbrook's alleged inability to distinguish between the terms "probability" and "possibility" and Mr. Sedbrook's alleged inability to consider those persons within Texas prisons as members of the society referenced in the Texas capital sentencing scheme's future dangerousness special issue. Both of these objections lacked merit. As the excerpts from Mr. Sedbrook's voir dire examination quoted at length above amply demonstrate, under questioning by the trial court, Mr. Sedbrook explained that he understood the term "probability" to mean more likely than not and agreed that persons within prison were entitled to be considered members of society.¹⁰⁷

107 See note 105, supra, and accompanying text.

Petitioner's trial counsel objected to venire member Gonzalez based upon Mr. Gonzalez's alleged tendency to automatically answer the future dangerousness special issue affirmatively based solely upon the defendant's conviction for capital murder. However, as the excerpts from Mr. Gonzalez's voir dire examination quoted at length above make clear, under questioning by the trial court, Mr. Gonzalez testified he did not believe proof of capital murder, standing alone, would necessarily warrant a finding of future dangerousness in every case.¹⁰⁸

108 See note 102, supra, and accompanying text.

To the extent the state trial court's overruling of petitioner's challenges for cause to venire members Gonzalez and Sedbrook reflected implicit credibility determinations based upon the contradictory testimony given by those vacillating venire members, the state trial court was in position to examine first hand the demeanor of both venire members. Even under pre-AEDPA case law, a state trial court's rulings on the credibility of potential jurors are entitled to special deference from this Court in a federal habeas corpus proceeding. See, e.g., Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984)(recognizing a presumption of correctness applies to a trial court's factual findings (which are essentially credibility determinations) regarding whether a venire member possessed disqualifying bias). Under the AEDPA, specifically Section 2254(e)(1), these implicit factual findings are presumed correct. Wood v. Allen, ___ U.S. ___, ___, 130 S.Ct. 841, 843, 175 L.Ed.2d 738 (2010)(a determination of a factual issue made by a state court is presumed correct and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence); Chester v. Thaler, 666 F.3d 340, 348 (5th Cir. 2011)(holding the same); Richards v. Quarterman, 566 F.3d 553, 563 (5th Cir. 2099)(holding a state court's factual findings, including credibility determinations, are entitled to the presumption of correctness under Section 2254(e)(1)); Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006)(holding the same), cert. denied, 549 U.S. 1343 (2007). Having independently reviewed the entirety of the voir dire examinations of venire members Gonzalez and Sedbrook,¹⁰⁹ this Court concludes the state trial court's implicit factual findings that both venire members lacked disqualifying bias were objectively reasonable and fully supported by the record before that court. Petitioner has failed to present this Court with clear and convincing evidence establishing that either venire member Gonzales or venire member Sedbrook possessed disqualifying bias.

109 Despite the extraordinary amount of time this Court held this cause in abeyance to permit petitioner to return to state court and develop new claims, petitioner did not furnish this Court with copies of the juror questionnaires completed by either venire members Gonzalez or Sedbrook.

Moreover, petitioner exercised peremptory challenges against both venire members Gonzalez and Sedbrook. Neither venire member served on the jury at petitioner's capital murder trial.

Petitioner argues that because he was forced to employ peremptory challenges against venire members Gonzalez and Sedbrook, he was forced to accept a biased juror, venire member "Pedro Urdales" [sic].¹¹⁰ This Court has undertaken an independent review of the entirety of juror questionnaire and the entire voir dire examination of juror Pedro Vidales and concludes the state trial court reasonably determined juror Vidales possessed no disqualifying bias.¹¹¹ The state trial court's implicit factual determination, based in part the state trial court's first-hand observation evaluation of juror Vidales' demeanor and credibility during voir dire examination, is presumed to be correct. Coleman v. Quarterman, 456 F.3d at 541; 28 U.S.C. §2254(e)(1).

110 Amended Petition, at pp. 162-63.
For unknown reasons, the verbatim transcription from the voir dire portion of petitioner's trial indicates the spelling of the last name of the juror in question was "Urdales." See S.F. Trial, Volume 17, voir dire examination of Pedro Urdales [sic], at pp. 51-77. Even a cursory examination of the easily legible juror questionnaire reveals the correct spelling of the juror's last name is "Vidales." Trial Transcript, at pp. 237-43.

111 Juror Pedro Vidales' juror questionnaire appears herein at Trial Transcript, at pp. 237-43.

In his answers to the trial court's questionnaire, juror Vidales answered (1) "no" to a question asking whether he was opposed to the death penalty as a matter of principle; (2) "yes" to a question which asked "Do you believe that the death penalty would always be an excessively severe sentence for a person convicted of capital murder?"; (3) "no" to the question "Do you believe that Life Imprisonment would always be an excessively lenient sentence for a person convicted of capital murder?"; (4) "no" to "Would the fact that Life Imprisonment is the minimum sentence for capital murder prevent or seriously impair the performance of your duty as a juror to render a verdict according to the law and the evidence?"; and (5) "no" to "Would the fact that death is the maximum sentence for capital murder prevent or seriously impair the performance of your duty to render a verdict according to the law and the evidence?"¹¹²

112 Trial Transcript, at p. 242.

In response to general questioning by the trial court, juror Vidales testified during voir dire, in pertinent part, as follows:

THE COURT: * * * Now, the State in this case has given notice that it will seek the death penalty if the defendant is convicted of the offense of capital murder. This means that the jury would have before it when it hears all the evidence on punishment after it has found the defendant guilty of capital murder if they do so, would go into the jury room and have to answer a question or two questions. Whether it is two questions that have to be answered depends on the jury's answer to the first question.
If you will just take a moment and look at that paragraph one on the board to your left, that would be the first question to confront a juror on a conviction for a capital murder, and the way that that would be put to a juror is, do you find beyond a reasonable doubt that there is a probability -- now, that doesn't mean a chance, it doesn't mean a possibility, but it is more likely than not, a probability from all the evidence that you have heard, a probability that the defendant would commit acts of criminal violence, you know, assaults, any type of violent activity directed towards himself or another, that would constitute him a continuing threat to society. Of course, society there, what we mean by that is to [sic] the people that surround him, his environment, his peers. That could even be a penitentiary sentence where the people around him would be inmates, guards, staff, matters [sic] such as that. The burden is on the State if it is seeking the penalty of death to prove beyond a reasonable doubt that there should be a yes answer to that question from all of the evidence in the case, that yes, there is a probability that the defendant would commit these acts of violence that would make him a continuing threat to his society. Do you grasp what I mean by all that, understand that?
THE VENIREMAN: Yes, sir.
THE COURT: Now, that's to be judged separate -- your answer to that question wouldn't -- would not necessarily under your oath follow from your answer to the question of whether he's guilty or innocent. This is a separate inquiry.
THE VENIREMAN: I understand.

THE COURT: You found a person guilty of capital murder, but now you are faced with well, has the State shown beyond a reasonable doubt that there is a possibility that he would, you know, commit acts of violence, continuing threat to society. They would have to show that, and that's independent and a separate consideration from your finding of guilt. Would you automatically answer that question yes, that there is such a probability, solely because you found the defendant guilty of capital murder, or would you have an independent discussion of the evidence and deliberate whether or not there ought to be a yes or no answer to that question?
THE VENIREMAN: I would say yes.
THE COURT: An independent --
THE VENIREMAN: Yes, sir.
THE COURT: -- inquiry or an independent discussion of that issue?
THE VENIREMAN: I understand.
THE COURT: Wouldn't necessarily follow from your answer to question number one?
THE VENIREMAN: It would be an answer independently.
THE COURT: Independently" Okay. Now, if the jury were to answer that first question no, the State has not shown beyond a reasonable doubt that there is this probability, or no, we have a reasonable doubt that the States had shown this, then that would end the jury's work on the case. They have returned that verdict of no, there is not this probability, and the court would fix punishment at life imprisonment. If the jury were to answer that question yes, however, that there is this probability shown beyond a reasonable doubt, then the jury would have to go to another independent inquiry and searching of the evidence and discussion, and that would be on the question that is number three there on the board. Could you take a moment and just read that paragraph number three, and then I'll ask you about it.
What that question is asking, the State doesn't have to prove it ought to be answered one way, the defense doesn't have to prove as a matter of law it ought to be answered another way. It just inquires into whether or not, despite the fact -- regardless of the fact that the defendant was convicted of capital murder, and regardless of the fact that we've answered question one yes, that there is this probability of future violence, still taking into consideration all of

the evidence in the case, the jury, at least ten members of the jury, that is, feel that there has been a showing of sufficient mitigating circumstances, or even one sufficient mitigating circumstance where the jury feels that a sentence of life imprisonment rather than death be imposed, and that's another completely independent inquiry apart from the answers that were given to the finding of guilt, and the probability being shown, if that's the case, that he would commit future acts of violence. Do you think that you could give independent consideration on a jury in a capital murder case in the punishment phase of that third paragraph there on the board?
THE VENIREMAN: No, sir.
THE COURT: What -- again what it asks is if you felt that there was something in the case that mitigates or lets the jury feel from some circumstance that a sentence of life imprisonment rather than death would be appropriate, could you answer that question yes or no according to how you find the evidence?
THE VENIREMAN: Honestly, I mean, I don't know what mitigating means.
THE COURT: Mitigating means -- I guess the best way to put it is that there is some mitigating factor or circumstances, something that makes it that a softer punishment than the death penalty be imposed, that there is some factor in the evidence that requires that the punishment be lesser than the penalty of death really is the best way to put it, for some reason. It could be a person's background, character, the circumstances, how blameworthy the defendant might be in the case, all of those factors, anything in the evidence that would say that no, this is not a case where death should be imposed. There are certain factors in this case that we feel warrant a life imprisonment sentence rather than death. That's really what that question is asking. Does that help you any?
THE VENIREMAN: Yes, a little bit.
THE COURT: Do you think that you could answer that question yes or no as you -- that yes, there are mitigating factors, and there should be a life sentence, or if you [Not available for display] mitigating factors and it should be the death sentence, could you do that?
THE VENIREMAN: Yes, sir.
THE COURT: And again, that's an independent consideration from the others. It merits separate, serious discussion, you understand.
THE VENIREMAN: Yes, sir.

THE COURT: Is there any reason that you know of right now why you could not be a fair and impartial juror to both the State and the defense if you were on the jury in this case.
THE VENIREMAN: No, sir.¹¹³

113 S.F. Trial, Volume 17, voir dire examination of Pedro Urdales [sic], at pp. 58-64.

During voir dire questioning by the prosecution, juror Vidales testified in pertinent part as follows: QUESTIONS BY MR. LEE:

Q. When we're talking about capital murder, I was reading your questionnaire, and I'm a little confused. I just need to clear that up. How do you -- I notice that you put down that you are not opposed to the death penalty as a matter of principle. How do you feel about that?
A. I feel that if somebody takes a life of somebody they should be punished in the same way.
Q. In the same way?
A. Yes, sir.
Q. Okay.
THE COURT: Now, the punishment is either life imprisonment or death. Are you telling Mr. Lee any time someone tales a life they should be punished by death, or would it be within the range --?
THE VENIREMAN: Well, within the range of both, I mean, either life imprisonment or death.
THE COURT: That's what I thought. I thought you answered that before.
Q. (BY MR. LEE) And if it were the right situation and a death sentence was the appropriate punishment, then you would have no problem with that?
A. No, sir.
Q. In your questionnaire you indicate to the question that was asked, do you believe that the death penalty would always be an excessively severe sentence for a person convicted of capital murder, and you marked yes. Do you think the death sentence would always be too severe for a capital murder case?
THE COURT: In every case where a person is convicted of capital murder would it be imposed -- in

other words, would it be too severe a penalty in every case where a person is convicted?
THE VENIREMAN: Yes.
MR. LEE: You do? Okay.
THE COURT: There is some case where life imprisonment would be appropriate; is that what you mean by that?
THE VENIREMAN: Yes.
THE COURT: Okay.
MR. LEE: Well, I'm totally confused now.
THE COURT: Mr. Lee, he said that it would be an excessively severe punishment in some cases.
MR. LEE: Oh, I thought he said in every case.
THE COURT: No, that's not the way the question is posed.
Q. (BY MR. LEE) Let me ask you this, Mr. Urdales [sic]. As I talk top people about the death penalty there are basically three ideas that seem to come to light. The first are those individuals that believe in the death sentence and believe it is a proper punishment to be imposed in a case. They may not enjoy the idea of having to give a death sentence, but if it was the right thing to do then they could do it. That's group number [Not available for display]
Group number two are those individuals that believe in the death sentence and think it is a proper part of our legal system, but perhaps because of something in their personal background they could not assess the death penalty.
The third group are those people that are always opposed to the death penalty under any circumstances. No matter how heinous or horrible the crime would be they would never give the death sentence. Of those three categories, can you tell us where you would fall?
A. First one.
Q. In the first one? Okay. Now, as Judge Thurmond talked to you about the questions that are asked of the jury, did I understand that you would be willing to follow the law and answer those questions the way you thought the evidence in the case indicated they should be answered?
A. Yes, sir.
Q. You do?
A. Yes, sir.
Q. You are not going to answer a question in a certain way just so a person will get a life sentence, in other words, so you could get a certain result?

A. No, sir.¹¹⁴

114 Id., at pp. 67-70.

When petitioner's trial counsel questioned juror Vidales during voir dire, the following exchanges occurred: QUESTIONS BY MR. GARCIA:

Q. * * * Have you ever heard the saying if you kill once you are going to kill again?
A. Yes, sir.
Q. Do you agree with that?
THE COURT: In every case.
THE VENIREMAN: Yes.
MR. GARCIA: All right.
THE VENIREMAN: I do.
Q. (BY MR. GARCIA) And that's kind of the impression I was getting from your answers, because when you are going to be looking to answer a question, how you feel if you were to find a person -- if you were on a jury, Mr. Urdales [sic], and all 12 of you found that person guilty of capital murder, the intentional killing of another person, let's say during a robbery a guy shoots a clerk, you found that person guilty, then you are going to be looking at answering question number one. They are going to be asking you, do you think there is a probability that this person is going to commit an act of violence again. Would you have a tendency to, just because you found him guilty of murder once already, that question number one should be answered yes?
THE COURT: Or would you give it independent consideration?
THE VENIREMAN: I would give it independent consideration.
Q. (BY MR. GARCIA) You can think in your mind right now of a situation where if you found a person guilty of capital murder, that person would not be a danger in the future? Can you think of something like that?
A. Not right now.
Q. Not right now? Now, in the same way, Mr. Urdales [sic], and you know, if you were on the jury that found a person guilty of capital murder, and you and all the 12 jurors looked at question number one, you decided the answer should be yes, this person is going

to be a threat in the future, okay? He's going to be a continuing threat. Question number three is asking you to look at everything all over again. You have already seen it once; take a look at it one more time. Okay. Now, the question is that based on the feelings that you have, if you would say you know, I already found him guilty of capital murder, I already found him guilty of capital murder, I already found that he's going to be a threat in the future, and I've found that he is going to be a threat again, would you look at question number three and say you now, this question always should be answered no, there is nothing else left about this case that can give this guy a life sentence. Would you have a tendency to do that?
A. Yes.
Q. Right? Okay. Now, is it -- because you have to take everything all over again, you know, is one thing, but when you start reading it in your mind, you are already convinced how it should be answered, then you really can't give it an independent consideration. Would you agree with that?
A. Yes.
Q. Okay.
MR. GARCIA: Mr. Urdales [sic], thank you. I don't have any further questions.
THE COURT: Well, wait. You told me that you could give independent consideration for each of these questions. You are telling Mr. Garcia that you can't. Which is it?
THE VENIREMAN: See, I didn't understand the question clearly when you asked me, and that's why I was asking you what mitigating was, and when he asked me again if I can make an independent answer, yes, I can.
THE COURT: Well, that is what you told me.
THE VENIREMAN: Yes, I can.
THE COURT: And could you do that? I mean, we just want to be sure we understand you.
THE VENIREMAN: Yeah, I can make up my own decision, independent.
THE COURT: And would the same be true on number one?
THE VENIREMAN: Yes, sir.
THE COURT: The fact that a person might be found guilty of capital murder by you, you would make an independent examination of the evidence and determine

whether or not that question ought to be answered yes or no.
THE VENIREMAN: Yes, sir.
THE COURT: All right. Go ahead, Mr. Garcia.
MR. GARCIA: I don't have any further questions.
MR. LEE: No additional questions.
THE COURT: I want to clear up one thing that Mr. Lee brought up. He seized on an answer that you have in your questionnaire, do you believe the death penalty in a capital murder case would always be excessively severe. By that -- what that question is asking is, do you believe that the death penalty in every capital murder case would be a decision that you could not arrive at, or would there be some cases where you would feel that the death penalty, depending on the answers to these questions, would be proper?
THE VENIREMAN: Yes. Yes, I mean, it depends on the case.
THE COURT: Some cases?
THE VENIREMAN: Some cases.
THE COURT: A death penalty would be too severe, is that right?
THE VENIREMAN: Yes, sir.
THE COURT: And it should be for life?
THE VENIREMAN: Yes, sir.
THE COURT: Other cases a death penalty would be appropriate; it just depends on --
THE VENIREMAN: Just depends on the case.
THE COURT: The case, and if the State discharges its burden of proof, is that right?
THE VENIREMAN: Yes, sir.
THE COURT: Okay. Well, you can step outside, Mr. Urdales [sic]. I think we understand clearly your feelings on these matters. Thank you very much.
(Venireman excused.)
MR. LEE: State will accept the juror.
MR. GARCIA: Your Honor, we would challenge Pedro Urdales [sic]. In the totality of his answers when asked specifically if he would kill once he would kill gain he said yes. When asked specifically if he found a person guilty of capital murder on question number one he would always answer it yes. That was 35.16(c), [sic] goes clearly against -- it is a difference when a judge is asking him to answer a certain way, but when I asked him he was very clear. He would always answer that question yes.
THE COURT: Overruled. Ask. Mr. Urdales [sic] come in.

MR. GARCIA: Your Honor, we would ask for an additional peremptory strike based on how the Court had overruled our prior challenges, we were forced to use peremptory strikes on some of the other jurors, and I have a list of those. We had challenged juror number four and was [sic] overruled, juror number nine, we were overruled, number 21, number 47, and 79 and 95 and 99.
THE COURT: Overruled.
MR. GARCIA: Let the record note we're seating him, an objectionable juror to the defense.
THE COURT: Okay. Overruled.¹¹⁵

115 Id., at pp. 71-76.

With regard to whether he would automatically answer the future dangerousness special issue affirmatively based solely upon a guilty verdict on a charge of capital murder, Mr. Vidales was a quintessential vacillating juror. The state trial court was uniquely positioned to evaluate firsthand Mr. Vidales' demeanor and credibility. That court implicitly determined Mr. Vidales lacked disqualifying bias. Petitioner has failed to present this Court with clear and convincing evidence showing juror Vidales possessed disqualifying bias. Petitioner's trial counsel's ambiguous voir dire questions regarding whether Mr. Vidales' had a "tendency" to vote affirmatively on the future dangerousness special issue were anything but "clear and convincing" with regard to establishing disqualifying bias.

None of the three venire members whose voir dire testimony is quoted at length above unequivocally indicated an inability to follow the law applicable to Texas capital sentencing special issues at the punishment phase of petitioner's trial. The failure of the state trial court to grant either of petitioner's challenges for cause to venire members Gonzalez or Sedbrook did result in the seating of a biased juror at petitioner's capital murder trial and did not render petitioner's trial fundamentally unfair.

4. No Eighth Amendment Violation

As this Court has previously noted, the federal constitutional standard for determining qualifications for jury service on a capital sentencing jury is set forth in a series of Supreme Court opinions dating back more than four decades:

In Witherspoon v. Illinois, 391 U.S. 510, 521-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776 (1968), the Supreme Court held that prospective jurors may not be excused from sitting on a capital jury simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Rather, the Supreme Court held as follows:

The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.

Witherspoon v. Illinois, 391 U.S. at 522 n.21, 88 S.Ct. at 1777 n.21.
In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Supreme Court emphasized the limitations Witherspoon imposed on the ability of the State to exclude members of a jury venire from service on a petit capital jury and directly addressed jury selection in Texas capital murder trials:

a juror may not be challenged for cause based on his views about capital punishment

unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

Adams v. Texas, 448 U.S. at 45, 100 S.Ct. at 2526.
In Adams, the Supreme Court further discussed the many practical consequences of its Witherspoon holding:

If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. * * *
[A] Texas juror's views about the death penalty might influence the manner in which he performs his role but without exceeding the 'guided jury discretion" permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon.
The State could, consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31(b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. * * *
[N]either nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty. * * * Nor in our view would the Constitution permit the exclusion of jurors

from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. * * * [T]he State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths.

Adams v. Texas, 448 U.S. at 46-50, 100 S.Ct. at 2527-29 (citations omitted).
In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court further clarified its holdings in Witherspoon and Adams, holding that the proper inquiry when faced with a venire member who expresses personal, conscientious, or religious views on capital punishment is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. at 852. In Wainwright v. Witt, the Supreme Court also emphasized that considerable deference is to be given the trial court's first-hand evaluation of the potential juror's demeanor and that no particular magical incantation or word choice need necessarily be followed in interrogating the potential juror in this regard. Id., 469 U.S. at 430-35, 105 S.Ct. at 855-58.
The Supreme Court subsequently held that the erroneous dismissal of a potential juror in violation of Witherspoon is not subject to harmless error analysis. Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987).
More recently, in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007), the Supreme Court reviewed its Witherspoon-Witt line of opinions and identified the following "principles of relevance":

First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are

able to apply capital punishment within the framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vindicate the State's interest without violating the defendant's right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.

Uttecht v. Brown, 551 U.S. at 9, 127 S.Ct. at 2224 (citations omitted).
The Supreme Court emphasized the critical inquiry for Witherspoon-Witt purposes is not whether a state appellate court properly reviewed the propriety of the exclusion but, rather, whether the trial court correctly applied the appropriate federal constitutional standard. Uttecht v. Brown, 551 U.S. at 16-17, 127 S.Ct. at 2228. Finally, the Supreme Court admonished reviewing courts to defer to the trial court's resolution of questions of bias arising from a potential juror's conflicting voir dire answers because the trial court had the opportunity to observe the demeanor of the potential juror. Uttecht v. Brown, 551 U.S. at 20, 127 S.Ct. at 2230 ("where, as here there is a lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion."). "Courts reviewing claims of Witherspoon-Witt error, however, especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror." Uttecht v. Brown, 551 U.S. at 22, 127 S.Ct. at 2231.

Bartee v. Quarterman, 574 F.Supp.2d 624, 662-64 (W.D. Tex. 2008), CoA denied, 339 Fed. Appx. 429 (5th Cir. July 31, 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1882, 176 L.Ed.2d 370 (2010).

None of the three venire members identified by petitioner in his fourth and fifth claims herein, i.e., venire members Gonzales and Sedbrook and juror Vidales, indicated an unwillingness to set aside their personal views and render a verdict based solely upon the evidence and law set forth in the trial court's jury instructions. On the contrary, based upon this Court's independent review of the entirety of their voir dire testimony, it appears all three were willing to comply with the trial court's instructions and render a punishment-phase verdict based upon the evidence and trial court's instructions. The failure of the state trial court to grant petitioner's challenges for cause to any of these three venire members did not violate the petitioner's federal constitutional rights under the Eighth Amendment. E. Conclusions

Petitioner's purely state-law claims in his twentieth and twenty-second points of error on direct appeal do not furnish a basis for federal habeas corpus relief.

Petitioner procedurally defaulted on the unexhausted federal constitutional aspects of his fourth and fifth claims herein.

Alternatively, petitioner's federal constitutional attacks upon the state trial court's denial of petitioner's challenges for cause to venire members Gonzalez and Sedbrook possess no merit.

Petitioner's fourth and fifth claims herein do not warrant federal habeas relief.

VII. Ineffective Assistance Claims

A. The Claims

In his first and third claims herein, petitioner argues his trial counsel rendered ineffective assistance by failing to (1) request a continuance to complete a mitigation investigation in Missouri, (2) issue out of state subpoenas to petitioner's family and friends and obtain their depositions, (3) adequately question Dr. Dickerson regarding unspecified mitigating circumstances, (4) investigate, develop, and present psychological evidence, (5) obtain a mental health evaluation of petitioner and unspecified records necessary for such an evaluation, and (6) voir dire the jury venire regarding their views on parole eligibility.¹¹⁶ In addition, petitioner also complains that the state trial court denied various pretrial motions for appointment and funding of investigative and mental health experts and severely restricted funding for the petitioner's mitigation investigation.¹¹⁷ B. State Court Disposition

116 Amended Petition, at pp. 13-106 & 151-56.

117 For unknown reasons, petitioner chose to present these complaints about the trial court's procedural rulings as Sixth Amendment ineffective assistance claims. As will be explained hereinafter, however, a Sixth Amendment ineffective assistance claim focuses properly upon the performance of a defendant's counsel, not on rulings made by the trial court. Any complaints petitioner might have had with the trial court's rulings should and could have been raised via points of error on direct appeal challenging those rulings. In the context in which petitioner presents those complaints to this Court, i.e., as Sixth Amendment claims, those complaints are non sequitur.

While petitioner did fairly present the state habeas court with a variety of ineffective assistance claims in the course of petitioner's first and third state habeas corpus proceedings, as respondent correctly points out, petitioner has presented this court with a veritable cornucopia of new documents supporting his ineffective assistance claims herein which have never been presented to any state court and which significantly and substantially alter the context and content of many of petitioner's ineffective assistance claims herein to the point that most of petitioner's ineffective assistance claims in his amended petition herein are unexhausted.¹¹⁸

118 See notes 70-71, supra.

1. Petitioner's First State Habeas Proceeding

During his first state habeas corpus proceeding, petitioner presented three federal constitutional ineffective assistance claims and three state constitutional ineffective assistance claims. More specifically, in support of his Sixth Amendment claims, petitioner argued (1) his trial counsel failed to investigate and present unspecified mitigating evidence, (2) a conflict of interest arose as a result of petitioner's trial counsel negotiating book deals during said counsel's representation of petitioner, and (3) petitioner's trial counsel offered only one witnesses at the punishment phase of petitioner's capital murder trial (Dr. Dickerson) and asked only one question to this witness. In support of his Texas constitutional claims, petitioner argued (1) the three foregoing deficiencies in the performance of petitioner's trial counsel also violated state constitutional guarantees, (2) the failure of petitioner's trial counsel to voir dire the jury venire on parole eligibility violated the Texas Constitution, and (3) the failure of petitioner's trial counsel to request appointment of co-counsel also violated state constitutional guarantees. In support of these claims, petitioner presented the state habeas court with (1) an affidavit from Ann Matthews in which she averred in a highly conclusory fashion that (a) the defense team was more interested in personal gain than in defending petitioner, (b) the defense team solicited payments from unspecified persons in exchange for obtaining petitioner's confessions to unadjudicated offenses in other jurisdictions, (c) during petitioner's trial, the defense team received payments totaling approximately five thousand dollar payment from an unspecified "Missouri official" in exchange for petitioner's confession to a double homicide in Taney County, Missouri, (d) the defense team used author Donna Hughes to gather unspecified information from petitioner, and (e) defense investigator Vince Gonzalez subsequently refused to release unspecified mitigation evidence to unidentified persons without assurances of payment and (2) a rank hearsay within hearsay affidavit from Bob Schanz in which he stated he was told certain information by a San Antonio investigator about a written confession to an unspecified offense which Schanz was led to believe would be executed by petitioner.¹¹⁹

119 First State Habeas Transcript, at pp. 53-55.

The State presented the state habeas court with an affidavit from petitioner's former trial counsel, attorney Victor Robert Garcia, in which said counsel (1) stated the defense team's court-appointed investigator Vince Gonzalez "spoke with various family members of Tommy Lynn Sells and did not find any helpful mitigation evidence that was not already known," (2) at the request of the defense team, petitioner underwent a PET exam which showed no organic brain damage or signs of schizophrenia, (3) during the pendency of trial, there were no discussions among the defense team regarding any fees other than those earned and paid for by Val Verde County, (4) there were never any discussions of book royalties being given or assigned to anyone on the defense team, (5) no one on the defense team ever accepted any remuneration other than that provided as payment by Val Verde County, (6) the defense team chose as a matter of trial strategy not to call any mitigation witnesses other than Dr. Dickerson because of concerns other witnesses might have knowledge of extraneous offenses committed by petitioner which could have been raised and used by the prosecution, including an attempted sexual assault, (7) petitioner approved this defense strategy, and (8) while the trial court originally appointed a second attorney to assist petitioner, and the trial court indicated a willingness to appoint co-counsel to assist petitioner, the petitioner did not want the attorney originally court-appointed as co-counsel to assist at trial and petitioner's trial counsel did not feel he needed a co-counsel for petitioner's trial.¹²⁰

120 Affidavit of Victor Robert Garcia, First State Habeas Transcript, at pp. 73-75.

On June 29, 2005, the state habeas trial court issued an Order containing its findings of fact, conclusions of law, and recommendation that petitioner's first state habeas corpus application be denied.¹²¹ Among the findings of fact made by the state trial court were determinations that (1) on February 8, 2000, the trial court appointed attorney Garcia as lead trial counsel attorney Manual Pacheco as co-counsel for petitioner, (2) upon petitioner's request, on April 28, 2000, attorney Pacheco was relieved of his duties as petitioner's co-counsel, (3) the trial court offered to appoint a substitute co-counsel but attorney Garcia declined the trial court's offer, (4) the court appointed Vince Gonzalez as investigator for petitioner, (5) the trial court authorized the defense to retain the professional mental health services of psychologist, Dr. Windel L. Dickerson, (6) petitioner's trial counsel called Dr. Dickerson and the Vel Verde County Detention Center's jail administrator to testify on petitioner's behalf at the punishment phase of trial, (7) Dr. Dickerson testified, in part, (a) he had examined petitioner at least five times, (b) he was able to speak with persons who had known petitioner his while life, (c) petitioner may have been abused as a child by a pedophile, (d) he administered many psychological tests to and reviewed petitioner's medical records from Wyoming, Arkansas, and West Virginia penal facilities, (e) petitioner has borderline personality disorder withy schizoid, avoidant, and anti-social features, along with possible brain damage, (f) he reviewed more than twenty years or records relating to petitioner's drug abuse and hospitalizations, (g) petitioner is a very seriously disordered individual, and (h) instigators to violence are present in petitioner's mind and body which dramatically affect petitioner's ability to guide and direct his own behavior and resist those instigators to violence, (8) Dr. Dickerson was questioned extensively at trial concerning his examination of petitioner and his professional findings, (9) Dr. Dickerson concluded petitioner's propensity for future violence was substantially lower than other prison inmates if petitioner were properly medicated and separated from other inmates to the point that petitioner would likely need to be separated from the general prison population for petitioner's own protection, (10) petitioner's trial counsel never received any remuneration during his representation of petitioner other than that paid for Val Verde County, (11) petitioner's trial counsel was well versed in the psychological evidentiary aspects of the case, and (12) petitioner's trial counsel used reasonable diligence to investigate potential mitigating evidence.¹²²

121 First State Habeas Transcript, at pp. 97-107.

122 First State Habeas Transcript, at pp. 99-104.

The Texas Court of Criminal Appeals denied petitioner's first state habeas corpus application in an unpublished per curiam Order based upon the trial court's findings and conclusions. Ex parte Tommy Lynn Sells, WR-62,552-01 (Tex. Crim. App. August 31, 2005).

2. Petitioner's Third State Habeas Corpus Proceeding

On September 15, 2010, petitioner filed his third state habeas corpus application, in which he asserted ten new claims of ineffective assistance by his trial counsel, along with a new Brady claim premised upon the prosecution's alleged failure to disclose to petitioner's trial counsel a booking sheet that was introduced into evidence by petitioner's trial counsel during a pretrial hearing. On September 30, 2010, petitioner supplemented his third state habeas corpus application with an affidavit executed September 27, 2010 by a psychologist and expert in "fetal alcohol syndrome" and "fetal alcohol effects," Dr. Natalie Novick Brown, who stated therein her opinions that (1) prenatal alcohol exposure causes structural brain damage (including (a) executive functioning deficits, (b) general intelligence deficits, and (c) difficulties with learning, communication, social and adaptive functioning, and poor impulse control), (2) those suffering from compromised executive functioning typically engage in socially inappropriate behavior, are unable to apply the consequences from past actions, and are unable to experience or display remorse, (3) by the time of petitioner's 2000 capital murder trial fetal alcohol syndrome and fetal alcohol effects had been recognized as disabilities for fifteen years, and (4) by the time of petitioner's capital murder trial it was recognized that untreated primary disabilities, such as those listed above, are the basis for maladaptive behaviors.¹²³

123 Affidavit of Dr. Natalie Novick Brown, atached to petitioner's First Supplement to Subsequent Application for Post-Conviction relief, filed September 30, 2010 in Val Verde County, Texas, found at Third State Habeas Proceeding Supplemental Transcript, at pp. 33-45.

Petitioner's new ineffective assistance claims consisted of arguments that petitioner's trial counsel rendered ineffective assistance virtue of (1) the state trial court's denial of petitioner's motions for appointment of an investigator and mental health expert, (2) said trial counsel's failure to request a continuance to complete the investigation into potentially mitigating evidence available in Missouri, (3) said counsel's failure to subpoena out-of-state witnesses, including petitioner's family members, and others who could have testified regarding petitioner's background and abused and neglected childhood, (4) said counsel's failure to ask Dr. Dickerson unspecified questions that would have "personalized" petitioner, (5) said counsel's failure to investigate, develop, and present available, potentially mitigating, evidence showing petitioner suffers from fetal alcohol syndrome, (6) restrictions the state trial court placed on the ability of the defense team to interview petitioner's family and friends located in other jurisdictions, (7) said counsel's failure to obtain petitioner's mental health records and to seek a mental health evaluation of petitioner, including neuropsychological testing of petitioner, (8) said counsel's failure to object to the prosecutor's argument that ten votes were needed for petitioner to receive a life sentence, (9) said counsel's failure to inform petitioner's appellate and state habeas counsel that the scope of trial counsel's investigation into petitioner's background has been restricted financially and geographically, and (10) petitioner's original state habeas counsel failed to investigate, develop, and present all the claims contained in petitioner's third state habeas corpus application.

Petitioner attached to his third state habeas corpus application a plethora of affidavits, sworn statements, and authenticated documents, including (1) a pair of affidavits from petitioner's mother (Nina Lovins)(one of which was a copy of an affidavit petitioner attached to his second state habeas corpus application and the other of which was dated September 5, 2010), (2) another copy of the same August 12, 2006 affidavit from Dr. Dickerson petitioner attached to his second state habeas corpus application, (2) a pair of affidavits from petitioner's brother Timmy Sells (one of which was a copy of the same affidavit that had been attached to petitioner's second state habeas corpus application and the other of which was dated September 5, 2010), (3) affidavits of Vince Gonzales (dated September 14, 2010), Mary Howell (dated September 5, 2010), and Paul Hunt (dated August 30, 2010), (4) a fetal alcohol syndrome disorder screening questionnaire, (5) the affidavit of Dr. Richard Adler dated September 14, 2010 and several medical journal articles on fetal alcohol syndrome,¹²⁴ (6) the affidavit of Dr. Antoinette McGarrahan dated July 10, 2009,¹²⁵ (7) the affidavit of Dr. Brian Skop dated September 14, 2009,¹²⁶ (8) petitioner's January 2, 2000 booking sheet from the Val Verde County Detention Center, and (9) various documents from petitioner's trial court proceedings, including his judgment.

124 Dr. Adler's September 14, 2010 affidavit stated his belief that, based upon his review of unspecified records from petitioner's capital murder trial, he believed petitioner can properly be diagnosed with fetal alcohol spectrum disorders. Third State Habeas Transcript, at pp. 153-57.

125 Dr. McGarrahan's report dated July 10, 2009 stated, in pertinent part, that petitioner had disclosed to her in May, 2009 that he had been sexually abused by his mother, grandmother, two of his brothers, and others during his childhood. Third State Habeas Transcript, at pp. 197-207.

126 Dr. Skop's September 14, 2009 affidavit stated he believed Dr. McGarrahan's report was based upon the type of documentation typically used to evaluate persons such as petitioner. Third State Habeas Transcript, at pp. 209-10.

The Texas Court of Criminal Appeals dismissed petitioner's third state habeas corpus application pursuant to state writ-abuse principles. Ex parte Tommy Lynn Sells, WR-62,552-03, 2010 WL 5168591 (Tex. Crim. App. December 15, 2010). C. Procedural Default on Unexhausted Claims

Insofar as petitioner complains that his trial counsel failed to adequately investigate, develop, and present then-available mitigating evidence during the punishment phase of petitioner's capital murder trial, petitioner has chosen to support those claims in this Court with a plethora of documents petitioner has never presented to any state court.¹²⁷

127 See numerous documents listed in notes 70-71, supra.

Among these new documents are extensive records from the State of Missouri penal system which detail (1) petitioner's conviction in 1984 for felonious stealing, the subsequent revocation of petitioner's parole, and petitioner's ensuing incarceration, (2) petitioner's arrest and subsequent guilty plea to a charge of DWI which occurred while petitioner was on parole and led to the revocation of petitioner's parole, (3) petitioner's multiple arrests while a juvenile for auto theft, possession of a weapon, and trespassing, and (4) many instances of violent, disruptive conduct by petitioner, including multiple instances of fighting with other inmates, while incarcerated in Missouri in 1984-86.¹²⁸

128 Docket entry no. 122-23, i.e., Business Records Affidavit of Judy A. Martin and 236 pages of Missouri Department of Corrections records attached thereto, at pp. 3, 8, 16, 18, 23, 33, 51-61, 86, 107, 127-28, 135, 159-64, 177-79, 209-11, 218, 225.

Petitioner has also chosen to present to this Court for the first time, a business records affidavit from the West Virginia prison system and accompanying documents detailing (1) petitioner's arrest and guilty plea in 1993 on a charge of malicious wounding, (2) petitioner's victim's account of petitioner's sexual assaults upon her prior to the knife fight that resulted in petitioner's conviction on that charge, and (3) a mental status report diagnosing petitioner with an anti-social personality.¹²⁹

129 Docket entry no. 122-25, i.e., Business records Affidavit of Sharon Yahnke and 132 pages of West Virginia Northern Correctional Facility records attached thereto, at pp. 2-5, 7-10, 13-16, 22, 33, 96-98, and 131.

Petitioner has also chosen to furnish this Court with several reports from experts on the subject of fetal alcohol syndrome which petitioner has never presented to any state court.¹³⁰

130 See, e.g., Docket entry nos. 122-26 through 122-29 (CV of Dr. David Lisak and accompanying unsworn declaration and reports totaling more than 150 pages) and docket entry no. 122-33 (sworn declaration of Richard Stetler totaling five pages).

The foregoing voluminous documents substantially alter the context and content of the ineffective assistance claims petitioner presented to the state habeas court as his second, third, fourth, fifth, and seventh claims for state habeas corpus relief. Simply put, the petitioner's first claim herein is not the same claim petitioner presented to the state habeas court as his second through fifth and seventh claims in his third state habeas corpus application. As a result, the ineffective assistance claims petitioner has presented to this Court in his multi-faceted first claim herein, i.e., those contained in his amended federal habeas corpus petition at pp. 13-106, are currently unexhausted and, therefore, procedurally defaulted for the same reasons contained in Section V.C. above. See Hughes v. Dretke, 412 F.3d at 594-95 (holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments); Beazley v. Johnson, 242 F.3d at 264-68 (holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application). D. De Novo Review on Unexhausted Ineffective Assistance Claims

The voluminous new documentation petitioner presents to this Court in support of his multi-faceted first claim for federal habeas relief herein¹³¹ radically alter the content and context of the similar claims petitioner included in his third state habeas corpus application (which the state habeas court dismissed on state writ-abuse principles).

131 See documents listed in notes 70-71, supra.

Insofar as petitioner argues the deficient performance of his first state habeas corpus counsel justifies the circumvention of petitioner's procedural default on his ineffective assistance claims herein, based upon the Supreme Court's recent holding in Martinez v. Ryan, supra, petitioner's argument is non sequitur. It was the failure of petitioner's third state habeas counsel to furnish the state habeas court with the same documentation petitioner's federal habeas counsel has furnished to this Court which has rendered petitioner's ineffective assistance claims herein unexhausted and, therefore, procedurally defaulted. Any deficiency in the performance of petitioner's first state habeas counsel is irrelevant and immaterial in light of the gamesmanship displayed by petitioner's third state habeas counsel in concealing voluminous documents from the state habeas court (in the context of petitioner's third state habeas proceeding) and then attempting to bury this Court with such new, unexhausted, voluminous, documents when petitioner returned to this Court.

Because petitioner has radically transformed his first group of ineffective assistance claims herein by submitting voluminous new documentation (including the extensive new records from the petitioner's 1984-86 incarceration in the Missouri Department of Corrections) supporting same (which documentation was clearly readily available at the time of petitioner's third state habeas corpus proceeding), petitioner's multi-faceted first claim herein is unexhausted. Petitioner's new documentation radically alters (curiously to the benefit of respondent) the evidentiary posture of petitioner's multi-faceted first claim herein. Accordingly, this Court's review of same is necessarily de novo. See Porter v. McCollum, ___ U.S. at ___, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. at 2467 (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice). E. Alternatively, No Merits

1. The Constitutional Standard

The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, ___ U.S. ___, ___, 130 S.Ct 383, 384, 175 L.Ed.2d 328 (2009); Bobby v. Van Hook, ___ U.S. ___, ___, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009)); and (2) give rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, ___ U.S. ___, ___, 130 S.Ct. 447, 452-53, 175 L.Ed.2d 398 (2009); Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 386).

The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):

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.

To satisfy the first prong of Strickland, i.e., 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, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). 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 v. Washington, 466 U.S. at 687-91, 104 S.Ct. at 2064-66. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. at 2536 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, ___ U.S. at ___, 130 S.Ct. at 16; Strickland v. Washington, 466 U.S. at 688-89, 104 S.Ct. at 2065. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066.

To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.

In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 386; Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a capital murder trial would have been different. Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 390-91.

In evaluating petitioner's complaints about the performance of his counsel under the AEDPA, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003), cert. denied, 540 U.S. 1154 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test, this Court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, ___ U.S. at ___, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005)(holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same).

A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 365, 175 L.Ed.2d 62 (2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000), cert. denied, 522 U.S. 1067 (2001).

Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066; Scheanette v. Quarterman, 482 F.3d 815, 820 (5th Cir. 2007), stay denied, 555 U.S. 1160 (2009); Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir. 2007), cert. denied, 552 U.S. 948 (2007); Amador v. Quarterman, 458 F.3d at 410; Gonzales v. Quarterman, 458 F.3d 384, 390 (5th Cir. 2006), cert. denied, 549 U.S. 1323 (2007).

2. The Setting

Petitioner's new ineffective assistance claims must be viewed in the context of the events surrounding petitioner's September, 2000 capital murder trial.

At the time of petitioner's capital murder trial in September, 2000, petitioner had furnished the Val Verde County Sheriff's Department with not only a videotaped confession to Kaylene Harris' brutal murder but also a videotaped walk-through of the crime scene in which petitioner described, with a chilling lack of emotion, how he had fatally slashed Kaylene's throat and attempted to do likewise to Krystal Surles. In his videotaped confession, petitioner stated that he was grateful to law enforcement officers for having arrested him for Harris' murder because, had they not done so, he would likely have harmed another. Petitioner also referred vaguely in that same videotaped interview to a girl in Kentucky whom he had murdered.¹³²

132 Petitioner's reference to a murder in Kentucky is significant because, according to Dianne Fanning's book Through the Window, copyright 2003, St Martin's Press, the product of Fanning's correspondence with petitioner, less than a month after Sells' April, 1999 abduction, molestation, and murder of nine-year-old Mary Bea Perez in San Antonio, petitioner sexually assaulted and murdered thirteen-year-old Haley McHone in Lexington, Kentucky.
Fanning is not the only author with whom petitioner has cooperated since his January, 2000 arrest. In February, 2005, author Donna L. Hughes published Coast to Coast, copyright 2005, AuthorHouse, her account of petitioner's multiple murders committed all over the continental United States.

In addition, by the time of petitioner's Val Verde County capital murder trial in the Fall of 2000, petitioner was a suspect in the April, 1999 abduction and murder of nine-year-old Mary Bea Perez in San Antonio. This Court takes judicial notice of the facts that (1) in February, 2001, petitioner was indicated in Bexar County for capital murder in connection with Pena's slaying and (2) petitioner entered a guilty plea in Bexar County on September 10, 2003 to capital murder in Perez's death.

Thus, despite the ready availability of evidence linking petitioner to other crimes, including multiple homicides, the state trial court ruled during a pretrial hearing held June 25, 2000 that it would not allow the admission of evidence concerning petitioner's offenses committed in other jurisdictions and would not authorize payment for investigation by the defense team into those other offenses.¹³³

133 S.F. Trial, Volume 3, at pp. 136-37.
The state trial court made this bizarre ruling after Texas Ranger John Allen testified that, several months after petitioner's arrest, the petitioner discussed other crimes he had committed with Ranger Allen. S.F. Trial, Volume 3, testimony of John W. Allen, at p. 110. During the same pretrial hearing, Dr. Windel Dickerson testified he had interviewed petitioner twice by that time and concluded petitioner had been in trouble with the law all over the country and had served time in prison in at least five different jurisdictions, including Utah and West Virginia. Id., testimony of Dr. Windel Dickerson, at pp. 122, 126, 133.

In hindsight, the state trial court's ruling in question was an unwarranted boon to the petitioner because it precluded the prosecution from introducing readily available evidence linking petitioner to a series of murderers of other young girls. There is no federal constitutional prohibition on the introduction at a capital trial's punishment phase of evidence showing the defendant has engaged in extraneous, unadjudicated, criminal conduct. Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005); Hughes v. Dretke, 412 F.3d at 593 ("the Supreme Court has never held that the federal constitution requires a state to prove an extraneous offense beyond a reasonable doubt."). Neither does the Constitution require unadjudicated extraneous offenses be proved beyond a reasonable doubt for evidence of those offenses to be admitted at trial. See Brown v. Dretke, 419 F.3d at 376-77 (the Constitution does not require the defendant's commission of unadjudicated extraneous offenses be proven beyond a reasonable doubt before evidence of same may be admitted at a capital trial's punishment phase); Harris v. Cockrell, 313 F.3d 238, 246 (5th Cir. 2002)(the introduction of evidence of extraneous offenses, even those of which the defendant has been acquitted, does not violate due process and there is no constitutional requirement that extraneous offenses offered at the punishment phase of a capital trial be proven beyond a reasonable doubt), cert. denied, 540 U.S. 1218 (2004); Vega v. Johnson, 149 F.3d 354, 359 (5th Cir. 1998)(extraneous offenses offered at the punishment phase of a capital trial need not be proven beyond a reasonable doubt and may be admitted even after the defendant has been acquitted of those charges), cert. denied, 525 U.S. 1119 (1999). Both before and after petitioner's trial, the Fifth Circuit has consistently held admission of evidence of unadjudicated extraneous misconduct at the punishment phase of a capital murder trial does not violate the Constitution. See Gutierrez v. Dretke, 392 F.Supp.2d 802, 870 (W.D. Tex. 2005)(discussing the long line of additional Fifth Circuit opinions holding evidence of unadjudicated extraneous misconduct admissible during the punishment phase of a Texas capital trial), CoA denied, 201 Fed. Appx. 196 (5th Cir. September 21, 2006), cert. denied, 549 U.S. 1227 (2007). Finally, at the time of petitioner's trial, Texas law did not require proof beyond a reasonable doubt of a defendant's commission of extraneous, unadjudicated, criminal conduct before evidence of same could be admitted during the punishment phase of a capital trial. See Gutierrez v. Dretke, 392 F.Supp.2d at 866-70 (discussing Texas Court of Criminal Appeals opinions construing the relevant Texas statute, i.e., Article 37.071 of the Texas Code of Criminal Procedure, addressing the admissibility of evidence of unadjudicated extraneous misconduct at the punishment phase of a capital trial).

At the time of petitioner's capital murder trial in September, 2000, neither Texas law nor federal law required the prosecution to establish beyond a reasonable doubt the petitioner had engaged in unadjudicated extraneous misconduct before evidence concerning such misconduct could be admitted at the punishment phase of petitioner's trial. See, e.g., Paredes v. State, 129 S.W.3d 530, 540-41 (Tex. Crim. App. 2004)(holding evidence of unadjudicated criminal offenses admissible at the punishment phase of a capital murder trial where the prosecution presents evidence linking the defendant to the crime); Allridge v. State, 762 S.W.2d 146, 162 (Tex. Crim. App. 1988)(holding the same), cert. denied, 489 U.S. 1040 (1989). Despite this reality, the state trial court effectively shielded petitioner from the consequences of his other, then-unadjudicated criminal conduct, as well as from any evidence then readily available from petitioner's Missouri prison records concerning petitioner's juvenile and adult criminal convictions in Missouri. Simply put, the state trial court stacked the deck in favor of the petitioner at the punishment phase of petitioner's capital murder trial.

3. Failure to Present Fetal Alcohol Syndrome Evidence

In his first, multi-faceted, claim for relief herein, petitioner complains his trial counsel's failed to investigate, develop, and present potentially mitigating evidence at the punishment phase of trial showing petitioner suffers from fetal alcohol syndrome or fetal alcohol effects as a result of his mother's ingestion of alcohol during her pregnancy with petitioner and petitioner's twin sister.

a. No Deficient Performance

Insofar as petitioner complains his trial counsel failed to present potentially mitigating evidence showing petitioner suffers from fetal alcohol syndrome or fetal alcohol spectrum disorders, petitioner's complaint is undermined by the absence of any fact-specific allegations, much less any evidence, in the record now before this Court showing that petitioner does, in fact, suffer from fetal alcohol syndrome. While petitioner alleges that his mother drank alcohol during her pregnancy with petitioner and petitioner's twin sister, there is no evidence now before this Court establishing with specificity the amount or frequency of Nina Lovins' alleged alcohol ingestion during her pregnancy.¹³⁴ Nor do any of the mental health experts who have furnished this Court with affidavits or statements purport to definitively diagnose petitioner with fetal alcohol syndrome or the effects of that disorder.¹³⁵ The closest any of petitioner's new experts comes to attempting such a diagnosis are the statements in the affidavit of Dr. Richard Adler, in which he states he has found "materials consistent with the likelihood that Mr. Sells has a diagnosis within the category of the Fetal Alcohol Spectrum Disorders (FASDs)," in petitioner's records - "there is information confirming prenatal alcohol exposure - specifically an affidavit from his mother signed September 5, 2010 admitting to drinking during the subject pregnancy."¹³⁶

134 Petitioner's mother's statements furnished to this Court offer no specific facts concerning her ingestion of alcohol during her pregnancy with petitioner and petitioner's twin sister. Docket entry nos. 122-4 and 122-16.
The only mention of alcohol ingestion contained in Nina Lovins' statements before this Court consists of a single paragraph in a September 5, 2010 sworn statement given by Ms. Lovins as follows:

I recall drinking screwdrivers made of vodka and orange judice with Raymond Davis, a relative of my stepfather's in Alameda, California. We did this on quire a few Friday nights while I was pregnant with Tommy. At the time, I did not know that drinking alcohol might harm an unborn child, so there could very well be other occasions in which I drank alcohol during the time I was pregnant with Tommy.

Docket entry no. 122-16, at p. 3.

The unsworn declaration of petitioner's wife Jessica Y. Levrie Blanco Sells states that petitioner reported to her that he was sexually abused as a child by his mother. Docket entry no. 122-12. Thus, there might have been objectively reasonable reasons why petitioner's trial counsel chose not to call Nina Lovins to testify at petitioner's trial.

135 Dr. David Lisak furnished three reports on persons other than petitioner and a copy of his CV but nothing indicating Dr. Lisak had ever diagnosed petitioner with fetal alcohol syndrome. Docket entry nos. 122-26 through 122-29.
Dr. Natalie Novick Brown offered an affidavit stating that the diagnosis of fetal alcohol syndrome was available at the time of petitioner's 1998 trial but does not purport to make such a diagnosis herself. Docket entry no. 122-30. Dr. Brown's refers to a purported diagnosis by a "Dr. Levin" of petitioner as suffering from "Partial FAS With Confirmed Maternal Alcohol Exposure (Type 3...)". Docket entry no. 122-30, at p. 3. However, petitioner has never furnished this Court a copy of any report or sworn statement by "Dr. Levin" purporting to actually make a diagnosis of FAS in petitioner's case.

136 Docket entry no. 122-31, at p. 2.

Petitioner has furnished this Court with no evidence showing there was any evidence readily available at the time of petitioner's capital murder trial establishing the drinking habits of petitioner's mother. Ms. Lovins' own recollections about that topic were apparently expressed for the first time ten years after petitioner's capital murder trial when she informed petitioner's federal habeas counsel of her ingestion of screwdrivers during her pregnancy with petitioner back in 1963-64. Petitioner has not alleged any facts, much less furnished any evidence, showing there any information made available to petitioner's trial counsel at or before the time of petitioner's trial which would have led petitioner's trial counsel to conclude that investigation into fetal alcohol syndrome was at that time a realistic option or potentially beneficial source of mitigating evidence. Nina Lovins does not allege at any point in any of her sworn statements that she made petitioner's defense team aware prior to petitioner's trial of the fact she had ingested alcohol during her pregnancy with petitioner and petitioner's twin sister. On the contrary, Ms. Lovins' statement appears to suggest she had never even considered her pre-natal alcohol ingestion as relevant to petitioner's capital murder case until the issue was raised by petitioner's federal habeas counsel more than a decade after petitioner's trial. Ms. Lovins' affidavits presented to this Court do not include any blanket denials that she was interviewed by petitioner's defense team prior to trial.

Nor has petitioner identified any other source of information in 2000 which would have tipped off petitioner's trial counsel to the possible availability of "fetal alcohol syndrome" or "fetal alcohol effects" as mitigating evidence potentially beneficial to petitioner. Petitioner has not identified a single instance in which, prior to the date of petitioner's capital murder trial, evidence of fetal alcohol syndrome or fetal alcohol spectrum disorders had ever been successfully employed at the punishment phase of a capital murder trial to help a convicted capital murderer avoid a death sentence.

That such an argument, coupled with actual evidence petitioner suffered same, might have been theoretically available at the time of petitioner's trial did not render the failure of petitioner's trial counsel to pursue such a defensive theory professionally deficient. The defense of a criminal case is not one in which every potentially available defensive theory must be pursued without regard to the potential downside of asserting such a defense. "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources." Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992), cert. denied, 510 U.S. 829 (1993).

If Dr. Natalie Brown's descriptions of the effects of fetal alcohol syndrome and fetal alcohol spectrum disorders are deemed credible, then there were objectively reasonable reasons why petitioner's trial counsel could have chosen not to have pursued such a line of defense at the punishment phase of petitioner's capital murder trial. Chief among these are Dr. Brown's assertions that (1) prenatal alcohol exposure causes significant malformation in structures within the brain that are necessary for normal development and functioning (meaning a finding of FAS meant petitioner was permanently marked as brain altered), (2) as of 2000, the DSM-IV-TR had not been amended to recognize FAS/FAE as an independent mental health disorder (meaning such a diagnosis could be performed only by a psychiatrist not a psychologist such as Dr. Brown or Dr. Lisak), and (3) prenatal alcohol exposure damaged executive functioning, resulting in socially inappropriate behavior, inability to apply consequences from past actions (i.e., an inability to learn from one's mistakes), lack of impulse control, rage reactions, physical aggression, stealing, high risk behaviors, and the inability to experience or display remorse.¹³⁷ Thus, pursuit of a defense at the punishment phase of petitioner's trial premised upon petitioner suffering from fetal alcohol syndrome or fetal alcohol effects would have amounted to an admission by petitioner's trial counsel that petitioner would, in fact, pose a substantial risk of future violent conduct. Such a dubious tactic would have undermined the trial testimony of Dr. Dickerson and the efforts of petitioner's trial counsel to obtain a negative answer to the future dangerousness special issue.

137 Docket entry no. 122-30, affidavit of Dr. Natalie Novick brown, at pp. 2-6.

Petitioner's trial counsel somehow managed to convince the state trial court to exclude from the jury's purview any evidence relating to petitioner's commission of unadjudicated criminal conduct, as well as to evidence of petitioner's convictions, in other jurisdictions. During the punishment phase of petitioner's capital murder trial, the petitioner's trial counsel pursued a strategy of employing Dr. Dickerson to (1) present the mitigating aspects of petitioner's difficult childhood (including petitioner's long-term drug abuse and evidence the petitioner was sexually assaulted during his childhood and teen years) and (2) argue that, with proper medication and the type of close supervision available in Texas prisons, the risk of future violence from petitioner was minimized. Toward that end, petitioner's trial counsel consciously chose not to present mitigating evidence from petitioner's family and friends because of the potential risk those witnesses might disclose information about petitioner's other offenses and unadjudicated criminal conduct, including an attempted sexual assault.¹³⁸ Thus, there were objectively reasonable reasons for petitioner's trial counsel's decision to present mitigating evidence of petitioner's background through Dr. Dickerson, rather than through the testimony of petitioner's family and childhood friends.

138 Affidavit of Victor Robert Garcia, First State Habeas Transcript, at pp. 73-75.
There is no reason to believe petitioner's family or friends were personally aware of petitioner's murders of Mary Bea Perez in San Antonio in April, 1999 or of petitioner's murder of Haley McHone in Lexington, Kentucky in May, 1999. However, there is every reason to believe petitioner's family and childhood friends were likely aware (1) petitioner had been arrested for numerous juvenile and adult offenses, including auto theft (docket entry no. 122-23, at pp. 8, 18, 23, 164), (2) petitioner's nose was broken while fighting with another Missouri prison inmate (docket entry no. 122-23, at pp. 2098-11, 225), (3) petitioner once attempted to rape his own mother (docket entry no. 122-22, at pp. 9, 35), (4) petitioner abused alcohol and other drugs from an early age (docket entry no. 122-22, at pp. 11-12, 33; docket entry no. 122-23, at pp. 124, 141, 226), and (5) petitioner had a history of suicidal behavior (docket entry no. 122-23, at pp. 11, 16, 107, 121, 141).

At the time of petitioner's 2000 capital murder trial, "fetal alcohol syndrome" and "fetal alcohol effects" were terms only just beginning to find acceptance among the mainstream within the mental health community. Neither term appears in the 2000 edition of the DSM-IV-TR.¹³⁹ Thus, had petitioner's trial counsel attempted to assert at the time of petitioner's capital murder trial that petitioner suffered from fetal alcohol syndrome or fetal alcohol effects, petitioner's punishment-phase trial strategy would have relied upon a theory not generally accepted within the psychiatric community.

139 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR)(2000), at pp. 143-46, 168-70, 177-80, 212-23, 338-43, 405-09, 479-83, 562-65, 655-61.

Presenting a fetal alcohol syndrome defense at the punishment phase of petitioner's 2000 capital murder trial would not only have amounted to a concession that the jury should answer the first capital sentencing special issue affirmatively but would likely have required petitioner's trial counsel to have presented testimony about petitioner's childhood through the very members of petitioner's family and family friends who not only likely had personal knowledge of petitioner's violent criminal history but who also allowed petitioner to be molested by Willis Clark. Petitioner has presented this Court with numerous affidavits and statements from petitioner's family and friends stating they knew or suspected Willis Clark molested petitioner while petitioner was a child and teenager.¹⁴⁰ Dr. Antoinette McGarrahan states in her report dated July 10, 2009 that petitioner's mother first learned petitioner had been molested by Willis Clark when petitioner was eleven years old.¹⁴¹ Nowhere in any of those affidavits or statements is there any indication any of those persons ever reported their knowledge or suspicions about Clark's abuse of petitioner to responsible law enforcement or child protection authorities. Moreover, Dr. Antoinette McGarrahan states petitioner disclosed to her that petitioner's own mother and grandmother forced him to perform sexual acts with them and two of petitioner's brothers also molested him.¹⁴² Thus, all of those potential witnesses petitioner would have been forced to rely upon to present a fetal alcohol syndrome defense would have been subject to potentially devastating cross-examination based upon their failure to report Clark's alleged sexual abuse of petitioner and their own alleged molestations of petitioner. There were objectively reasonable reasons for petitioner's trial counsel's decision not to pursue a trial strategy of asserting a defense at the punishment phase of petitioner's capital murder trial (based upon fetal alcohol syndrome or fetal alcohol effects) which would likely have required presenting witnesses (particularly petitioner's own family members) potentially subject to devastating cross-examination.

140 Docket entry no. 122-4 (Unsworn, undated, declaration of Nina Lovins), docket entry no. 122-5 (Affidavit of Timmy Sells dated July 30, 2006), docket entry no. 122-7 (Unsworn declaration of Mary Howell dated March 11, 2010), docket entry no. 122-8 (Unsworn declaration of Lance E. Page dated December 12, 2009), docket entry no. 122-16 (Sworn declaration of Nina Lovins dated September 5, 2010), docket entry no. 122-17 (Sworn declaration of Timothy Lee Sells dated September 5, 2010), docket entry no. 122-18 (Sworn declaration of Mary Howell dated September 5, 2010), docket entry no. 122-20 (Sworn declaration of Lance E. Page dated September 23, 2010). In each of these affidavits of declarations, there are suggestions or statements indicating the affiant or declarant knew of had reason to know Willis Clark had molested petitioner.

141 Affidavit of Dr. Antoinette McGarrahan dated July 10, 2009, Docket entry no. 122-21, at p. 3. Another copy of Dr. McGarrahan's report appears at Third State Habeas Transcript, at pp. 197-207.

142 Id.

Furthermore, as is shown by even a cursory review of Dr. Brown's affidavit, a defense based upon petitioner's purported prenatal exposure to alcohol would have amounted to an admission by petitioner's trial counsel that petitioner did, in fact, pose a risk of future dangerousness because petitioner was (1) incapable of learning from his past misconduct, (2) likely to display poor impulse control and engage in violent conduct when triggered, and (3) psychologically incapable of experiencing (much less displaying) remorse. The decision by petitioner's trial counsel to employ Dr. Dickerson's expertise in an attempt to obtain a favorable jury finding on the future dangerousness special issue, rather than conceding the future dangerousness issue and making an emotional appeal for mercy on behalf of a defendant incapable of experiencing remorse, did not cause the performance of said counsel to fall below an objective level of reasonableness.

Petitioner's complaint about his trial counsel's failure to present fetal alcohol syndrome or fetal alcohol effects evidence during the punishment phase of petitioner's 2000 capital murder trial does not satisfy the first prong of Strickland analysis.

b. No Prejudice

As was explained above, presentation of expert mental health opinion testimony suggesting petitioner suffers from either fetal alcohol syndrome or fetal alcohol effects (particularly testimony similar to that contained in Dr. Natalie Brown's affidavit) would have amounted to an admission that petitioner would pose a substantial risk of future dangerousness due to developmental factors which had not been addressed during petitioner's developmental and childhood years. Presentation of such evidence would have necessarily furnished the prosecution with substantial expert testimony upon which to argue that petitioner would forever remain a remorseless, unrepentant, predator.

Furthermore, the brutal circumstances of petitioner's offense (including (1) the fact he pleaded guilty to almost killing Krystal Surles while denying his guilt for the murder of Kaylene Harris, (2) the overkill involved in Kaylene's murder (including the fact petitioner admitted to cutting her throat at least three times and the medical examiner's unchallenged testimony regarding the number of fatal and non-fatal injuries Kaylene sustained), (3) the utter lack of any semblance of remorse displayed by petitioner on his two videotaped confessions, (4) petitioner's videotaped expression of gratitude that he had been caught, (5) petitioner's videotaped reference to another murdered girl in Kentucky, and (6) the utter absence of any evidence of remorse by petitioner for his offenses) made obtaining favorable answers to the two Texas capital sentence special issues extremely difficult for petitioner's trial counsel.

Petitioner has not alleged any facts showing petitioner has ever possessed any personal knowledge regarding his mother's alleged alcohol ingestion during her pregnancy with petitioner's and petitioner's twin sister. The only witnesses identified in petitioner's pleadings, affidavits, or declarations presented to this Court who claimed to have personal knowledge of petitioner's mother's drinking habits at the time of her pregnancy were subject to potentially devastating cross-examination based upon their failure to report to responsible law enforcement and child welfare authorities Willis Clark's alleged sexual abuse of petitioner. Thus, had petitioner's trial counsel chosen to go forward with a punishment-phase defense strategy premised upon fetal alcohol syndrome or fetal alcohol effects, petitioner's trial counsel would have undermined the opinions expressed by Dr. Dickerson and effectively conceded the first capital sentencing special issue should be answered favorably to the prosecution.

The fundamental problem with presenting an emotional appeal for mercy to petitioner's capital sentencing jury was the complete and total absence of any evidence showing petitioner had ever expressed any remorse for his capital offense (i.e., the murder of Kaylene Harris) or for his nearly capital offense (i.e., the attempted capital murder of Krystal Surles). While a fetal alcohol syndrome-based defense might have furnished the petitioner's jury with a possible explanation for petitioner's inability to express (or experience) remorse over his very serious crimes, it would also have conceded to petitioner's jury that no amount of medication or control exercised by state prison officials was ever going to render petitioner capable of experiencing remorse for his criminal conduct. In fact, a showing that petitioner suffered from fetal alcohol syndrome or fetal alcohol effects would have amounted to an admission that petitioner was constitutionally incapable of ever experiencing remorse.¹⁴³

143 See Affidavit of Dr. Natalie Novick Brown, docket entry no. 122-30, at p. 5 (listing among the executive functions compromised by prenatal alcohol exposure the individual's inability "to experience or display remorse").

Asserting a fetal alcohol syndrome defense at the punishment phase of petitioner's capital murder trial, i.e., making a naked emotional appeal for mercy based upon prenatal alcohol abuse petitioner sustained in utero, would have amounted to throwing a Hail Mary into a gusting wind against a prevent defense. Petitioner admitted during a pair of videotaped interviews to having slashed the throats of both Kaylene Harris and Krystal Surles with a knife he brought with him to the Harris residence during an early morning burglary of the Harris residence. The unchallenged testimony of the medical examiner disclosed evidence Kaylene (1) had been sexually assaulted after her clothing had been cut from her body and (2) received multiple potentially fatal wounds, as well as numerous nonfatal wounds. Petitioner never offered any explanation for his crimes other than his drunken rage over Kaylene's father's alleged failure to pay petitioner for drugs petitioner had sold to Mr. Harris weeks before.

Despite the best efforts of the state trial court to prevent the prosecution from presenting evidence of petitioner's other criminal offenses in other jurisdictions, during his punishment-phase trial testimony, Dr. Dickerson did mention his review of state prison records from West Virginia, Wyoming, Arkansas, and Missouri.¹⁴⁴ The prosecution made no effort to introduce direct evidence of petitioner's criminal convictions in Missouri or Arkansas or to present petitioner's capital sentencing jury with evidence showing petitioner's lengthy history of violence while a Missouri prison inmate in 1984-86.¹⁴⁵ Still, the petitioner's capital sentencing jury was made aware that petitioner had been convicted of auto theft in Wyoming and malicious wounding in West Virginia.

144 S.F. Trial, Volume 24, testimony of Dr. Windel Dickerson, at pp. 154-55, 161-62; Volume 25, testimony of Dr. Windel Dickerson, at p. 42.

145 The prosecution did present the jury with properly authenticated copies of petitioner's pen packets from Wyoming (State Exhibit 104 - conviction for auto theft) and West Virginia (State Exhibit 105 - conviction for malicious wounding). S.F. Trial, Volume 24, testimony of Charles Joe Parker, at pp. 88-91.
The prosecution did not offer any other evidence addressing petitioner's convictions in Missouri, Arkansas, Utah, or any other jurisdiction mentioned by Dr. Dickerson in his pretrial testimony regarding petitioner's state prison records.

This Court concludes there is no reasonable probability that, but for the failure of petitioner's trial counsel to present evidence during the punishment phase of petitioner's capital murder trial similar to that contained in the affidavits of Dr. Natalie Novick Brown and Dr. Richard Adler, along with the other new evidence petitioner has presented to this Court, including Dr. McGarrahan's report, the outcome of the punishment phase of petitioner's trial would have been any different.

The level of callousness disregard for human life inherent in petitioner's capital offense combines with petitioner's chillingly remorseless videotaped confession and videotaped re-enactment of his activities at the Harris residence at the time of the offense to convince this Court a naked appeal for mercy on petitioner's behalf premised upon a claim of fetal alcohol syndrome or fetal alcohol effects would have resulted in neither a negative answer to the future dangerousness special issue nor an affirmative answer to the mitigation special issue. By the time of petitioner's September, 20000 capital murder trial, he was no longer a child or even a teenager suffering from the deleterious effects of prenatal exposure to alcohol. Instead, he was a remorseless thirty-six year old adult with a lengthy history of substance abuse and multiple criminal convictions who had slit the throats of a pair of innocent young girls, purportedly because one of the girls' fathers had failed to timely pay petitioner for illicit drugs petitioner had sold to him. Under such circumstances, there is no rational basis to believe an emotional appeal for mercy on petitioner's behalf based upon fetal alcohol syndrome would have had any realistic chance of success.

Had petitioner called his mother or other family members to testify regarding petitioner's mother's ingestion of alcohol while pregnant with petitioner more than three decades before petitioner's capital offense, the prosecution would most certainly have countered by challenging the moral efficacy of excusing the petitioner's brutal crimes based upon alleged alcohol ingestion by petitioner's mother at a time when, even petitioner's own mental health experts have acknowledged, little was known about the deleterious effects of prenatal exposure to alcohol.¹⁴⁶ Furthermore, petitioner's mother would have been subject to cross-examination based upon her failure to protect her teenage son from the sexual advances of Willis Clark and her failure to report Clark's sexual abuse of petitioner (as well as the molestation of petitioner by his own brothers) to the proper authorities in a timely manner.

146 Had the prosecution been aware of the petitioner's salacious allegations contained in Dr. McGarrahan's report, the State might well have been able to impeach petitioner's family members or present evidence (through their denials of petitioner's sordid allegations) challenging the accuracy of petitioner's allegations regarding his history of childhood abuse. Simply put, the new information contained in Dr. McGarrahan's report would have furnished the prosecution with legitimate bases to cross-examine or impeach petitioner's family members had they been called to testify at the punishment phase of petitioner's capital murder trial.

Petitioner has presented this Court with no evidence from Dr. Lisak specifically addressing petitioner's situation.¹⁴⁷ Had petitioner called Dr. Brown to testify regarding the effects of fetal alcohol syndrome or fetal alcohol effects and she had testified in a manner consistent with her affidavit filed in this cause, the prosecution would have undoubtedly employed her testimony to convince the jury to answer the future dangerousness special issue affirmatively. A naked emotional appeal for mercy (based upon a purported diagnosis of fetal alcohol syndrome or fetal alcohol effects - a diagnosis not then independently recognized by the DSM-IV-TR) combined with an admission the petitioner was constitutionally incapable of experiencing remorse would not reasonably have resulted in a different verdict at the punishment phase of petitioner's capital murder trial. In all reasonable probability, the brutal facts of petitioner's offense were simply too compelling to be overcome by a naked emotional appeal for mercy premised upon meager evidence showing petitioner's mother drank a few screwdrivers in 1964 while pregnant with petitioner and his twin sister. The evidence regarding petitioner's fetal alcohol syndrome and fetal alcohol effects presented by petitioner to this Court is, at best, clearly double-edged in nature because it necessarily led to a conclusion that petitioner would forever be unable to control his aggressive, anti-social, impulses and would never be able to learn from his mistakes.¹⁴⁸

147 Petitioner attached to his amended petition herein Dr. Lisak's CV, an unexecuted declaration by Dr. Lisak concerning someone named Eric Nance, a report prepared by Dr. Lisak on someone named Donald Middlebrooks, and a report prepared by Dr. Lisak on someone named David Allen Rundle. Docket entry nos. 122-26 through 122-29. There is no evidence now before this Court establishing what opinions or findings Dr. Lisak might have made with regard to petitioner's mental health had petitioner's federal counsel chosen to retain the services of Dr. Lisak and had Dr. Lisak interview and evaluate petitioner rather than wasting several years and more than twenty-five thousand dollars of taxpayer money chasing after an illusory Atkins claim.
Insofar as petitioner argues he possessed a right to unlimited financial resources for the purpose of pursuing unlimited interviews with every person with whom petitioner had ever been in contact, as urged by Russell Stetler in his affidavit herein, i.e., docket entry no. 122-33, any such contention is foreclosed by the Teague non-retroactivity doctrine. Contrary to the argument underlying Mr. Stetler's contentions, no federal court has ever held a federal habeas petitioner possesses a right to unlimited funding for the purpose of having an expert mitigation specialist interview every person who ever met the petitioner during his lifetime for hundreds of hours. On the contrary, the representation of a capital habeas petitioner, like criminal defense work generally, does not contemplate the employment of wholly unlimited time and resources. Smith v. Collins, 977 F.2d at 960.

148 See Affidavit of Dr. Natalie Novick Brown, docket entry no. 122-30, at p. 5:

Lack of impulse control is one of the hallmark behavioral symptoms in individuals with FAS/FAE. This deficit often leads to compulsive use of alcohol and drugs as well as other uncontrolled behaviors such as rage reactions, physical aggression, stealing, and high risk behaviors. In some FAS/FAE-impaired individuals, there is very little self-control even when they are not under the influence of disinhibitory substances such as alcohol.

For the foregoing reasons, this Court concludes there is no reasonable probability that, but for the failure of petitioner's trial counsel to present such double-edged evidence during the punishment phase of petitioner's 2000 capital murder trial, the outcome of the punishment phase of petitioner's capital murder trial would have been any different.

4. Failure to Question Dr. Dickerson in a Manner that Humanized Petitioner

Petitioner argues in his first claims herein that his trial counsel should have asked Dr. Dickerson unspecified questions necessary to fully present all available mitigating evidence.¹⁴⁹

149 Amended Petition, at pp. 26-29.

a. No Deficient Performance

Petitioner argues that Dr. Dickerson's trial testimony was "clinical and impersonal" but offers no suggestions as to any specific additional questions petitioner's trial counsel might have asked Dr. Dickerson which would have "humanized" petitioner.

Contrary to the arguments underlying this aspect of petitioner's ineffective assistance claims, as well as the affidavit of Ann Matthews relied upon by petitioner in his first state habeas corpus proceeding and herein, Dr. Dickerson testified extensively concerning petitioner's background, albeit in a manner intentionally designed by petitioner's trial counsel to avoid cross-examination into petitioner's previous criminal convictions and unadjudicated criminal conduct.¹⁵⁰

150 See notes 50-57, supra, and accompanying text.

Dr. Dickerson testified at trial that he believed petitioner had been sexually abused as a child and teenager but petitioner had refused to discuss the details of those events.¹⁵¹ Dr. Dickerson also testified petitioner had a long history of substance abuse.¹⁵² Dr. Dickerson nonetheless concluded petitioner should be diagnosed as a borderline personality with schizoid, avoidant and anti-social features (rather than a true "anti-social personality" as suggested by Dr. Mears) and argued the Texas prison system was fully capable of housing petitioner in an environment that would minimize the threat of petitioner's future dangerousness.¹⁵³ Petitioner does not identify any additional specific questions petitioner's trial counsel could have asked Dr. Dickerson which would have effectively presented petitioner's capital sentencing jury with additional, admissible, mitigating evidence.

151 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 136, 141-42.

152 Id., at pp. 136, 141, 156; Volume 25, testimony of Dr. Windel L. Dickerson, at pp. 34, 36.

153 S.F. Trial, Volume 24, testimony of Dr. Windel Dickerson, at pp. 149, 152, 157-58, 160-63, 165-66, 168, 173; Volume 25, testimony of Dr. Windel Dickerson, at pp. 29-30, 32-34, 36-37, 41-42, 45.

Insofar as petitioner implies Dr. Dickerson could have been questioned in a manner that elicited rank hearsay information given to Dr. Dickerson by petitioner's family and friends, petitioner misconstrues the nature of expert testimony. Generally speaking, an expert is not permitted to testify as to hearsay information acquired during said expert's investigation that forms the basis for the experts's opinions and conclusions. See United States v. Mejia, 545 F.3d 179, 194-96 (2nd Cir. 2008)(holding it was error to permit a law enforcement officer to testify about factual matters revealed in a task force investigation into a specific criminal gang's activities or about matters the average juror could have understood based on the factual information itself, rather than more broadly about interpreting jargon and coded messages). It is inappropriate for an expert to simply transmit rank hearsay information to the jury without forming an opinion based on his extensive experience and a reliable methodology. United States v. Mejia, 545 F.3d at 197. "Expert testimony" which simply recites or repeats information without analyzing the contents of source materials is inadmissible under Rule 703, Fed.R.Evid. Id., at 198. Thus, had petitioner's trial counsel attempted to use Dr. Dickerson to elicit rank hearsay information which had been furnished to Dr. Dickerson by petitioner's family and friends, that effort would likely have been in vain.

Furthermore, Dr. Dickerson did testify that he had spoken with members of petitioner's family and others who had known petitioner throughout petitioner's life and these persons had informed Dr. Dickerson that petitioner (1) was late to walk as an infant, (2) had a sister who died as a young child, (3) suffered a high fever as a young child, (4) had a very long and very bad substance abuse history, and (5) may have been sexually abused as a child and teen.¹⁵⁴ Thus, petitioner's trial counsel did elicit from Dr. Dickerson at least some of the factual bases for Dr. Dickerson's expert opinions. While petitioner did furnish Dr. McGarrahan with detailed information concerning petitioner's background during a May, 2009 clinical interview,¹⁵⁵ petitioner has not presented this Court with any evidence showing that either petitioner or his family and friends furnished Dr. Dickerson with any additional details concerning petitioner's allegedly neglected or abused childhood prior to petitioner's 2000 capital murder trial.¹⁵⁶ Petitioner has, therefore, failed to carry his burden to show that it was even possible for petitioner's trial counsel to have questioned Dr. Dickerson in a manner which led to the presentation of additional mitigating evidence about petitioner's background.

154 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 135-36, 139-42, 152, 156-57.

155 See docket entry no. 122-21. Based upon this Court's independent review of the entirety of Dr. Dickerson's testimony, as well as petitioner's state prison records (docket entry nos. 122-122-23, 122-24, and 122-25), it is apparent that, during his May, 2009 clinical interview with Dr. McGarrahan, petitioner discussed a number of subjects petitioner had previously refused to discuss in detail with either Dr. Dickerson or mental health workers at various penal facilities.

156 Dr. Dickerson did furnish the state habeas court with an affidavit in connection with petitioner's second state habeas corpus proceeding (in which petitioner argued he was mentally retarded) but nothing in that affidavit suggests Dr. Dickerson was made aware at the time of petitioner's 2000 trial of additional mitigating evidence which Dr. Dickerson failed to furnish to petitioner's capital sentencing jury. See Affidavit of Windel Lee Dickerson dated August 12, 2006, Second State Habeas Transcript, at pp. 86-88. Rather, Dr. Dickerson's affidavit focuses on the amount of information regarding petitioner's background that was unavailable to Dr. Dickerson at the time of petitioner's 2000 capital murder trial. Another copy of Dr. Dickerson's August 12, 2006 affidavit appears as an attachment to petitioner's third state habeas corpus application. Third State Habeas Transcript, at pp. 117-20.

If petitioner's trial counsel had attempted to do an end run around the Texas hearsay rule by having Dr. Dickerson reveal hearsay information related to him by petitioner's family and friends, there is also the Pandora's Box scenario to consider. Questioning Dr. Dickerson about rank hearsay information furnished by petitioner's family and friends (concerning petitioner's background) risked the possibility that such testimony might have caused the prosecution to insist on cross-examining Dr. Dickerson on matters petitioner had disclosed to Dr. Dickerson, including the details of petitioner's prior criminal offenses and unadjudicated criminal misconduct in other jurisdictions. As explained above, notwithstanding the petitioner's trial court's bizarre pretrial ruling excluding all evidence of petitioner's criminal conduct from other jurisdictions,¹⁵⁷ Texas law permitted the admission at the punishment phase of petitioner's trial of evidence linking petitioner to unadjudicated criminal offenses committed in other jurisdictions. Paredes v. State, 129 S.W.3d at 540-41. There is the possibility an attempt by petitioner's trial counsel to elicit even more hearsay testimony from Dr. Dickerson regarding the factual bases for his expert opinions might have caused the state trial court to reconsider its strange ruling and permit cross-examination of Dr. Dickerson into information petitioner had disclosed to Dr. Dickerson about petitioner's criminal conduct in other jurisdictions.

157 S.F. Trial Volume 3, at pp. 136-39.

Petitioner has not alleged any facts showing there was anything petitioner's trial counsel or Dr. Dickerson could have said or done in 2000 to convince petitioner to change his mind and cooperate with an exploration by Dr. Dickerson into petitioner's history of child sexual abuse. Nor does petitioner allege any specific facts showing there was any practical way for petitioner's trial counsel to have presented extensive evidence "humanizing" petitioner without putting on the stand petitioner's mother, whom petitioner accused of having sexually abused him as a child¹⁵⁸ and petitioner's family friend Mary Howell implicitly accused of having neglected petitioner and knowingly failed to protect petitioner from the sexual abuse Willis Clark allegedly perpetrated upon petitioner.¹⁵⁹ As explained above, had petitioner's trial counsel attempted to call petitioner's mother to testify at the punishment phase of petitioner's capital murder trial, she would have been subject to cross-examination (or impeachment through the testimony of Mary Howell) based upon her failure to protect petitioner from sexual abuse at the hands of Willis Clark and petitioner's own brothers.

158 Docket entry no. 122-12, unsworn declaration of Jessica Y. Levrie Blanco Sells.

159 Docket entry no. 122-7, unsworn declaration of Mary Howell, and docket entry no. 122-18, affidavit of Mary Howell. In both of these documents, Ms. Howell states "I heard Tommy beg his mother not to send him to Willis Clark."

Under such circumstances, petitioner's conclusory complaint about his trial counsel's alleged failure to "ask all of the questions necessary to give Dr. Dickerson the opportunity to inform the jury of [unspecified] mitigating circumstances" does not satisfy the first prong of Strickland analysis.

b. No Prejudice

Petitioner has identified no person other than petitioner himself who possessed personal knowledge at the time of petitioner's 2000 capital murder trial concerning the specifics of Willis Clark's alleged sexual abuse of petitioner during petitioner's childhood and teen years. Petitioner has not presented this Court with any evidence showing petitioner was prepared at the time of his 2000 capital murder trial to take the stand and testify regarding Willis Clark's alleged sexual abuse of petitioner.

Petitioner has presented this Court with affidavits and declarations (both sworn and unsworn) from petitioner's family and friends which rather ambiguously and cryptically suggest petitioner was not treated very well by his family during his childhood and teen years. However, all of the persons who have furnished these affidavits and declarations were subject to cross-examination based upon their failure to report to law enforcement or child welfare authorities their suspicions or knowledge of Willis Clark's sexual abuse of the petitioner. Moreover, the focus of most of the affidavits and declarations furnished by petitioner to this Court is on petitioner's allegedly slow mental development, not on allegations of horrific neglect, physical abuse, or emotional abuse of petitioner by petitioner's family. Only in his clinical interview with Dr. McGarrahan given in May, 2009 did petitioner, for apparently the first time, begin to reveal the full extent of the sexual abuse he suffered at the hands of his own brothers, mother, and grandmother, as well as Willis Clark. Petitioner has alleged no specific facts showing that he was ready, willing, or able to make those same disclosures at the time of his trial and the testimony of Dr. Dickerson refutes any such after-the-fact contention.¹⁶⁰

160 Dr. Dickerson testified without contradiction at petitioner's trial that while he suspected petitioner had been abused sexually as a child and teen, petitioner had refused to discuss that subject. S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 122, 136, 141-42.

Finally, Dr. Dickerson did furnish the petitioner's capital sentencing jury with substantial testimony regarding the factual bases for his expert opinions and conclusions.¹⁶¹ Petitioner has failed to present this Court with any fact-specific allegations, much less any evidence, showing Dr. Dickerson was in a position at the time of petitioner's 2000 capital murder trial to furnish petitioner's capital sentencing jury with any additional mitigating evidence. Under such circumstances, petitioner has failed to allege specific facts, much less furnish evidence, showing it was even possible at the time of petitioner's 2000 capital murder trial for petitioner's trial counsel to have used Dr. Dickerson's trial testimony to lay out additional information regarding alleged neglect or abuse inflicted upon petitioner during his childhood and teen years. There is no reasonable probability that, but for the failure of petitioner's trial counsel to question Dr. Dickerson more thoroughly concerning Dr. Dickerson's knowledge of petitioner's background, the outcome of the punishment phase of petitioner's capital murder trial would have been any different. There is no fact-specific allegation, much less any evidence, now before this Court showing Dr. Dickerson had any personal knowledge in 2000 of the type of abuse and neglect petitioner apparently revealed for the first time to Dr. McGarrahan in 2009.¹⁶²

161 See notes 50-57, supra, and accompanying text.

162 Nothing in the record now before this Court suggests petitioner ever accused his brothers, mother, or grandmother of sexually abusing or molesting him prior to May, 2009.

For the foregoing reasons, the failure of petitioner's trial counsel to more thoroughly question Dr. Dickerson concerning potentially mitigating aspects of petitioner's background did not "prejudice" petitioner within the meaning of Strickland.

5. Failure to Investigate, Develop, and Present Additional Mitigating Evidence

In his first claim herein, petitioner also presents several complaints about the performance of his trial counsel which collectively attack said counsel's investigation into petitioner's background and presentation of available mitigating evidence during the punishment phase of petitioner's capital murder trial. Among these are allegations petitioner's trial counsel (1) failed to request a continuance to enable the defense team to complete a mitigation investigation in Missouri, (2) failed to issue out-of-state subpoenas directed to petitioner's family and friends, (3) failed to obtain the depositions of these potential witnesses, (4) failed to present the deposition testimony of those persons at the punishment phase of petitioner's capital murder trial, (5) failed to conduct face-to-face interviews with petitioner's family and friends, (6) failed to obtain and present to the jury petitioner's state prison and medical records, and (7) failed to obtain and present psychological evidence to the jury similar to that contained in Dr. Antoinette McGarrahan's report (Docket entry no. 122-21).

Petitioner argues that, had his trial counsel done a more thorough job investigating petitioner's background, said counsel would have discovered testimony from petitioner's family and friends which showed petitioner was developmentally slow during childhood, was cared for by relatives other than his birth mother during childhood, was a "loner" who begged for help in school, was a "follower," could not learn the rules of childhood games such as baseball, had diminished intellectual capacity, was verbally and emotionally abused by his mother and grandmother, and had been sexually abused not only by Willis Clark but also his own mother and grandmother and two of his own brothers.¹⁶³ In support of this claim, petitioner presented his third state habeas court, and presents this Court, with a report dated July 10, 2009 prepared by Dr. Antoinette McGarrahan detailing myriad new allegations of abuse allegedly directed toward petitioner during his childhood.¹⁶⁴

163 Amended Petition, at pp. 13-106.

164 Dr. McGarrahan's report appears herein as docket entry no. 122-21. Another copy of the same report was presented to the petitioner's third state habeas court and appears at Third State Habeas Transcript, at pp. 196-207.
In her report, which was based in significant part upon a clinical interview Dr. McGarrahan conducted with petitioner on May 26, 2009, Dr. McGarrahan reports petitioner disclosed to her that he had been (1) molested by two of his brothers, (2) forced to perform sex acts with his own mother and grandmother, and (3) neglected and verbally and emotionally abused by his mother and grandmother. Docket entry no. 122-21, at p. 3; Third State Habeas Transcript, at p. 198.

a. No Deficient Performance

The fundamental problem with this aspect of petitioner's ineffective assistance claims herein is that petitioner has presented this Court with no specific factual allegations, much less any evidence, showing the "new" information contained in Dr. McGarrahan's report was reasonably available to the members of petitioner's defense team at or before the time of petitioner's 2000 trial. None of the affidavits or declarations furnished to this Court by petitioner's mother or brother or other relatives or family friends state that any of them were prepared at the time of petitioner's 2000 capital murder trial to testify to these new allegations of sexual abuse, neglect, or abuse contained in Dr. McGarrahan's 2009 report. Likewise, petitioner has not alleged any facts, much less furnished any evidence, showing that he was ready, willing, or able to testify at his own 2000 capital murder trial in a manner consistent with the information petitioner furnished Dr. McGarrahan in May, 2009. Nor has petitioner alleged any facts, much less presented any evidence, showing petitioner was ready, willing, or able to furnish either Dr. Adler, Dr. Brown, Dr. Lisak, Dr. Skop, or Mr. Stetler with any of the new mitigating evidence contained in Dr. McGarrahan's report had any of those persons interviewed petitioner prior to petitioner's 2000 capital murder trial. In fact, petitioner alleges no specific facts, much less presents any evidence, showing petitioner was ready, willing, or able to furnish Dr. McGarrahan with any of the new mitigating evidence contained in Dr. McGarrahan's report had she interviewed petitioner prior to petitioner's 2000 capital murder trial.

It is clear that petitioner did not tell Dr. Dickerson that he had been molested by two of his brothers or forced to perform sex acts with his own mother and grandmother; Dr. Dickerson's trial testimony that petitioner refused prior to trial to discuss any allegations of sexual abuse with Dr. Dickerson remains uncontradicted.¹⁶⁵ Petitioner does not allege that he ever told Dr. Dickerson about these "new" allegations of sexual abuse by petitioner's own family members and there is no evidence before this Court suggesting petitioner ever told Dr. Dickerson or any member of petitioner's defense team about such alleged abuse or any of the other "new" mitigating evidence contained in Dr. McGarrahan's July, 2009 report.

165 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 141-42.

It is important to remember that, at the time of petitioner's trial, the only realistic goal of petitioner's trial counsel was to obtain a life sentence for petitioner. Petitioner's murder of Kaylene Harris was well documented by petitioner's videotaped confession and videotaped re-enactment/walk-through of the crime scene, during both of which petitioner expressed absolutely no remorse for his crimes and even ruminated out loud about how he had considered attacking Kaylene's mother and sister as they slept in another bedroom in another part of the Harris residence. Days after his arrest, petitioner gave a pair of written statements in which he admitted to having sexually assaulted Kaylene. Within a week of his arrest, petitioner had confessed to having burglarized the Harris residence, sexually assaulting Kaylene, and then murdering Kaylene and attempting to do likewise to Krystal Surles. Thus, long before eyewitness and attempted-murder-survivor Krystal Surles took the stand at petitioner's trial, there was no legitimate doubt as to the eventual outcome of the guilt-innocence phase of petitioner's capital murder trial. The evidence of petitioner's guilt for the offense of capital murder was beyond overwhelming.

Petitioner's trial counsel offered the state habeas court an affidavit which is also properly before this Court. In his affidavit, attorney Garcia stated, in pertinent part, that (1) he obtained court appointment of investigator Vince Gonzales, who investigated petitioner's family background and criminal history, (2) the defense team issued subpoenas for medical and businesses to obtain documents from penal facilities where petitioner had been housed, (3) Gonzalez spoke with members of petitioner's family but found no helpful mitigating evidence that was not already in the possession of the defense team, (4) after Dr. Dickerson was retained by the defense team, a PET examination was conducted on petitioner in Lubbock which did not show any organic brain damage, and (5) as a matter of trial strategy, the defense chose to call Dr. Dickerson as its primary witness because of fear other witnesses might have been subject to cross-examination which would have revealed extraneous offenses committed by petitioner, including an attempted sexual assault.¹⁶⁶

166 Affidavit of Victor Robert Garcia, First State Habeas Transcript, at pp. 73-75.

The documents furnished to this Court by petitioner establish that, prior to petitioner's 2000 capital murder trial, petitioner was in contact with an author named Donna Hughes concerning her efforts to research petitioner's criminal history and petitioner was also then corresponding about a murder in Missouri with Bob Schanz.¹⁶⁷ Thus, it is clear petitioner's defense team was aware that petitioner was talking with others prior to trial concerning petitioner's possible involvement in other murders in other jurisdictions. Under such circumstances, the concern expressed by attorney Garcia in his affidavit over the defense's desire to avoid the admission of evidence of any extraneous offenses committed by petitioner elsewhere was objectively reasonable.

167 Affidavit of Ann Matthews, First State Habeas Transcript, at pp. 53-54, 80-81; Letter of Bob Schanz, First State Habeas Transcript, at p. 55.
In her affidavit, Ms. Matthews states she learned that prior to trial petitioner's defense team allowed author Hughes access to petitioner and shared unspecified information with her.
Mr. Schanz states in his unsworn letter that he has corresponded with petitioner, he has sixty or seventh lengthy letters from petitioner containing a wealth of information, and he heard from others that an attempt would be made to obtain a confession from petitioner in connection with multiple homicides in Taney County.

At the punishment phase of trial, Dr. Dickerson testified extensively concerning his views that (1) petitioner did not possess an anti-social personality, (2) if properly medicated and isolated from other inmates, petitioner's risk of future violence would be diminished considerably, and (3) Texas prison officials possessed adequate means to maintain discipline over petitioner in an incarcerated setting.¹⁶⁸ Dr. Dickerson also testified regarding the factual bases for his opinions.¹⁶⁹ Significantly, Dr. Dickerson also testified without contradiction that, while he suspected petitioner had been sexually abused as a child, the petitioner had refused to discuss that subject with him.¹⁷⁰

168 See notes 50-57, supra, and accompanying text.

169 Id.

170 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 122, 136, 141-42.

Petitioner complains that his trial counsel failed to request a continuance to permit the defense team to complete an investigation into mitigating evidence then available in Missouri and failed to adequately investigate petitioner's background for mitigating evidence. The problem with this conclusory complaint is that petitioner has failed to identify with specificity any potentially mitigating evidence about petitioner's background then-available in Missouri (or which could have been uncovered in 2000 by a more thorough defense investigation) of which the defense team was unaware at the time of petitioner's capital murder trial. While petitioner has presented this Court with numerous affidavits and declarations from petitioner's family members and friends in Missouri, petitioner does not allege any specific facts, much less furnish any admissible evidence, showing that any of the "new" information concerning petitioner's background contained in the affidavits and declarations of petitioner's family and childhood friends was unknown to petitioner's defense team at the time of petitioner's capital murder trial.

Likewise, petitioner alleges no specific facts, much less furnishes any evidence, showing there was anything petitioner's trial counsel or Dr. Dickerson could have done in 2000 to convince petitioner to reveal to them the "new" information contained in Dr. McGarrahan's report on her May, 2009 clinical interview with petitioner. Petitioner cannot fault his trial counsel for failing to discover information about petitioner's background which petitioner alone possessed but which petitioner deliberately withheld from his defense team at the time of petitioner's capital murder trial.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And 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. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066.

Petitioner presents no fact-specific allegations, much less any evidence, showing there was any potential source of information regarding the petitioner's history of childhood sexual abuse available at the time of petitioner's 2000 capital murder trial other than petitioner himself. For instance, petitioner does not allege any police reports or other official records of petitioner's alleged childhood sexual abuse (by either Willis Clark or petitioner's mother or petitioner's grandmother or petitioner's brothers) existed at the time of petitioner's 2000 capital murder trial. Nor does petitioner identify any potential witnesses to such alleged abuse who were available at the time of petitioner's 2000 capital murder trial other than himself and his alleged abusers.¹⁷¹

171 Petitioner does not allege that Willis Clark was available to be deposed at or prior to petitioner's trial or that petitioner's mother and grandmother would have waived their Fifth Amendment right to avoid coerced self-incrimination and admitted prior to, or at, petitioner's capital murder trial that they had sexually, physically, and emotionally abused petitioner. In fact, petitioner has not presented this Court with any specific facts showing that Nina Lovins has ever been willing to admit that she or her own mother sexually, physically, or emotionally abused petitioner during his childhood. Likewise, petitioner has not presented this Court with any specific facts, much less any evidence showing that his brothers or grandmother were ready, willing, or able to testify at petitioner's 2000 capital trial that they had molested or sexually abused petitioner.

Even a cursory review of the petitioner's prison records from West Virginia, Wyoming, and Missouri and other documents furnished to this Court by petitioner herein reveals that, at or prior to the date of petitioner's capital murder trial, the petitioner was fully capable of communicating with mental health and prison officials in those jurisdictions about his allegedly difficult background and childhood but petitioner had repeatedly refused to discuss the details of his alleged sexual abuse as a child with state prison and state mental health officials.¹⁷² Those prison records also reveal that (1) as of 1981, petitioner tested at the level of 89 on an IQ test but was found to display significant anger issues and possessed a need to strike out at others (including an admission by petitioner that he had attempted to rape his mother),¹⁷³ (2) petitioner was involved in numerous fights while incarcerated in Missouri for felonious stealing of an automobile,¹⁷⁴ (3) a Wyoming State Hospital report dated March 13, 1990 reported petitioner (a) had a long history of drug and alcohol abuse beginning at age ten, (b) functioned in the low-normal intelligence range, and (c) displayed an anti-social personality and unpredictable, self-destructive, behavior,¹⁷⁵ and (4) West Virginia prison records reveal petitioner gave a personal history in which he reported (a) he had been disciplined in school for righting on multiple occasions, (b) he left home at age thirteen to live with a brother, (c) he had a long history of drug abuse, and (d) he was arrested for malicious wounding after he engaged in a knife fight with a woman who brought him home with her.¹⁷⁶ Petitioner's prison records make clear petitioner was fully capable of furnishing his own defense team with extensive information about his own background, including information regarding petitioner's childhood sexual abuse, long term drug abuse, and extensive criminal history.¹⁷⁷

172 Petitioner was able to furnish state prison and mental health professionals with detailed information regarding his background. See docket entry nos. 122-23 (Missouri prison records) at pp. 3, 6-8, 11-12, 16, 18-20, 23-25, 107, 121, 139-42; docket entry no. 122-24 (Wyoming state hospital records) at pp. 2-3, 6-10; and docket entry no. 122-25 (West Virginia prison records) at pp. 13-16, 22, 33, 39, 60, 96-98.
A February 20, 1990 Wyoming State Hospital report indicates petitioner refused to discuss with a female mental health professional the reasons for petitioner's hospitalization at age sixteen and petitioner also refused to discuss any "traumatic events" or "homosexual experiences." Docket entry no. 122-24, at pp. 6-7. Likewise, a June 25, 1996 mental status report contained in petitioner's West Virginia state prison records reflects petitioner was unwilling to discuss the fact "he was verbally, physically, and sexually abused by others as a child and teenager." Docket entry no. 122-24, at p. 96.

173 Docket entry no. 122-22, at pp. 9, 11-14, 32-35.

174 Docket entry no. 122-23, at pp. 3, 6, 8, 16, 18, 23, 51-61, 86, 107, 127-28, 135, 159-64, 177-79, 209-11, 218, 225,
These records include a psychiatric evaluation dated December 6, 1984 which reported petitioner (1) was evasive and manipulative during an interview, (2) became increasingly angry when asked about his criminal record, and (3) "used denial and minimization to a pathological degree." Id., at p. 107. These records also contain numerous references to petitioner's severe substance abuse history. Id., at pp. 107, 121, 124, 141, 189, 226.

175 Docket entry no. 122-24, at pp. 2-3.
Mental health documents accompanying that report reveal petitioner reported (1) using a wide variety of street drugs, (2) frequent sniffing of paint and gas beginning ate age eleven, (3) his main source of income since age thirteen was selling drugs, (4) having had homosexual experiences but refused to discuss same, (5) he was arrested in California for beating up a "faggot," (6) he was arrested in Oregon for stealing, and (7) he has been arrested numerous times for public intoxication. Id.. at pp. 6-10.

176 Docket entry no. 122-25, at pp. 14-16.
A June 25, 1996 mental status report indicates petitioner (1) gave a history of long-term substance abuse and (2) admitted he was sexually abused by other as a child and teenager but refused to discuss those incidents. Id., at pp. 96-98.

177 See note 162, supra.

Moreover, the report of Dr. McGarrahan reveals that petitioner furnished her with information suggesting (1) he had witnessed domestic violence in his home on a regular basis growing up, (2) he witnessed his mother behave promiscuously, (3) he suffered from both a speech impediment and a reading disability during his school years, (4) he had been a significant disciplinary problem in school, and (5) he was a "loner" who did not get along with his peers or teachers.¹⁷⁸ Petitioner does not allege any specific facts, much less furnish any evidence, showing he withheld any of the foregoing information from his capital defense team. While there is evidence in petitioner's prison records reflecting an unwillingness to discuss the details of his childhood sexual abuse, nothing therein suggests petitioner has ever been reluctant to discuss other aspects of his childhood or background.

178 Docket entry no. 122-21, at pp. 3-4.

Petitioner does not allege any facts showing that he lacked personal knowledge of any of the foregoing information or that he was unable, or actually failed, to communicate such information to his defense team.¹⁷⁹ Petitioner has not alleged any facts, much less furnished any evidence, showing that, other than the new allegations of sexual abuse allegedly perpetrated upon petitioner by his own family members, petitioner's trial counsel was unaware at the time of petitioner's capital murder trial of any of the purportedly "new" information petitioner has furnished to this Court. Furthermore, it was objectively reasonable for petitioner's trial counsel to be concerned that calling petitioner's family and friends to testify might open the door to cross-examination about their knowledge of petitioner's other criminal misconduct.

179 S.F. Trial, Volume 24, testimony of Dr. Windel L. Dickerson, at pp. 154-56.

Dr. Dickerson testified extensively concerning his views of petitioner's background and potential for future violence, which he based, in part, on information contained in petitioner's state prison records.¹⁸⁰ The prosecution did not extensively cross- examine Dr. Dickerson concerning the information Dr. Dickerson derived from his review of the contents of petitioner's state prison records. Had petitioner's trial counsel called petitioner's family and friends to testify about their personal knowledge of petitioner's background and their beliefs as to petitioner's potential for future dangerousness or the existence of potentially mitigating information in petitioner's background or character, the prosecution could have cross-examined those same individuals regarding their knowledge of extraneous acts of violence committed by petitioner, including the petitioner's fight with another Missouri prison inmate in which petitioner sustained a broken nose. Given the contents of petitioner's Missouri state prison records now before this Court (which were never presented to petitioner's jury), it is likely petitioner's family and friends would have possessed at least some personal knowledge of the many criminal and violent acts committed by petitioner both in and out of prison during his teen years and early adulthood.

180 While Dr. Dickerson did acknowledge having reviewed petitioner's state prison records from Wyoming and West Virginia, there is no reference anywhere in Dr. Dickerson's testimony to his having reviewed the extensive record of petitioner's numerous acts of violence (including many fights with other inmates) while incarcerated in a Missouri state prison. In fact, Dr. Dickerson appears to have made a conscious attempt during his trial testimony to downplay petitioner's history of violence in prison. S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 154-55 (mentioning petitioner's relatively peaceful stays in West Virginia, Wyoming, and Arkansas facilities but not mentioning petitioner's violent prison disciplinary record while petitioner was incarcerated in the Missouri prison system); and at pp. 161-63, 168 (discussing the successful medication of petitioner while incarcerated in the Wyoming prison system but not mentioning petitioner's violence while incarcerated in Missouri).
Dr. Dickerson's omission of any reference to petitioner's violent Missouri state prison disciplinary records is curious in light of his testimony which at least tangentially acknowledged he had reviewed at least some records on petitioner from Missouri. S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 154-55 (discussing Dr. Dickerson's review of records on petitioner from Wyoming, Arkansas, Missouri and West Virginia). Even more curious is the prosecution's total failure to cross-examine Dr. Dickerson based upon the contents of petitioner's Missouri prison disciplinary records.

Under such circumstances, the tactical decision by petitioner's trial counsel to introduce evidence of petitioner's background through Dr. Dickerson, rather than petitioner's family and friends, was clearly within the broad range of strategic decision-making allowed under the first prong of Strickland. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. at 2536 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time).

Petitioner has furnished this Court with no fact-specific allegations, much less any evidence, showing that any additional or "new" mitigating evidence, unknown to petitioner's defense team at the time of trial, would have been uncovered had petitioner's trial counsel obtained a continuance, issued out-of-state subpoenas, and thereafter obtained the deposition testimony of petitioner's family and friends. Other than information about petitioner's alleged sexual abuse at the hands of his own brothers, mother, and grandmother contained in Dr. McGarrahan's report, petitioner has failed to present this Court with any fact-specific allegations, much less any evidence, showing any of the allegedly "new" potentially mitigating evidence contained in the voluminous documents attached to petitioner's amended petition herein was unknown to petitioner's defense team prior to petitioner's 2000 capital murder trial. Noticeably absent from almost every affidavit or declaration of petitioner's family and friends furnished by petitioner to this Court is any indication those persons were not contacted by petitioner's trial counsel or defense team prior to petitioner's trial.

Furthermore, petitioner has failed to allege any specific facts, much less furnish any evidence, showing petitioner's trial counsel were in possession of information at the time of petitioner's trial which would have necessitated a continuance to permit petitioner's defense team to conduct more investigation into petitioner's background for mitigating evidence. Thus, petitioner has failed to show there is any factual basis for believing the failure of petitioner's trial counsel to request a continuance, issue subpoenas, and obtain the deposition testimony of petitioner's family and friends was objectively unreasonable.

Petitioner has failed to present any specific facts, much less any evidence, showing the failure of his trial counsel to discover any "new" mitigating evidence was the product of anything other than petitioner's own refusal to reveal information to said counsel. Petitioner furnished Dr. McGarrahan with "new" potentially mitigating evidence which petitioner deliberately withheld from Dr. Dickerson by refusing to discuss the details of petitioner's alleged history of childhood sexual abuse. Petitioner cannot complain that his trial counsel and defense team failed to discover potentially mitigating information (such as that contained in Dr. McGarrahan's July, 2009 report) that was within petitioner's personal knowledge at the time of trial but which petitioner refused to disclose to petitioner's trial counsel and defense team, including Dr. Dickerson.

Insofar as petitioner complains that his trial counsel failed to file a motion requesting a continuance to permit further investigation for mitigating evidence, petitioner's complaint is non sequitur. Petitioner's trial counsel did, in fact, file precisely such a motion on July 20, 2000.¹⁸¹ The state trial court denied same in a written Order issued August 23, 2000.¹⁸² Thus, petitioner's trial counsel made and obtained a trial court ruling on precisely the type of pretrial continuance motion petitioner's now complains should have been made. There was, therefore, no deficient performance arising from the failure of petitioner's trial counsel to make such a motion.

181 Trial Transcript, at pp. 97-104.

182 Trial Transcript, at p. 132.

Petitioner's complaints about the failure of his trial counsel to request a continuance, issue out-of-state subpoenas, obtain the deposition testimony of petitioner's family and friends, and conduct a more thorough investigation into petitioner's background all fail to satisfy the first prong of Strickland analysis.

b. No Prejudice

Having independently reviewed the entire record from petitioner's capital murder trial as well as the voluminous new documents petitioner has attached to his pleadings herein, this Court concludes there is no reasonable probability that, but for the failure of petitioner's trial counsel to investigate petitioner's background further and discover (and present) additional mitigating evidence similar to that contained in Dr. McGarrahan's report, the outcome of the punishment phase of petitioner's capital murder trial would have been different.

In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 386; Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a capital murder trial would have been different. Wong v. Belmontes, ___ U.S. at ___, 130 S.Ct. at 390-91.

As was explained above in Section VII.E.3.b. above, presentation of evidence showing petitioner had suffered extensive sexual abuse as a child, with the accompanying life-long psychological damage such abuse was likely to cause in petitioner, would have made the prosecution's case much easier with regard to carrying its burden of proof on the future dangerousness capital sentencing special issue.

Furthermore, petitioner's jury was made aware, through the testimony of petitioner's expert, Dr. Dickerson, of (1) the significant possibility petitioner had been sexually abused as a child, (2) petitioner's long history of substance abuse beginning at an early age, (3) the existence of abnormalities in petitioner's EEG, (4) the possibility petitioner had organic brain damage, and (5) the availability of medications that had proved effective during a past incarceration in controlling petitioner's behavior.¹⁸³ Thus, at least some portions of the "new" mitigating evidence contained in Dr. McGarrahan's report were cumulative of Dr. Dickerson's trial testimony.

183 S.F. Trial, Volume 24, testimony of Dr. Windel Lee Dickerson, at pp. 135-36, 141-42, 147, 152, 156-58, 161-63, 168.

This was a particularly brutal crime committed against a pair of vulnerable children. The evidence before petitioner's capital sentencing jury established beyond any doubt (petitioner's guilty plea to the attempted murder of Krystal Surles effectively removed any doubt as to petitioner's guilt in the almost simultaneous murder of Kaylene Harris) that petitioner fatally slashed the throat of Kaylene Harris and then attempted to fatally slash the throat of Krystal Surles (and very nearly succeeded in killing her as well). The medical examiner's and trace evidence analyst's uncontested expert opinion testimony established that (1) Kaylene's underwear and pajama shorts had been cut from her body¹⁸⁴ and (2) in addition to her neck wound, Kaylene had been stabbed at least fifteen times and showed indications of sexual assault.¹⁸⁵ Petitioner expressed no remorse during either his videotaped confession or his videotaped re-enactment of the murder. Instead, petitioner expressed relief in his videotaped confession that he had been captured and alluded to another of his victims in Kentucky. Petitioner did not admit to having sexually assaulted Kaylene until he gave his written statements almost a week after his arrest (long after Kaylene's autopsy had revealed evidence she had been sexually assaulted). Thus, the brutality involved in petitioner's offense and the petitioner's remorseless conduct following his arrest both would have undermined any emotional appeal for mercy based upon petitioner's allegedly abused and neglected childhood.

184 S.F. Trial, Volume 21, testimony of Bradley Mullins, at pp. 106-07.

185 S.F. Trial, Volume 20, testimony of Dr. Jan Garavaglia, at pp. 92-94, 97-114.
Dr. Garavaglis also testified, in pertinent part, Kaylene's body displayed (1) a pattern of fresh bruises suggesting someone had grabbed her legs, (2) superficial linear abrasions and linear contusions in the left inguinal crease indicating force had been applied to Kaylene's panties and the edge of same cut into Kaylene's body, and (3) relatively fresh trauma to the hymenal ring. Id., at pp. 109-14.

If Dr. Brown's and Dr. Adler's diagnoses are considered accurate, then petitioner's prenatal exposure to alcohol renders him constitutionally incapable of experiencing remorse, much less displaying same. If Dr. McGarrahan's report is deemed credible, then petitioner's propensity for future violence (as a necessary by-product of the physical, emotional, and sexual abuse he suffered as a child) is established practically as a matter of law.¹⁸⁶ It may also help to explain why petitioner appears to have targeted young girls as his victims of choice.¹⁸⁷ Taken collectively, the reports and affidavits of Dr. Adler, Dr. Brown, and Dr. McGarrahan establish petitioner as an individual (1) with a long history of substance abuse, (2) with a long criminal history, (3) with an inability to maintain social relationships, (4) who functions in the borderline range of intelligence, (5) who will likely display a marked propensity for inappropriate behavior throughout his life, and (6) who is unable to apply consequences from past actions. When such expert opinion testimony is combined with a conclusion that the petitioner is constitutionally incapable of experiencing remorse, there is no reasonable prospect that an emotional appeal for mercy would have likely succeeded at the punishment phase of petitioner's capital murder trial.

186 Docket entry no. 122-21, at pp. 10-11 (describing petitioner as possessing "significant peculiarities in his thinking," "quite impulsive and prone to self-destructive behaviors," "socially isolated and detached," "cold and unfeeling," and displaying "anti-social personality features." In sum, Dr. McGarrahan's report supports Dr. Mears' conclusions as to petitioner's propensity for future violence far more than those expressed at trial by Dr. Dickerson.

187 By petitioner's own admission, petitioner had the opportunity to assault Kaylene's blind brother Justin on the night in question but ignored Justin and went off in search of other victims inside the Harris residence.

The final Texas capital sentencing special issue permits a capital sentencing jury to engage in an act of grace. If the jury determines that any evidence exists which diminishes the defendant's moral culpability for his capital offense, the jury may, without fear of review from any state or federal court, excuse a convicted capital murderer from execution. Given the petitioner's inability to furnish a rational explanation for his incredibly brutal offense, and petitioner's inability to demonstrate any remorse for his crimes, there is no likelihood an emotional appeal for mercy on his behalf would have succeeded. The very individuals most likely to have been necessary to present the factual basis for such an emotional appeal, i.e., petitioner's family and friends, would almost all have been subject to cross-examination based upon their failure to protect petitioner from sexual assault during his childhood and their failure to report such abuse to appropriate authorities. Petitioner does not allege any specific facts, much less furnish any evidence, showing he was ready, willing, or able to testify at his 2000 capital murder trial in a manner consistent with the information petitioner related to Dr. McGarrahan during petitioner's May, 2009 clinical interview. Thus, there is no allegation, much less any evidence, before this Court showing that the most salient new mitigating evidence contained in Dr. McGarrahan's report (i.e., the revelations that petitioner was sexually, physically, and emotionally abused by petitioner's mother and grandmother) was available at the time of petitioner's 2000 capital murder trial.

Setting aside the lack of any rational explanation from petitioner for his action in nearly-fatally slashing Krystal Surles' throat,¹⁸⁸ neither petitioner's videotaped confessions nor his written statements offer any rational explanation for his repeatedly stabbing Kaylene or his sexual assault upon her. Thus, petitioner has failed to genuinely accept responsibility for his criminal offenses despite his purported confessions. See Ruiz v. Thaler, 783 F.Supp.2d 905, 940 (W.D. Tex. 2011)(holding capital murder defendant who admitted fatally shooting his victim but denied, despite overwhelming evidence to the contrary, that he had committed the murder as part of a contract killing had displayed the antithesis of sincere contrition and remorse for his crime).

188 Petitioner has never alleged any facts showing he bore any animus against Krystal Surles or her family. In fact, while petitioner admitted in his videotaped confessions and written confessions that he recognizing Kaylene as a member of the Harris family, petitioner has never claimed to have even recognized Krystal Surles.

Here, petitioner learned hours before his burglary of the Harris residence that Kaylene's father would be absent from home. Petitioner then obtained a knife, went to the Harris residence late at night, entered the residence through a window, ignored Kaylene's brother, found Kaylene sleeping, woke her, sexually assaulted her, repeatedly stabbed her, slashed her neck multiple times, then attempted to murder Krystal Surles in a similar manner. While petitioner claimed during his videotaped interview that he was angered by the failure of Kaylene's father to pay petitioner for cocaine, no trace of cocaine was ever found inside the Harris residence.¹⁸⁹ Under such circumstances, petitioner's refusal to admit that his reason for burglarizing the Harris residence was his desire to sexually assault and murder Kaylene, whom he had met before, demonstrated a wholesale failure to genuinely accept responsibility for his capital offense and renders especially dubious and problematic a punishment-phase strategy of throwing petitioner's own mother under the bus.

189 S.F. Trial, Volume 20, testimony of John W. Allen, at p. 15; Volume 20, testimony, of Larry Pope, at p. 70.

This Court has previously held there is no rational basis for a finding of Strickland prejudice when a convicted capital murderer who has refused to accept responsibility for his capital offense argues his trial counsel should have presented double-edged mitigating evidence showing the defendant's mother was promiscuous and abused the defendant during his childhood. See Ruiz v. Thaler, 783 F.Supp.2d at 940-48 (holding petitioner's complaints about his trial counsel's failure to call petitioner's family members to testify about alleged abuse and neglect inflicted upon the petitioner during childhood did not satisfy the prejudice prong of Strickland where the petitioner refused to accept responsibility for his capital offense, had a history of violent criminal conduct, and had failed to exhibit any remorse for his capital offense). It is wholly unreasonable to expect a capital sentencing jury confronted with the cold-blooded murder of an innocent to dispense mercy to a remorseless killer based upon vague allegations of childhood abuse by his own family, especially when the petitioner himself is the lone source of those abuse allegations. Id.

Under such circumstances, there is no reasonable probability that, but for the failure of petitioner's trial counsel to further investigate petitioner's background and present at trial testimony and other evidence consistent with the findings and conclusions of Dr. McGarrahan, Dr. Brown, and Dr. Adler (or the petitioner's family members and friends who furnished affidavits and declarations to this Court), the jury's answers to either of the Texas capital sentencing special issues would have been different. The opinions and findings of those three mental health experts (together with the cryptic admissions of petitioner's family and friends that petitioner displays low intellectual functioning) represented extremely volatile double-edged evidence, equally likely to ensure an affirmative answer to the future dangerousness special issue as to produce an act of grace from the petitioner's jury in response to the mitigation special issue. An emotional appeal for mercy made on behalf of an individual determined beyond a reasonable doubt to have inflicted a brutal crime upon a pair of innocent children and deemed by his own mental health experts to be incapable of ever experiencing remorse for his brutal crimes had virtually no reasonable probability of success.

6. Complaints About Trial Court's Denial of Resources to Trial Counsel for Mitigation Investigation

Petitioner complains that the state trial court denied petitioner's trial counsel's pretrial motions for appointment and funding of investigative and mental health experts and severely restricted the funding available to petitioner's trial counsel to conduct an investigation into petitioner's background for potentially mitigating evidence.¹⁹⁰

190 Amended Petition, at pp. 14-22, 54-106.
Because petitioner has presented these complaints to this Court as Sixth Amendment ineffective assistance claims, as he did in his third state habeas corpus application, it is unnecessary for this Court to address the issue of whether the state trial court's limitations on funding to petitioner's defense team for investigative and expert services violated due process principles. Petitioner had the opportunity in his direct appeal and multiple state habeas corpus proceedings to directly challenge the state trial court's rulings on petitioner's many pretrial motions for funding of investigative and expert services. Any attempt by petitioner at this juncture to raise a due process challenge to the state trial court's pretrial funding rulings is now foreclosed by petitioner's failure to exhaust available state court remedies on such a claim and federal procedural default principles.
It should also be noted petitioner was represented on direct appeal by one of this State's most experienced and knowledgeable appellate advocates, law professor Mark Stevens. That professor Stevens chose not to challenge the state trial court's pretrial funding rulings speaks volumes regarding the lack of merit in any such challenge. Moreover, despite the fact petitioner's trial counsel properly preserved for state appellate review petitioner's challenges to the trial court's pretrial funding rulings, petitioner has never argued his state appellate counsel rendered ineffective assistance by failing to raise points of error on direct appeal challenging the trial court's pretrial funding rulings.

a. No Deficient Performance

Petitioner's trial counsel filed numerous pretrial motions seeking court-funded investigative and expert assistance, including (1) defendant's February 16, 2000 motion for appointment of an investigator,¹⁹¹ (2) defendant's February 16, 2000 motion for appointment of an independent psychiatric expert,¹⁹² (3) defendant's April 27, 2000 ex parte motion for funds to obtain mitigation specialist,¹⁹³ (4) defendant's April 28, 2000 motion to have defendant examined by a psychiatrist,¹⁹⁴ (5) defendant's May 25, 2000 ex parte motion for payment of additional funds,¹⁹⁵ and (6) defendant's June 21, 2000 ex parte motion for payment of additional funds.¹⁹⁶ The state trial court ruled on most of those motions during the June 25, 2000 pretrial hearing.¹⁹⁷ In a written Order issued August 23, 2000, the trial court granted the defense an additional ten thousand dollars for expert or defense witnesses.¹⁹⁸ During an ex parte pretrial hearing held September 5, 2000, petitioner's trial counsel, Dr. Dickerson, and defense investigator Vince Gonzalez convinced the state trial court to authorize petitioner's transport to a medical facility so petitioner could be subjected to a PET scan.¹⁹⁹ Thus, petitioner's trial counsel did everything reasonably necessary to preserve for state appellate review any complaint about the state trial court's alleged denial of adequate funding or resources for investigative and mental health expertise to petitioner's trial counsel. Petitioner does not allege any specific facts, much less furnish any evidence, showing there was anything more petitioner's trial counsel could have done within the bounds of the law to solicit additional state-court funding for investigation into petitioner's background or mental health for mitigating evidence.

191 Trial Transcript, at pp. 15-17.

192 Trial Transcript, at pp. 22-23.

193 Trial Transcript, at pp. 49-52.

194 Trial Transcript, at pp. 56-57.

195 Trial Transcript, at pp. 61-66.

196 Trial Transcript, at pp. 69-73. The trial court denied this motion in a written Order issued June 23, 2000. Id., at p. 74.

197 S.F. Trial, Volume 3, at pp. 1376-39.

198 Trial Transcript, at p. 132.

199 S.F. Trial, Volume 14, at pp. 191-207.

Insofar as petitioner contends he possessed a constitutional right to unlimited state court funding to permit hundreds of hours of face-to-face interviews of everyone who had ever met petitioner in his entire life, as is argued by petitioner's mitigation expert Russell Stetler,²⁰⁰ that argument has no legal support. See Smith v. Collins, 977 F.2d at 960: "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources." Furthermore the new rule advocated by Mr. Stetler and petitioner herein is foreclosed by the non-retroactivity doctrine announced in Teague v. Lane, supra.

200 See docket entry no. 122-32 and 122-33.
This Court respectfully declines Mr. Stetler's invitation to adopt a new rule of federal constitutional procedure mandating virtually unlimited funding for unlimited face-to-face interviews of every person who might arguably possess any personal knowledge of a capital murder defendant's background. No federal court has ever adopted the new rule urged by petitioner and Mr. Stetler herein.

Petitioner has failed to allege any specific facts, much less furnish any evidence, showing the efforts of petitioner's trial counsel to obtain court-appointed investigative and expert assistance fell below an objective level of reasonableness. The petitioner's complaints about this aspect of his trial counsel's performance fail to satisfy the first prong of Strickland analysis.

b. No Prejudice

For the reasons set forth at length in Section VII.E.5.b. above, there is no reasonable probability that, but for the alleged failure of petitioner's trial counsel to more aggressively seek additional funding from the state trial court for investigative or expert expenses, the outcome of the either phase of petitioner's capital murder trial would have been any different.

7. Failure to Voir Dire Jury Venire on Parole Eligibility

In his third claim herein, petitioner argues his trial counsel failed to adequately voir dire the jury venire concerning their views on the impact of Texas parole law on the Texas capital sentencing special issues.²⁰¹

201 Amended Petition, at pp. 151-56.
Insofar as petitioner complains that his federal habeas counsel was denied funding by this Court for the purposes of interviewing petitioner's state petit jurors regarding their views on state parole law (Amended Petition, at p. 155), petitioner's complaint is non sequitur. Rule 606(b), Fed.R.Evid, precludes this Court from considering any testimony or declarations of petitioner's former jurors in which they speculate upon how their subjective thought processes might have differed had they been presented with additional or different mitigating evidence or different jury instructions regarding Texas parole law. Tanner v. United States, 483 U.S. 107, 121-22, 107 S.Ct. 2739, 2748, 97 L.Ed.2d 90 (1987) (juror affidavits may not be admitted to impeach the jury's verdict, even when there are allegations contained therein that a member of the jury was sleep, inattentive, lost in thought, or even intoxicated during trial or deliberations); Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005)("Under Rule 606(b) of the Federal Rules of Evidence, jurors' affidavits are inadmissible 'regarding the following four topics: (1) the method or arguments of the jury's deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mindset or emotions of any juror during deliberation, and (4) the testifying juror's own mental process during the deliberations.'"), cert. denied, 549 U.S. 840 (2006).

a. Procedural Default on Unexhausted Federal Claim

Petitioner did present a similar complaint to the state habeas court in the course of his first state habeas corpus proceeding but presented same as solely a state-law claim, with no federal gloss thereon.²⁰² Petitioner failed to "fairly present" this same ineffective assistance complaint as a federal constitutional claim in either his second or third state habeas corpus applications. Therefore, petitioner has failed to exhaust available estate remedies on same and has procedurally on same for the same reasons contained in Section V.C. above. See Hughes v. Dretke, 412 F.3d at 594-95 (holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments); Beazley v. Johnson, 242 F.3d at 264-68 (holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application).

202 State Habeas Transcript, at pp. 48-49.

b. Alternatively, No Deficient Performance

As was explained in Section IV.D. above, petitioner possessed no federal constitutional right to voir dire his jury venire regarding their views on how Texas parole law might impact their deliberations at the punishment phase of petitioner's capital murder trial. Thus, the legal premise underlying petitioner's third claim herein is without arguable merit.

Moreover, when petitioner's trial counsel did attempt to voir dire petitioner's jury venire on that subject, the state trial court sustained the prosecution's objections thereto. The Texas Court of Criminal Appeals subsequently held petitioner's trial counsel's efforts to voir dire petitioner's jury venire amounted to an impermissible attempt to commit the venire members to a particular verdict based upon particular facts. Sells v. State, 121 S.W.3d at 754-57. Thus, petitioner has failed to allege any specific facts showing he had a federal constitutional right or a state procedural right to voir dire his jury venire on their views regarding how Texas parole law might impact their deliberations at the punishment phase of a Texas capital murder trial.

Petitioner's trial counsel cannot be faulted for failing to do the impossible. See United States v. Cronic, 466 U.S. 648, 656 n.19, 104 S.Ct. 2039, 2045 n.19, 80 L.Ed.2d 657 (1984)("the Sixth Amendment does not require that counsel do what is impossible or unethical.").

The ultimately unsuccessful efforts of petitioner's trial counsel to voir dire petitioner's jury venire on the potential impact of Texas parole law on their punishment-phase deliberations did not cause the performance of said counsel to fall below an objective level of reasonableness.

c. Alternatively, No Prejudice

Petitioner's capital sentencing jury was well aware that petitioner would have to serve at least forty years before becoming eligible for release on parole if petitioner were sentenced to serve a term of life imprisonment. At the punishment phase of petitioner's capital murder trial, Dr. Dickerson testified without contradiction to this very fact.²⁰³ It is equally clear from the Texas Court of Criminal Appeals' opinion affirming petitioner's conviction and sentence on direct appeal that any voir dire inquiry designed to commit venire members to a particular punishment-phase verdict based upon their view of Texas parole law would have been improper under Texas law. The state trial court made it abundantly clear that it would not permit petitioner's trial counsel to interrogate venire members regarding how Texas parole law might impact their punishment-phase deliberations.

203 S.F. Trial, Volume 25, testimony of Dr. Windel L. Dickerson, at pp. 30, 45.

This Court has undertaken an independent review of the juror questionnaires and voir dire testimony of each of the twelve members of petitioner's petit jury and the two alternate jurors.²⁰⁴ None of the petitioner's jurors expressed any hesitation or reservation during their individual voir dire examination over their ability to (1) answer either of the capital sentencing special issues in a manner favorable to the defense if they felt the evidence compelled such a verdict or (2) impose the minimum sentence of five years imprisonment if they convicted petitioner of the lesser-included offense of murder and they felt same appropriate.²⁰⁵

204 The juror questionnaires for all of these individuals are found at Trial Transcript, at pp. 160-257.
Each of the those individuals answered "no" to the following question on their written juror questionnaires: "Would the fact that Life Imprisonment is the minimum sentence for capital murder prevent or seriously impair the performance of your duty as a juror to render a verdict according to the law and the evidence?" Trial Transcript, at p. 165 (venire member Miriam Carrizales), at p. 172 (venire member Hilda Castillo Lopez), at p. 179 (venire member James Clifford Jones), at p. 186 (venire member William Cresswell Cooper), at p. 193 (venire member Jay S. Hayden), at p. 200 (venire member Aida Victoria Gomez), at p. 207 (venire member Dwight Landon Brown), at p. 214 (venire member John Henry Reavis), at p. 221 (venire member William Grady King), at p. 228 (venire member Eleanor A. Stark), at p. 235 (venire member Anna Marie Riegel), at p. 242 (venire member Pedro Vidales), at p. 249 (venire member Kevin John Czechowicz), and at p. 256 (venire member Aldina Blanche Summers Fowler).
With the exceptions of venire members Lopez and Stark, all of the foregoing individuals also answered the following question "no": "Do you believe that Life Imprisonment would always be an excessively lenient sentence for a person conviction of capital murder?" Id.

205 S.F. Trial, Volume 6, voir dire examination of Miriam Carrizales, at pp. 43-45, 62, 65; Volume 6, voir dire examination of Hilda C. Lopez, at pp. 82-86, 100, 103; Volume 6, voir dire examination of James C. Jones, at pp. 195-99, 208-10; Volume 8, voir dire examination of William C. Cooper, at pp. 125-28, 131; Volume 9, voir dire examination of Jay Hayden, at pp. 135-37, 143-44; Volume 9, voir dire examination of Aida V. Gomez, at pp. 161-66, 170, 172-74; Volume 10, voir dire examination of Dwight L. Brown, at pp. 65-69; Volume 11, voir dire examination of John Henry Reavis, at pp. 66-70, 77, 79-80; Volume 12, voir dire examination of William G. King, at pp. 125-29, 132; Volume 12, voir dire examination of Eleanor A. Stark, at pp. 156-59; Volume 15, voir dire examination of Anna M. Riegel, at pp. 45-49, 54, 56; Volume 17, voir dire examination of Pedro Vidales (erroneously spelled "Urdales"), at pp. 72-76; Volume 17, voir dire examination of Kevin J. Czechowicz, at pp. 141-43, 147-48, 151; Volume 18, voir dire examination of Aldina Fowler, at pp. 44-48.
In most cases, petitioner's trial counsel accepted the foregoing venire members without objection. S.F. Trial, Volume 6, at p. 65 (Miriam Carrizales); Volume 6, at p. 106 (Hilda Lopez); Volume 6, at p. 216 (James C. Jones); Volume 8, at p. 136 (William C. Cooper); Volume 9, at p. 146 (Jay Hayden); Volume 9, at p. 174 (Aida Gomez); Volume 10,, at p. 71 (Dwight L. Brown); Volume 11, at p. 80 (John Henry Reavis); Volume 12, at p. 132 (William G. King); Volume 12, at p. 163 (Eleanor A. Stark); Volume 15, at p. 57 (Anna M. Riegel); Volume 17, at p. 152 (Kevin J. Czechowicz); Volume 18, at p. 50 (Aldina Fowler).

Moreover, consistent with Texas law, at the punishment phase of trial, petitioner's jury was instructed on the specific implications of Texas parole law, including the fact that "eligibility for parole" does not guarantee "release" on parole:

Under the law applicable in this case, if the defendant is sentenced to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release or parole, but not until the actual timer served by the defendant equals 40 years, without consideration of any good conduct time. It cannot be accurately predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.²⁰⁶

Given this jury instruction, and the clear impropriety under state law of making the voir dire inquiry petitioner now demands his trial counsel should have made, there is no reasonable probability that, but for the failure of petitioner's trial counsel to more aggressively voir dire petitioner's jury venire regarding their views on Texas parole law, the outcome of the punishment phase of petitioner's capital murder trial would have been any different. See Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993)("juries are presumed to follow their instructions").

206 Trial Transcript, at pp. 274-75.

Petitioner (1) gave an arguably insincere, remorseless, videotaped confession to Kaylene Harris' brutal murder (in which he failed to explain why he had repeatedly stabbed her and also failed to even mention his sexual assault of Kaylene), (2) re-enacted his capital offense with remarkably little emotion during another videotaped session, (3) instructed law enforcement officials where they could find the murder weapon, (4) expressed gratitude that he had been caught, (5) pleaded guilty to attempting to murder Krystal Surles in a manner similar to how he murdered Kaylene, but (6) thereafter, chose not to plead guilty to Kaylene's capital murder. In view of the overwhelming evidence of petitioner's guilt on the charge of capital murder and the complete lack of any evidence in the record showing petitioner had made a sincere acceptance of responsibility for his capital offense, there is no reasonable probability that, but for the failure of petitioner's trial counsel to more diligently attempt to voir dire petitioner's jury venire on their views of Texas parole law, the outcome of the punishment phase of petitioner's capital murder trial would have been any different.

8. No Presumption of Prejudice

Petitioner argues that he is entitled to a "presumption of prejudice" because petitioner's trial counsel operated under a conflict of interest resulting from said counsel's pursuit of personal financial gain from petitioner's conviction.²⁰⁷

207 Amended Petition, at pp. 99-105.

a. State Court Disposition

Petitioner raised this same claim as part of his first claim for relief in his first state habeas corpus application but supported same with little more than an extremely vague affidavit from Ann Matthews that was so lacking in specificity it did not appear to have been based upon personal knowledge and an unsworn, unverified, letter dated January 29, 2003 from Bob Schanz to Ms. Matthews and petitioner's first state habeas counsel in which Mr. Schanz relates information other persons had told him about proposed payments of an unknown amount of money that may (or may not) have been made at unspecified points in time to petitioner's former trial counsel or possibly to someone else on petitioner's defense team.²⁰⁸ In reply, the State furnished the state habeas court with a detailed affidavit from petitioner's former trial counsel in which said counsel, in pertinent part, denied receiving any remuneration (or that any member of the defense team received any remuneration) in connection with said counsel's representation of petitioner other than that paid by Val Verde County for professional services rendered in connection with petitioner's capital murder trial.²⁰⁹

208 Copies of the strange two-page "affidavit" submitted by Ms. Matthews appear at First State Habeas Transcript, at pp. 63-53, 80-81. The unsworn, unverified, Bob Schanz letter appears at First State Habeas Transcript, at p. 55.

209 First State Habeas Transcript, at p. 74. The entire affidavit attorney Victor Robert Garcia appears at First State Habeas Transcript, at pp. 73-76.

In its Order setting forth its findings of fact and conclusions of law, the state habeas trial court expressly (1) found petitioner's trial counsel never received any remuneration during his representation of petitioner other than that paid for by Val Verde County, Texas and (2) concluded petitioner's trial counsel never at any time failed or compromised said counsel's duty to provide reasonable and effective assistance to petitioner.²¹⁰ The Texas Court of Criminal Appeals adopted this factual finding and conclusion when it denied petitioner's first state habeas corpus application on the merits. Ex parte Tommy Lynn Sells, WR-62,552-01 (Tex. Crim. App. August 31, 2005).

210 First State Habeas Transcript, at pp. 102, 104.

b. AEDPA Review

Pursuant to Section 2254(e)(1), the state habeas trial court's factual finding (that petitioner's trial counsel received no remuneration beyond that authorized by law from Val Verde County for representing petitioner) is entitled to deference from this Court because petitioner has presented this Court with no evidence, much less clear and convincing evidence, establishing that factual finding to be erroneous. Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with 'clear and convincing evidence.'"); Rice v. Collins, 546 U.S. at 338-39, 126 S.Ct. at 974 ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'"); Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 ("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the 'presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e)(1). Thus, the factual premise underlying petitioner's argument for a presumption of prejudice (i.e., that petitioner's trial counsel benefitted financially from extraneous business dealings during said counsel's representation of petitioner) does not exist in this federal habeas proceeding.

c. Alternatively, No Merits Under De Novo Review

Ignoring the fact petitioner presented his conclusory "conflict of interest" ineffective assistance claim during his first state habeas corpus proceeding and lost on the merits of that claim, petitioner is still not entitled to benefit from a presumption of prejudice in this cause.²¹¹

211 Petitioner cannot rely upon the Supreme court's recent holding in Martinez v. Ryan, supra, to circumvent the Texas Court of Criminal Appeals' rejection on the merits of petitioner's conflict of interest claim in the course of petitioner's first state habeas corpus proceeding. On its face, Martinez applies only to claims for relief under the Strickland standard complaining about the performance of trial counsel and must be supported by a showing the underlying ineffective assistance claim is a substantial one. Martinez v. Ryan, ___ U.S. at ___, 132 S.Ct. at 1318. Petitioner has failed to present this court with any evidence establishing his trial counsel ever benefitted financially from said counsel's representation of petitioner in a manner that compromised said counsel's duties of zealous advocacy and professional loyalty to petitioner.
As explained above, the purported "affidavit" of Ann Matthews is a font of ambiguity with regard to (1) exactly whom it is she claims received money, (2) the identity of the person or persons who allegedly paid the money in question, (3) the time frame in which the money in question was paid, or (4) the contractual consideration, if any, given by petitioner's trial counsel or defense team in exchange for receipt of the money in question. Ms. Matthews alleges no specific facts showing when, where, or how she believes petitioner's defense team convinced petitioner to confess to any identifiable criminal offense. In fact, the bizarre wording of Ms. Matthews' purported "affidavit" raises serious questions in this Court's mind as to whether it even purports to be based upon her personal knowledge (rather than rank hearsay), much less whether it satisfies the requirements of 28 U.S.C. §1746. In sum, Ms. Matthews' purported affidavit is so non-specific and ambiguous it fails to furnish any admissible evidence of any wrong-doing or other impropriety on the part of petitioner's trial counsel. The unsworn, unverified letter of Bob Schanz, dated several years after petitioner's 2000 capital murder trial likewise lacks even a semblance of specificity regarding exactly when any money was allegedly forwarded to petitioner's defense team or the circumstances which led to that alleged transfer of funds.

(1) The Constitutional Standard

The Sixth Amendment right to counsel includes the right to representation that is free from any conflict of interest. United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006); United States v. Vasquez, 298 F.3d 354, 360 (5th Cir. 2002), cert. denied, 537 U.S. 1024 (2002); United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993), cert. denied, 510 U.S. 1016 (1993).

(2) Inapplicability of Cuyler v. Sullivan

A "conflict of interest" exists when defense counsel places himself in a position conducive to divided loyalties. United States v. Vasquez, 298 F.3d at 360; United States v. Vaquero, 997 F.2d at 89. "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); United States v. Infante, 404 F.3d 376, 390-91 (5th Cir. 2005); Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005); United States v. Salado, 339 F.3d 285, 291 (5th Cir. 2003). The Cuyler standard differs substantially from the Strickland test in that Cuyler requires no showing of "prejudice." See Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. at 2067 (recognizing prejudice is presumed under the Cuyler test only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."); United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002)("When a defendant has been able to show that his counsel 'actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance,' constitutional error has occurred and prejudice is inherent in the conflict."); Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000)(discussing the distinction between the Cuyler and Strickland tests).

Under the Cuyler test, an "actual conflict" exists when defense counsel is compelled to compromise his 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. Perillo v. Johnson, 205 F.3d at 781. A defendant must show more than a speculative or potential conflict. United States v. Garcia-Jasso, 472 F.3d at 243; United States v. Infante, 404 U.S. at 391. The defendant must demonstrate that his counsel made a choice between possible alternative courses of action; if he did not make such a choice, the conflict remained hypothetical. United States v. Garcia-Jasso, 472 F.3d at 243. The mere possibility of a conflict, absent a showing that the attorney actively represented conflicting interests, is not sufficient. Cuyler v. Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719 ("But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance."); United States v. Villarreal, 324 F.3d 319, 327 (5th Cir. 2003).

"An adverse effect on counsel's performance may be shown with evidence that counsel's judgment was actually fettered by concern over the effect of certain trial decisions on other clients." United States v. Infante, 404 F.3d at 393; Perillo v. Johnson, 205 F.3d at 807. The defendant must establish adverse effect by demonstrating there was some plausible alternative defense strategy that could have been pursued, but was not, because of the actual conflict. United States v. Infante, 404 F.3d at 393; Perillo v. Johnson, 205 F.3d at 781; Beathard v. Johnson, 177 F.3d 340, 345 (5th Cir. 1999), cert. denied, 528 U.S. 954 (1999). "To prevail, a defendant must identify 'some plausible defense strategy or tactic that might have been pursued but was not, because of the conflict of interest.'" United States v. Villarreal, 324 F.3d at 327; Hernandez v. Johnson, 108 F.3d 554, 560 (5th Cir. 1997), cert. denied, 522 U.S. 984 (1997); Perillo v. Johnson, 79 F.3d 441, 449 (5th Cir. 1996). "A conflict of interest is present 'whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing.'" Ramirez v. Dretke, 396 F.3d at 650. "An actual conflict of interest exists if counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing." United States v. Salado, 339 F.3d at 291; United States v. Rico, 51 F.3d 495, 509 (5th Cir. 1995), cert. denied, 516 U.S. 883 (1995).

In Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995)(en banc), cert. denied, 517 U.S. 1157 (1996), the Fifth Circuit rejected a broad-ranging application of the Cuyler standard to complaints of ineffective assistance arising from alleged conflicts of interest by defense counsel. See Beets v. Scott, 65 F.3d at 1268, (holding that not every potential conflict, even in multiple client representation cases, is an "actual conflict' for Sixth Amendment purposes). Subsequently, the Fifth Circuit has consistently refused to apply the Cuyler test outside the context of multiple representation situations. See, e.g., United States v. Garza, 429 F.3d 165, 172 (5th Cir. 2005)("Cuyler only applies where an attorney was effectively, if not technically, representing multiple clients in the same proceeding."), cert. denied, 546 U.S. 1220 (2006); United States v. Newell, 315 F.3d at 516 (holding Strickland "more appropriately gauges an attorney's alleged conflict of interest arising not from multiple client representation but from a conflict between the attorney's personal interest and that of his client"); Perillo v. Johnson, 205 F.3d at 781 ("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."); Moreland v. Scott, 175 F.3d 347, 349 (5th Cir. 1999)("cases in which it is alleged that the attorney's representation was affected by his own self-interest are evaluated under the more relaxed Strickland standard."), cert. denied, 528 U.S. 937 (1999); Hernandez v. Johnson, 108 F.3d at 559 ("This circuit has limited Cuyler to actual conflicts resulting from a lawyer's representation of multiple criminal defendants."). Petitioner's complaints of "conflict of interest" by his trial counsel fall outside the situations in which the fifth Circuit applies the Cuyler test. United States v. Garza, 429 F.3d at 172; Perillo v. Johnson, 205 F.3d at 781; Hernandez v. Johnson, 108 F.3d at 559; Beets v. Scott, 65 F.3d at 1268.

Petitioner's cryptic complaints about the alleged financial dealings of his trial counsel and members of his defense team with members of the national media during petitioner's trial do not satisfy either the "actual conflict" or "adverse effect" requirements of the narrow Cuyler exception to the Strickland standard. Neither Ann Matthews' purported affidavit nor the unsworn, unverified letter of Bob Schanz furnish any specific facts regarding the timing or nature of any alleged financial transaction between any member of petitioner's defense team and any other identifiable individual or legal entity. It is unclear whether Ms. Matthews or Mr. Schanz are claiming to possess personal knowledge of any information regarding any such alleged transaction. The mere fact members of petitioner's defense team may have had contact with members of the fourth estate or even unidentified officials in Missouri during the course of petitioner's trial does not, standing alone, establish an "actual conflict" within the meaning of Cuyler; nor does it satisfy the "adverse effect" prong.

Petitioner presented the state habeas court with no evidence showing his trial counsel ever represented or had any identifiable financial dealing with any person or entity whose legal interests might have been adverse to, or even potentially in conflict with, those of petitioner. Thus, petitioner failed to present the state habeas court (and has failed to furnish this Court) with any evidence or specific facts showing that attorney Garcia ever suffered from an "actual conflict" sufficient to make the Cuyler standard applicable to petitioner's trial. Moreover, as explained above, petitioner failed to present the state habeas court with any evidence showing Garcia's performance during voir dire or trial was "adversely effected" by virtue of Garcia's relationship with any other person or entity.

(3) Cronic Inapplicable

In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as Strickland, the Supreme Court held a presumption of prejudice similar to that recognized in Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), arises in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and finally, where the circumstances are such that even competent counsel very likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047. As examples of the latter two situations, respectively, the Supreme Court cited the denial of effective cross-examination in Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974)(defendant was denied the opportunity to cross-examine the prosecution's key witness for bias), and the incendiary circumstances surrounding the trial of the so-called "Scottsboro Boys" addressed in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)(no individual attorney was appointed to represent the defendants and trial proceeded after a volunteer attorney from another state appeared on the first day of trial but confessed he had not had an opportunity to prepare for trial). United States v. Cronic, 466 U.S. at 659-61, 104 S.Ct. at 2047-48. In a footnote, the Supreme Court recognized the continuing efficacy of its earlier holding in Cuyler, presuming prejudice where a defendant establishes an actual conflict of interest adversely affected his counsel's performance. United States v. Cronic, 466 U.S. at 661 n.31, 104 S.Ct. at 2048 n.31.

In Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002), the Supreme Court reiterated that the second exception to the requirement of Strickland "prejudice" it had envisioned in Cronic was limited to situations in which defense counsel completely failed to subject the prosecution's case to meaningful adversarial testing. See Bell v. Cone, 535 U.S. at 697-98, 122 S.Ct. at 1851-52 (holding complaints about trial counsel's waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution's case throughout the sentencing proceeding).

The presumption of prejudice recognized in Cronic does not apply where the defendant complains of merely shoddy or poor performance by his trial counsel; for a defendant to be entitled to such a presumption, his attorney's failure must be complete. See Bell v. Cone, 535 U.S. at 697, 122 S.Ct. at 1851 (holding the presumption applicable only when counsel entirely failed to subject the prosecution's case to meaningful adversarial testing); United States v. Griffin, 324 F.3d 330, 364, 364 (5th Cir. 2003)("When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice."); Riddle v. Cockrell, 288 F.3d 713, 718 (5th Cir. 2002)(holding "constructive denial of counsel" sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense), cert. denied, 537 U.S. 953 (2002); Mayo v. Cockrell, 287 F.3d 336, 340 n.3 (5th Cir. 2002)(holding the same), cert. denied, 537 U.S. 975 (2002); Burdine v. Johnson, 262 F.3d 336, 344 n.4 (5th Cir. 2001)(holding the same), cert. denied, 535 U.S. 1120 (2002); Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000)("'A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.' We have found constructive denial in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and official interference with the defense; and have stated that constructive denial will be found when counsel fails to subject the prosecution's case to any meaningful adversarial testing."(citations and footnote omitted)).

Petitioner has failed to allege any specific facts, much less furnished any admissible evidence, establishing that his trial counsel's performance fell within any of the categories recognized in Cronic as a basis for a presumption of prejudice.

9. Failure to Object to Twelve-Ten Rule & Prosecution's Punishment-Phase Jury Argument

a. The Claims

In his twelfth claim herein, petitioner argues his trial counsel rendered ineffective assistance by failing to object to (1) the trial court's punishment phase jury instructions regarding the Texas twelve-ten rule²¹² and (2) the prosecutor's closing punishment-phase argument that ten votes were necessary to return a verdict of life imprisonment.²¹³

212 Amended Petition, at p. 246.

213 Amended Petition, at p. 251.

b. State Court Disposition

At the punishment phase of petitioner's capital murder trial, without objection from petitioner's trial counsel,²¹⁴ the trial court instructed petitioner's jury in accordance with Texas law²¹⁵ that all twelve jurors needed to agree unanimously before the jury could answer the first special issue, i.e., the future dangerousness special issue, affirmatively and ten or more jurors had to agree to answer the first special issue negatively before the jury could return a negative answer to the special issue.²¹⁶ The trial court also instructed the jury that, in the event the jurors were unable to answer the first special issue in the manner set forth above, the presiding juror should not sign either answer to that special issue.²¹⁷

214 Petitioner's trial counsel raised no objections to the trial court's punishment phase jury charge. S.F. Trial, Volume 25, at p. 83.

215 Article 37.071, §2(d)(2), Texas Code Criminal Procedure Annotated (Vernon Supp. 2011). This particular provision of the Texas capital sentencing statute has not changed since the date of petitioner's offense and trial.

216 At the punishment phase of petitioner's trial, the trial court instructed the jury, in pertinent part, as follows:

You are instructed that you may not answer Special Issue No. 1. "Yes" unless all jurors agree to such answer. Further, you may not answer this Special Issue "No" unless ten (10) or more jurors agree. It is not necessary that members of the jury agree on what particular evidence supports a negative answer - that is, an answer of "No" -- to Special Issue No. 1.

Trial Transcript, at p. 272.

217 Trial Transcript, at pp. 272-73: "In the event the jury is unable to agree upon an answer to Special Issue No. 1. under the conditions and instructions out lined above, the Presiding Juror will not sign either form of answer to the Special Issue."

With regard to the second or "mitigating evidence" special issue, the trial court instructed petitioner's jury that it could answer that special issue negatively only if the jury unanimously agreed to do so and that ten "yes" votes were needed to answer this special issue affirmatively.²¹⁸ Once more, the trial court instructed the jury in accordance with Texas law²¹⁹ that if the jury were unable to answer the mitigation special issue in the manner set forth above, the presiding juror should not sign either form of answer to that special issue.²²⁰

218 Trial Transcript, at p. 273:

You are further instructed tat if the jury makes an affirmative finding to Special Issue No. 1 -- that is, an answer of "Yes," then the jury shall answer Special issue No. 2 below.
You will answer this Special Issue No. 2. "Yes" or "No."
You may not answer the Issue "No" unless all jurors agree to such answer and you may not answer such issue "Yes" unless ten (10) or more jurors agree to such answer.
The jury, however, need not agree on what particular evidence supports an affirmative finding on this Special Issue.

219 Article 37.071, §2(f), Texas Code Criminal Procedure Annotated (Vernon Supp. 2011). Again, this aspect of the Texas capital sentencing statute has not changed since the date of petitioner's offense and trial.

220 Trial Transcript, at p. 274: "In the event that the jury is unable to agree to an answer to this Special Issue under the conditions and instructions given herein, the Presiding Juror will not sign either form of answer to the Special Issue."

During closing argument at the punishment phase of petitioner's capital murder trial, without objection from petitioner's trial counsel, the prosecutor argued in pertinent part as follows:

Then it goes on to tell you in order for you to answer number one yes all jurors have to agree with that decision. If for some reason you decide to

answer that question or that issue no, it takes ten of you to do that.
Then the court gives you this special issue form, and the one that we're going to ask you to sign is the very first one saying that yes, we the jury unanimously find and determine beyond a reasonable doubt that the answer to special issue number one is yes.
Paragraph nine goes on to instruct you that if the jury makes an affirmative finding to special issue number one then you shall consider special issue number two. Remember how we talked about that sequence, that the only way you would proceed to the next issue was if you answered the first one yes, so now having found that you answered it yes, then and only then do you proceed to issue number two.
Again, the court instructs you that you may not answer the issue no unless all -- unless there are ten of you that agree to answer no. In order to answer it -- I'm sorry, in order to answer it no all of the jurors have to agree, because if you say -- remember, the first one has to be yes, the second one has to be no to receive the death penalty. If you are going to say that there is some type of mitigating circumstance then it is going to take ten of you to agree to say yes.

S.F. Trial, Volume 25, at pp. 89-90.

At no point in either his direct appeal or in any of his three state habeas corpus proceedings did petitioner ever argue his trial counsel was ineffective for failing to object to any aspect of the trial court's punishment phase jury instructions.

Petitioner did present his complaint regarding the failure of his trial counsel to object to the prosecution's closing punishment-phase jury argument as the ninth claim in petitioner's third state habeas corpus application.²²¹ The Texas Court of Criminal Appeals dismissed this complaint, along with all of petitioner's other claims, when it dismissed petitioner's third state habeas corpus application under state-writ abuse principles. Ex parte Tommy Lynn Sells, WR-62,552-03, 2010 WL 5168591 (Tex. Crim. App. December 15, 2010).

221 Third state Habeas Transcript, at p. 43.

c. Procedural Default on Unexhausted Claim

Petitioner did not "fairly present" the first of these two complaints about the performance of his trial counsel to the state courts, either on direct appeal or in any of his three state habeas corpus proceedings. At no point in any of his state habeas corpus applications did petitioner fault his trial counsel for failing to object to trial court's punishment-phase jury instruction on the Texas twelve-ten rule. Therefore, petitioner procedurally defaulted on the first of these two complaints of ineffective assistance. See Hughes v. Dretke, 412 F.3d at 594-95 (holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments); Beazley v. Johnson, 242 F.3d at 264-68 (holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application).

d. Procedural Default on Dismissed Claim

The Texas Court of Criminal Appeals' dismissal of the second ineffective assistance claim contained in petitioner's twelfth claim herein on state writ-abuse principles constitutes a form of procedural default on same which bars federal habeas review of that claim. See, e.g., Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008) ("This court has held that, since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar."), cert. denied, ___ U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009); Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005)(holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling), cert. denied, 547 F.3d 1136 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004)(holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), cert. denied, 543 U.S. 1124 (2005); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir. 2003)(holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003(recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163 (2004).

The Supreme Court's recent holding in Martinez v. Ryan, supra, affords petitioner no reprieve from his procedural default on the second of his ineffective assistance claims contained in his twelfth claim herein. As the Supreme Court explained, in order to benefit from the equitable exception to procedural default principles recognized in Martinez, a federal habeas petitioner must show that his underlying ineffective-assistance-of-trial-counsel claim is a substantial one. Martinez v. Ryan, ___ U.S. at ___, 132 S.Ct. at 1318. For the reasons set forth hereinafter, petitioner's complaint about the failure of his trial counsel to object to the prosecution's punishment-phase closing argument lacks any arguable merit.

e. Alternatively, No Merits

(1) Failure to Object to Twelve-Ten Rule Instruction

(a) No Deficient Performance

Petitioner argues his trial counsel should have objected to the trial court's recitation of the Texas twelve-ten rule as unconstitutional under a variety of federal constitutional principles, including those set forth in the Supreme Court's opinions in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).²²²

222 Amended Petition, at pp. 242-53.

Petitioner's argument that the Texas twelve-ten rule violates federal constitutional principles has repeatedly been rejected by both the Fifth Circuit and this Court. See Blue v. Thaler, 665 F.3d 647, 669-70 (5th Cir. 2011)(rejecting the same Eighth Amendment arguments based upon Romano v. Oklahoma raised by petitioner herein challenging the Texas twelve-ten rule), cert. filed March 21, 2012 (no. 11-9526); Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas twelve-ten rule in the course of affirming this Court's rejection of claims virtually identical to those raised by petitioner herein); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000)(holding Mills inapplicable to a Texas capital sentencing proceeding), cert. denied, 531 U.S. 849 (2000); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996)(holding the same), cert. denied, 519 U.S. 854 (1996); Hughes v. Johnson, 191 F.3d 607, 628-29 (5th Cir. 1999)(holding both Mills and McKoy inapplicable to the Texas capital sentencing scheme), cert. denied, 528 U.S. 1145 (2000); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir. 1994)("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."), cert. denied, 513 U.S. 1067 (1995); Martinez v. Dretke, 426 F.Supp.2d at 533-34 (holding the same); Bartee v. Quarterman, 574 F.Supp.2d at 700-01 (rejecting reliance upon Mills and McKoy as bases for challenging the very different Texas capital sentencing scheme).

The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as "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." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000)(emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n.9, 119 S.Ct. 2090, 2102-03 & n.9, 144 L.Ed.2d 370 (1999)(holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998)(holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998)(holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993)(holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence).

This "reasonable likelihood" standard does not require the petitioner to prove the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). "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 the trial.'" Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198.

Nothing in petitioner's punishment-phase jury charge can reasonable be construed as foreclosing the consideration by petitioner's jury of any of the potentially mitigating evidence actually presented during petitioner's capital murder trial. None of petitioner's jurors could rationally have been led to believe by petitioner's punishment-phase jury charge that either (1) they lacked the authority to answer either of the Texas capital special issues in a manner consistent with their conscience and the evidence regardless of the votes of other jurors or (2) their determination to vote in a manner inconsistent with other jurors would have no legal impact. There is no reasonable likelihood any of petitioner's jurors construed their punishment phase jury instructions in a manner which prevented them from considering or giving effect to any constitutionally relevant mitigating evidence.

Likewise, nothing in petitioner's punishment-phase jury charge mislead petitioner's capital sentencing jury regarding its role as the ultimate arbiter of petitioner's fate. Insofar as petitioner complains that his jury was not specifically instructed that a failure by the jury to answer either of Texas capital sentencing issue (based upon the jury's inability to reach unanimity in favor of answers favorable to the prosecution or to marshal at least ten votes for answers favorable to the defense), that argument is foreclosed by both Supreme Court and Fifth Circuit precedent recognizing there is no constitutional right to jury instructions instructing individual jurors how they can achieve a "hung jury." See Jones v. United States, 527 U.S. 373, 382, 119 S.Ct. 2090, 2099, 144 L.Ed.2d 370 (1999)(the Eighth Amendment does not require a capital sentencing be instructed as the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) 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); Druery v. Thaler, 647 F.3d 535, 544 (5th Cir. 2011)(holding an argument that a Texas capital defendant had a constitutional right to an instruction informing the jury of the impact of a hung jury barred under the non-retroactivity doctrine of Teague v. Lane), cert. denied, ___ U.S. ___, 132 S.Ct. 1550, ___ L.ED.2d ___ (2012); Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir.) (recognizing Fifth Circuit precedent foreclosed arguments the Eighth Amendment and Due Process Clause of the Fourteenth Amendment mandated jury instructions regarding the effect of a capital sentencing jury's failure to reach a unanimous verdict), cert. denied, 551 U.S. 1193 (2007); Barrientes v. Johnson, 221 F.3d 741, 776-78 (5th Cir. 2000)(holding trial court's voir dire instructions informing jury the court would impose sentence, not the jury, but specifically explaining how the jury's answers to the capital sentencing special issues would require the court to impose either a sentence of life or death did not result in a Caldwell violation), cert. denied, 531 U.S. 1134 (2001); Hughes v. Johnson, 191 F.3d 607, 618 (5th Cir. 1999)(holding voir dire explanations to potential jurors of the impact of affirmative answers to the Texas capital sentencing special issues were sufficient to avoid any possibility the jurors misunderstood their role or the effect of their punishment-phase verdict), cert. denied, 528 U.S. 1145 (2000); Alexander v. Johnson, 211 F.3d 895, 897 n.5 (5th Cir. 2000)(holding the same).

This Court has likewise repeatedly rejected the constitutional arguments underlying petitioner's final two claims herein. See Jasper v. Thaler, 765 F.Supp.2d 783, 838-39 (W.D. Tex. 2011)(there is no constitutional right to a jury instruction informing the jurors of the effect of a hung jury or a single hold-out juror), affirmed, ___ Fed. Appx. ___, 2012 WL 1449259 (5th Cir. April 26, 2012); Bartee v. Quarterman, 574 F.Supp.2d at 702-03 (holding there is no constitutional right to have a capital sentencing jury informed of the effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729-30 (W.D. Tex. 2007)(holding there is no constitutional requirement that a capital sentencing jury be informed of the consequences of a hung jury or of a single holdout juror), CoA denied, 534 F.3d 454 (5th Cir. 2008); Blanton v. Quarterman, 489 F.Supp.2d 621, 644-45 (W.D. Tex. 2007)(holding the same), affirmed, 543 F.3d 230 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); Martinez v. Dretke, 426 F.Supp.2d at 534-36 (holding the same).

There is no arguable legal merit to any of the constitutional arguments presented by petitioner in support of his last two claims in this cause. The petitioner's punishment-phase jury charge accurately informed petitioner's capital sentencing jury of their responsibility under Texas law to reach a verdict favorable to the prosecution only if they agreed unanimously on both of the Texas capital sentencing special issue and to return a verdict favorable to the defense on either of those special issue only if ten or more jurors agreed to do so. The Constitution's Eighth and Fourteenth Amendments required nothing more. Insofar as petitioner argues otherwise, his arguments herein amount to advocacy of a "new rule" of federal constitutional criminal procedure and are foreclosed by the Teague non-retroactivity doctrine.

The failure of petitioner's trial counsel to raise what would have been a frivolous objection to the trial court's inclusion of the Texas twelve-ten rule in petitioner's punishment-phase jury charge did not cause the performance of petitioner's trial counsel to fall below an objective level of reasonableness. The failure of petitioner's trial counsel to raise such a meritless objection to the punishment-phase jury charge did not cause the performance of said counsel to fall below an objective level of reasonableness. See Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009)(holding failure to raise a meritless objection does not satisfy the deficient performance prong of Strickland), cert. denied, ___ U.S. ___, 131 S.Ct. 1050, 178 L.Ed.2d 870 (2010); Wood v. Quarterman, 508 F.3d 408, 413 (5th Cir. 2007)(failure to raise futile or meritless objections is not ineffective lawyering), cert. denied, 552 U.S. 1314 (2008); Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002)(holding there was nothing deficient in counsel's failure to object to the admission of psychiatric testimony that was admissible under then-existing precedent), cert. denied, 538 U.S. 926 (2003); Robison v. Johnson, 151 F.3d 256, 261 (5th Cir. 1998)(nothing deficient regarding trial counsel's failure to seek admission of a document the state court concluded was inadmissible), cert. denied, 526 U.S. 1100 (1999); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)(failure to assert a meritless objection cannot be the grounds for a finding of deficient performance), cert. denied, 525 U.S. 969 (1998).

(b) No Prejudice

For similar reasons, the failure of petitioner's trial counsel to raise the constitutional objections to petitioner's punishment-phase jury charge offered by petitioner in his final two claims herein did not "prejudice" petitioner within the meaning of Strickland. Paredes v. Quarterman, 574 F.3d at 291; United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

(2) Failure to Object to Prosecutor's Argument

(a) No Deficient Performance

The prosecutor's closing jury argument at the punishment phase of petitioner's capital murder trial accurately tracked the trial court's jury instructions regarding the Texas twelve-ten rule. The state trial court's punishment-phase jury charge accurately tracked the Texas capital sentencing statute. None of the constitutional arguments raised by petitioner in support of his final claim claims herein possess any arguable merit. As was explained at length in Section VII.E.9.e.(1)(a) above, all of the petitioner's arguments underlying his final two claims herein have all been repeatedly rejected by this Court and the Fifth Circuit or are completely antithetical to well-settled Supreme Court authority. Under such circumstances, the failure of petitioner's trial counsel to raise those same objections to the prosecutor's closing punishment-phase jury argument did not cause the performance of petitioner's trial counsel to fall below an objective level of reasonableness. See Paredes v. Quarterman, 574 F.3d at 291 (holding failure to raise a meritless objection does not satisfy the deficient performance prong of Strickland); Wood v. Quarterman, 508 F.3d at 413 (failure to raise futile or meritless objections is not ineffective lawyering); Johnson v. Cockrell, 306 F.3d at 255 (holding there was nothing deficient in counsel's failure to object to the admission of psychiatric testimony that was admissible under then-existing precedent).

(b) No Prejudice

Because petitioner has identified no arguably meritorious basis for a objection to the prosecutor's closing argument at the punishment phase of petitioner's capital murder trial, the failure of petitioner's trial counsel to raise what would have been a frivolous or meritless objection to such prosecutorial argument did not "prejudice" petitioner within the meaning of Strickland. Paredes v. Quarterman, 574 F.3d at 291; United States v. Kimler, 167 F.3d at 893. F. Conclusions

Petitioner procedurally defaulted on all of the ineffective assistance claims contained in his multifaceted first claim for relief herein by failing to "fairly present" the state habeas court in the course of petitioner's third state habeas corpus proceeding with all of the voluminous new documents supporting those claims which petitioner has furnished to this Court as exhibits to his pleadings herein. See Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004)(holding a petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his state habeas corpus application), cert. denied, 543 U.S. 989 (2004). Petitioner's voluminous new documents radically transform petitioner's multifaceted first claim for relief herein into something very different from the ineffective assistance claims petitioner presented in his third state habeas corpus application, which was dismissed under state writ-abuse principles.

Insofar as petitioner's first group of ineffective assistance claims herein is not rendered unexhausted and procedurally defaulted by virtue of the voluminous new documents petitioner has presented to this Court, all of petitioner's ineffective assistance complaints contained in his first claim herein are procedurally defaulted based upon the Texas Court of Criminal Appeals' summary dismissal of petitioner's third state habeas corpus application under state writ-abuse principles. See, e.g., Hughes v. Quarterman, 530 F.3d at 342 ("This court has held that, since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar."); Aguilar v. Dretke, 428 F.3d at 533 (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling); Matchett v. Dretke, 380 F.3d at 848 (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim).

Petitioner procedurally defaulted on his third claim herein by failing to "fairly present" that same complaint about the performance of his trial counsel to the state habeas court as a federal constitutional claim.

Petitioner procedurally defaulted on the portion of his twelfth claim herein in which he complains about his trial court's failure to object to the twelve-ten rule as incorporated in petitioner's punishment-phase jury charge by wholly failing to "fairly present" this particular complaint to any state court in any state judicial proceeding. Petitioner procedurally defaulted on the remaining portion of his twelfth claim herein by virtue of the Texas Court of Criminal Appeals' dismissal of same on state writ-abuse principles. The Supreme Court's recent holding in Martinez v. Ryan, supra, does not rescue petitioner's procedurally defaulted ineffective assistance claims herein because petitioner has failed to demonstrate any of his underlying ineffective-assistance-of-trial-counsel claims is a substantial one.

This Court has conducted a de novo review of all of petitioner's ineffective assistance claims contained in petitioner's multi-faceted first claim, petitioner's third claim, and petitioner's twelfth claim and concludes none of those ineffective assistance claims satisfy either prong of Strickland analysis.²²³

223 In light of the Supreme Court's directive in Martinez v. Ryan, supra, that the potential merits of an underlying ineffective-assistance-by-trial-counsel claims be examined for purposes of ascertaining whether said claims are "substantial," it is likely ever federal habeas court confronted with even clearly procedurally defaulted ineffective assistance claims will be compelled to undertake at least some examination of the potential merits of all such procedurally defaulted ineffective assistance claims.
The burdens such a procedure impose upon a federal court are substantial, as is evidenced by this case in which petitioner was afforded several years of delay and substantial federal funding to exhaust state remedies on his otherwise unexhausted claims. Instead of doing so, petitioner chose to present the state court with a half-dozen ineffective assistance claims supported a meager number of "unsworn declarations" and, when his ineffective assistance claims here dismissed under state writ-abuse rules, petitioner returned to this Court and presented (1) a host of new documentation in support of his ineffective assistance claims which he had never bothered to present to any state court and which dramatically altered the nature of the ineffective assistance claims he had properly exhausted previously and (2) a host of completely new ineffective assistance claims which he had never presented to any state court. By virtue of the holding in Martinez v. Ryan, supra, this Court was compelled to examine the merits of all of petitioner's ineffective assistance claims, including those which were clearly procedurally defaulted by virtue of petitioner's failure to include same in his third state habeas corpus application.

The Texas Court of Criminal Appeals' rejection on the merits of petitioner's argument that he is entitled to a presumption of prejudice in connection with his ineffective assistance claims herein arising by virtue of an alleged conflict of interest on the part of petitioner's trial counsel was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and state habeas corpus proceedings.

Alternatively, this Court's independent, de novo review leads to the inescapable conclusion that petitioner's assertion he is entitled to a presumption of prejudice pursuant to the Supreme Court's holding in Cuyler lacks any arguable legal merit.

None of the ineffective assistance claims contained in petitioner's first, third, or twelfth claims herein warrant federal habeas corpus relief.

VIII. Challenges to the Texas Capital Sentencing Scheme

A. The Claims

In his ninth, tenth, and eleventh claims herein, petitioner presents several challenges to the Texas capital sentencing scheme. More specifically, petitioner argues in his ninth claim that the Texas capital sentencing statute's definition of mitigating evidence violates the Eighth Amendment insofar as it purports to limit the jury's consideration of mitigating evidence to evidence which reduces the defendant's moral blameworthiness for his capital offense.²²⁴ In his tenth claim herein, petitioner argues the Texas capital sentencing scheme unconstitutionally fails to allocate the burden of proof with regard to the mitigation or Penry special issue.²²⁵ In his eleventh claim herein, petitioner argues the Texas twelve-ten rule violates Eighth and Fourteenth Amendment principles.²²⁶ B. State Court Disposition

224 Amended Petition, at pp. 209-23.

225 Amended Petition, at pp. 223-42.

226 Amended Petition, at pp. 242-53.

In his thirty-fourth point of error on direct appeal, petitioner argued the Texas capital sentencing scheme's statutory definition of "mitigating evidence" was facially unconstitutional because it precluded a capital sentencing jury's consideration of mitigating evidence relevant to the defendant's character, history, or the circumstances of the capital offense that militates in favor of a life sentence.²²⁷

227 Appellant's Brief, at pp. 117-18.

In his thirtieth point of error on direct appeal, petitioner argued the Texas capital sentencing scheme was unconstitutional because it failed to allocate the burden of proof concerning the Penry or mitigation special issue.²²⁸

228 Appellant's Brief, at p. 109.

In his thirty-first point of error on direct appeal, petitioner challenged the constitutionality of the Texas twelve-ten rule under a variety of federal constitutional theories, including the Supreme court's opinions in Mills v. Maryland, supra, and McKoy v. North Carolina, supra, but, curiously, not Romano v. Oklahoma, supra.²²⁹

229 Appellant's Brief, at pp. 110-13.

The Texas Court of Criminal Appeals summarily denied relief on the merits of all these claims. Sells v. State, 121 S.W.3d at 767-68. C. Narrow Statutory Definition of "Mitigating Evidence"

1. The Punishment Phase Jury Instruction

In pertinent part, the state trial court instructed petitioner's jury at the punishment phase of trial as follows:

In determining your answers to the questions, or Special Issues, submitted to you, you shall consider all the evidence submitted to you in this whole trial, which included that phase of the trial wherein you were called upon to determine the guilt or innocence of the defendant, and the punishment phase of trial wherein you are now called upon to determine the answers to Special Issues submitted to you by the Court.²³⁰

You shall consider all evidence submitted to you during the whole trial as to defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.²³¹

230 Trial Transcript, at p. 270.

231 Trial Transcript, at p. 271.

The trial court also instructed petitioner's jury in accordance with applicable Texas law that, as used in the second special issue, the term "mitigating evidence" meant "evidence that a juror might regard as reducing the defendant's moral blameworthiness."²³²

232 Trial Transcript, at p. 273.

2. Clearly Established Federal Law

As was explained above, the Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as "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." Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 262-63, 127 S.Ct. 1654, 1674, 167 L.Ed.2d 585 (2007)(holding proper test is whether there is a reasonable likelihood the jury applied the challenged instruction in a way that prevented its consideration of constitutionally relevant evidence); Ayers v. Belmontes, 549 U.S. 7, 13, 127 S.Ct. 469, 473-74, 166 L.Ed.2d 334 (2006)(holding the same); Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000)(emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n.9, 119 S.Ct. 2090, 2102-03 & n.9, 144 L.Ed.2d 370 (1999)(holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998)(holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998)(holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993)(holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence).

The Supreme Court has clearly established the principle that "sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future." Abdul-Kabir v. Quarterman, 550 U.S. at 246, 127 S.Ct. at 1664.

This "reasonable likelihood" standard does not require the petitioner to prove the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198.

This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). "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 the trial.'" Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198.

3. Procedural Default on Unexhausted "As Applied" Claim

Insofar as petitioner attempts to assert an "as applied" challenge to the Texas statutory definition of mitigating evidence, his ninth claim herein is unexhausted and procedurally defaulted. Petitioner did not assert an "as applied" challenge to the Texas statutory definition of mitigating evidence, either on direct appeal or in any of his multiple state habeas corpus proceedings. Rather, petitioner's thirty-fourth point of error on direct appeal "fairly presented" a facial challenge to the Texas capital sentencing statue's definition of mitigating evidence.²³³ To the extent petitioner now attempts to assert an "as applied" challenge to that statutory definition, his ninth claim herein is unexhausted and procedurally defaulted. See Hughes v. Dretke, 412 F.3d at 594-95 (holding petitioner procedurally defaulted on a jury misconduct claim by presenting the state courts with purely state-law arguments supporting same and waiting until he reached federal court to first urge federal constitutional arguments); Beazley v. Johnson, 242 F.3d at 264-68 (holding petitioner procedurally defaulted on a claim by failing to present same to the Texas Court of Criminal Appeals either on direct appeal or in a state habeas corpus application where claim was readily available at the time petitioner filed his state habeas application).

233 Appellant's brief, at pp. 117-18.

4. AEDPA Review of Facial Challenge

Insofar as petitioner asserts a facial challenge to the constitutionality of the Texas capital sentencing scheme's statutory definition of mitigating evidence, this claim is Teague-barred because no federal court has ever held the Texas statute's definition of "mitigating evidence" precludes a capital sentencing jury's consideration of any identifiable mitigating evidence. Bartee v. Quarterman, 574 F.Supp.2d at 708.

Moreover, insofar as petitioner argues (as he did on direct appeal) that the Texas statutory definition of mitigating evidence is facially unconstitutional, petitioner's ninth claim herein is foreclosed by well-settled Fifth Circuit authority, as well as numerous published opinions of this Court. See, e.g., Blue v. Thaler, 665 F.3d at 666-68 (rejecting the suggestion, urged by petitioner herein, that the fact some Texas trial court have begun to supplement the statutory definition of "mitigating evidence" shows some constitutional infirmity exists in the Texas capital sentencing scheme); Scheanette v. Quarterman, 482 F.3d at 825-26 (rejecting virtually the same arguments attacking the Texas capital sentencing scheme's definition of "mitigating evidence" raised by petitioner herein); Beazley v. Johnson, 242 F.3d at 260 (holding the same Texas statutory definition of "mitigating evidence" challenged by petitioner herein did not unconstitutionally preclude jury consideration of the mitigating aspects of any evidence of the defendant's character or background or the circumstances of the offense which the defendant presented at trial); Jasper v. Thaler, 765 F.Supp.2d at 830-33 (rejecting the same challenge to the Texas statutory definition of mitigating evidence raised by petitioner herein); Bartee v. Quarterman, 574 F.Supp.2d at 707-11 (rejecting the same constitutional challenge to the Texas capital sentencing statute's definition of "mitigating evidence" raised by petitioner herein); Cordova v. Johnson, 993 F.Supp. 473, 489-98 (W.D. Tex. 1998)(discussing the Supreme Court's analysis of mitigating evidence), appeal denied, 157 F.3d 380 (5th Cir. 1998), cert. denied 525 U.S. 1131 (1999).

There is no clearly established federal law in the form of Supreme Court precedent mandating a definition of "mitigating evidence" broader than the one set forth in the Texas statute. On the contrary, the Supreme Court has twice approved the following state court definition: "Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." Tennard v. Dretke, 542 U.S. 274, 284, 124 S.Ct. 2562, 2570, 159 L.Ed.2d 384 (2004); McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990).

The state trial court instructed petitioner's capital sentencing jury to consider all of the evidence before it which related to the petitioner's character or background or the circumstances of the offense and which tended to mitigate against the imposition of the death penalty. This instruction, when read in conjunction with the statutory definition of mitigating evidence, did not deprive petitioner of the constitutional right to have the jury consider any evidence which might mitigate in favor of a life sentence.

5. De Novo Review of "As Applied" Challenge

Alternatively, insofar as petitioner seeks to urge his "as applied" challenge to the Texas capital sentencing statute's definition of mitigating evidence, petitioner's arguments in support of his ninth claim herein misconstrue the appropriate constitutional standard for evaluating the propriety of jury instructions at the punishment phase of a capital trial. The Supreme Court identified the proper inquiry as whether there is a reasonable likelihood the jury applied the challenged instructions in a way that prevented the consideration of constitutionally relevant evidence. Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. The federal constitutional issue properly before this Court in connection with petitioner's challenge to the statutory definition of "mitigating evidence" contained in Texas Code of Criminal Procedure Article 37.071, §2(f)(4) is not whether the statutory language in question satisfies some abstract definition of the term "mitigating evidence" but, rather, whether the jury instructions actually given during the punishment phase of petitioner's trial could reasonably be construed as precluding the jury from giving mitigating effect to any of the evidence properly before the jury at the punishment phase of petitioner's capital trial. Id.

Petitioner has identified no potentially mitigating evidence actually presented to the jury during petitioner's trial which was outside the effective reach of one or both of the Special Issues addressed by the jury at the punishment phase of petitioner's capital murder trial.

Petitioner's trial counsel presented evidence through the testimony of Dr. Dickerson and the Val Verde County jail administrator at the punishment phase of petitioner's capital murder trial which, when viewed in the light most favorable to petitioner, established (1) petitioner has a long history of alcohol and drug abuse, (2) petitioner was quite possibly sexually abused while a child and teen, (3) petitioner suffers from a recognized mental illness, (4) medications are available to help furnish treatment for petitioner's mental illness, (5) petitioner's tendency toward aggressive behavior was satisfactorily controlled during prior incarcerations in West Virginia and Wyoming, (6) petitioner earned a GED while incarcerated in West Virginia, (7) once properly medicated and placed in an institutionalized setting, such as a prison, petitioner would likely pose a much reduced risk of future dangerousness than he would if left on the street with easy access to alcohol and weapons, (8) petitioner behaved in a generally satisfactory manner during his pretrial detention, (9) petitioner's prior criminal record consisted primarily of crimes against property, and (10) petitioner's brain scan indicated he suffers from diffuse brain abnormalities.

The Supreme Court has expressly held 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. More specifically, the Supreme Court held in Tuilaepa v. California at the selection stage, the States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as "the circumstances of the crime," "the defendant's prior criminal record," and "all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment." Tuilaepa v. California, 512 U.S. 867, 978, 114 S.Ct. 2630, 2638, 129 L.Ed.2d 750 (1994). The Supreme Court has made it clear 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. See Johnson v. Texas, 509 U.S. at 62, 113 S.Ct. at 2666 (holding (1) there is no constitutional requirement of unfettered sentencing discretion in the jury and (2) States are free to "structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty."); Boyde v. California, 494 U.S. at 377, 110 S.Ct. at 1196 (holding the same). The Texas capital sentencing scheme's definition of "mitigating evidence" is a wholly proper method of guiding the discretion exercised by a capital sentencing jury. Bartee v. Quarterman, 574 F.Supp.2d at 711; Martinez v. Dretke, 426 F.Supp.2d at 538-41.

Petitioner's evidence showing petitioner (1) had been a model inmate at the Val Verde County Detention Center during his pretrial detention, (2) had previously served relatively non-violent terms of imprisonment in other states, during one of which he earned a GED, (3) had been controlled by available medications during a prior term of incarceration, (4) had a history of mostly crimes against property (such as auto theft), and (5) would not likely pose a threat of future violence if properly medicated and supervised by prison officials, could all have been adequately considered by petitioner's jury in answering the future dangerousness special issue. This evidence is indistinguishable from the type of "good character" evidence which can be given adequate consideration in connection with the future dangerousness special issue. See Scheanette v. Quarterman, 482 F.3d at 826 n.64 (furnishing a lengthy list of Supreme Court and Fifth Circuit opinions recognizing evidence of good character can be assessed adequately within the context of the future dangerousness special issue); Cordova v. Johnson, 993 F.Supp. at 496-98 & n.122 (furnishing an even longer list of Fifth Circuit opinions holding evidence of good character can be adequately considered under the future dangerousness special issue). If, in fact, the jury determined petitioner could be properly medicated and supervised in prison and would likely continue to be a "model prisoner" during a term of life imprisonment, the jury could have answered the future dangerousness special issue negatively.

Petitioner's evidence that he suffered from a history of alcohol and drug abuse, had been sexually abused as a child, had brain damage, and suffered from a mental illness, could all have been considered by petitioner's jury in answering the mitigation special issue. See Beazley v. Johnson, 242 F.3d at 260 ("[V]irtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's 'moral culpability' apart from its relevance to the particular concerns embodied in the Texas special issues.")(quoting Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 902, 122 L.Ed.2d 250 (1993)). The reality that such evidence was double-edged in nature did not violate petitioner's federal constitutional rights. Neither the Supreme Court nor any other federal court has ever held that a capital defendant possesses a constitutional right to limit a capital sentencing jury's consideration of double-edged evidence to only the mitigating aspect of such evidence. Insofar as petitioner's arguments underlying his ninth claim herein suggest the contrary, petitioner's ninth claim herein is Teague-barred.

This Court concludes there is no reasonable likelihood petitioner's capital sentencing jury considered itself precluded by petitioner's punishment-phase jury instructions from giving mitigating effect to any of petitioner's proffered mitigating evidence.

5. Conclusions

Insofar as petitioner attempts to assert an "as applied" challenge to the Texas capital sentencing scheme's statutory definition of mitigating evidence, petitioner's ninth claim herein is unexhausted and procedurally defaulted; it is also Teague-barred and foreclosed by well-settled Supreme Court and Fifth Circuit precedent.

Alternatively, petitioner's "as applied" challenge to the Texas capital sentencing scheme's statutory definition of mitigating evidence fails to satisfy the Boyde standard and lacks any arguable merit. All of the potentially mitigating evidence which petitioner actually presented to his capital sentencing jury could have been adequately considered by that jury in the course of answering the Texas capital sentencing special issues.

Insofar as petitioner seeks to re-urge herein the same facial constitutional challenge to the Texas capital sentencing scheme's statutory definition of mitigating evidence which petitioner raised in his thirty-fourth point of error on direct appeal, the Texas Court of Criminal Appeals' rejection on the merits of that claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial or direct appeal proceedings.

Petitioner's ninth claim herein does not warrant federal habeas corpus relief. D. Absence of a Burden of Proof on Mitigation Special Issue

1. Punishment Phase Jury Instructions

The state trial court instructed petitioner's capital sentencing jury, without objection by petitioner's trial counsel, to answer the following special issue if it first determined beyond a reasonable that there was a probability the petitioner would commit criminal acts of violence constituting a continuing threat to society:

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, do you find that there is a sufficient mitigating circumstances or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?²³⁴

234 Trial Transcript, at p. 273.

2. Clearly Established Federal Law

True consensus on an overarching analytical approach to Eighth Amendment claims did not appear within the United States Supreme Court until eight Supreme Court Justices agreed in Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), on the principle that the Eighth Amendment addresses two different but related aspects of capital sentencing: the eligibility decision and the selection decision. Tuilaepa, 512 U.S. at 971, 114 S.Ct. at 2634 (Justice Kennedy writing for himself, Chief Justice Rehnquist, and Justices O'Connor, Scalia, Souter, and Thomas, with Justices Stevens and Ginsburg concurring separately but not rejecting the analytical approach offered by Justice Kennedy). The Supreme Court's analysis of those two aspects of capital sentencing provided the first comprehensive system for analyzing Eighth Amendment claims a clear majority of the Supreme Court had ever offered:

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, we have indicated that 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). As we have explained, the 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.

* * *
We have imposed 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.

Tuilaepa, 512 U.S. at 971-73, 114 S.Ct. at 2634-35 (citations omitted).

In Tuilaepa, the Supreme Court clearly declared its view that States may adopt capital sentencing procedures which rely upon the jury, in its sound judgment, to exercise wide discretion. Tuilaepa, 512 U.S. at 974, 114 S.Ct. at 2636. The Supreme Court also concluded, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as "the circumstances of the crime," "the defendant's prior criminal record" and "all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment." Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638.

In Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996), the Supreme Court described the first part of the Tuilaepa analysis, i.e., the eligibility decision, as follows:

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."

Loving, 517 U.S. at 755, 116 S.Ct. at 1742 (citations omitted).

The Supreme Court subsequently elaborated on the distinction between the narrowing function or "eligibility decision" and the "selection phase" of a capital sentencing proceeding in Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998):

Petitioner initially recognizes, as he must, that our cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994). In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. Ibid. In the selection phase, the jury determines whether to impose a death sentence on an eligible defendant. Id., at 972, 114 S.Ct., at 2634-2635. Petitioner concedes that it is only the selection phase that is at stake in his case. He argues, however, that our decisions indicate that the jury at the selection phase must both have discretion to make an individualized determination and have that discretion limited and channeled. See, e.g., Gregg v. Georgia, 428 U.S. 153, 206-207, 96 S.Ct. 2909, 2940-2941, 49 L.Ed.2d 859 (1976). He further argues that the Eighth Amendment therefore requires the court to instruct the jury on its obligation and authority to consider mitigating evidence, and on particular mitigating factors deemed relevant by the State.
No such rule has ever been adopted by this Court. While petitioner appropriately recognizes the distinction between the eligibility and selection phases, he fails to distinguish the differing constitutional treatment we have accorded those two aspects of capital sentencing. It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury's discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious

in its imposition. In contrast, in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination. Tuilaepa, supra, at 971-973, 114 S.Ct., at 2634-2636; Romano v. Oklahoma, 512 U.S. 1, 6-7, 114 S.Ct, 2004, 2008-2009, 129 L.Ed.2d 1 (1994); McCleskey v. Kemp, 481 U.S. 279, 304-306, 107 S.Ct. 1756, 1773-1775, 95 L.Ed.2d 262 (1987); Stephens, supra, at 878-879, 103 S.Ct., at 2743-2744.
In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 317-318, 109 S.Ct. 2934, 2946-2947, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978). However, the state may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993); Penry, supra, at 326, 109 S.Ct., at 2951; Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988). Our consistent concern has been that restrictions on the jury's sentencing determination not preclude the jury from being able to give effect to mitigating evidence. Thus, in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), we held that the standard for determining whether jury instructions satisfy these principles was "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." Id., at 380, 110 S.Ct., at 1198; see also Johnson, supra, at 367-368, 113 S.Ct., at 2669.
But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence. And indeed, our decisions suggest that complete jury discretion is constitutionally permissible. See Tuilaepa, supra, at 978-979, 114 S.Ct., at 2638-2639 (noting that at the selection phase, the state is not confined to submitting specific propositional questions to the jury and may

indeed allow the jury unbridled discretion); Stephens, supra, at 875, 103 S.Ct., at 2741-2742 (rejecting the argument that a scheme permitting the jury to exercise "unbridled discretion" in determining whether to impose the death penalty after it has found the defendant eligible is unconstitutional, and noting that accepting that argument would require the Court to overrule Gregg, supra).

Buchanan v. Angelone, 522 U.S. at 275-277, 118 S.Ct. at 761-62.

3. AEDPA Analysis

Relying upon the Supreme Court's holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and proclaiming "the importance of the assignment of a burden of proof is so elemental that citation to authority is not necessary,"²³⁵ petitioner argues the Texas capital sentencing scheme's failure to assign a burden of proof to the mitigation special issue quoted above renders his death sentence unconstitutional. A quick review of pertinent Supreme Court opinions will help demonstrate the lack of arguable merit underlying petitioner's tenth claim herein.

235 Amended Petition, at p. 232.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court struck down on due process grounds a state scheme that permitted a trial judge to make a factual finding based on a preponderance of the evidence regarding the defendant's motive or intent underlying a criminal offense and, based on such a finding, increase the maximum end of the applicable sentencing range for the offense by a factor of one hundred percent. Apprendi, 530 U.S. at 497, 120 S.Ct. at 2366. The Supreme Court's opinion in Apprendi emphasized it was merely extending to the state courts the same principles discussed in Justice Stevens' and Justice Scalia's concurring opinions in Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 1228-29, 143 L.Ed.2d 311 (1999): other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Put more simply, the Supreme Court held in Apprendi (1) it was unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal is exposed and (2) all such findings must be established beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363.

Two years later, in Ring v. Arizona, supra, the Supreme Court applied the holding and its reasoning in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to strike down a death sentence in a case in which the jury had declined to find the defendant guilty of pre-meditated murder during the guilt-innocence phase of a capital trial (instead finding the defendant guilty only of felony murder) but a trial judge subsequently concluded the defendant should be sentenced to death based upon factual determinations that (1) the offense was committed in expectation of receiving something of pecuniary value (i.e., the fatal shooting of an armored van guard during a robbery) and (2) the foregoing aggravating factor out-weighed the lone mitigating factor favoring a life sentence (i.e., the defendant's minimal criminal record).²³⁶ Ring v. Arizona, 536 U.S. at 609, 122 S.Ct. at 2443. The Supreme Court emphasized, as it had in Apprendi, the dispositive question "is not one of form, but of effect": [i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt." Ring, 536 U.S. at 602, 122 S.Ct. at 2439. "A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Ring, 536 U.S. at 602, 122 S.Ct. at 2439-40, quoting Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359. Because Ring would not have been subject to the death penalty but for the trial judge's factual determination as to the existence of an aggravating factor, the Supreme Court declared Ring's death sentence violated the right to trial by jury protected by the Sixth Amendment. Ring v. Arizona, 536 U.S. at 609, 122 S.Ct. at 2443.

236 In point of fact, the Arizona trial judge found a second aggravating factor applied in Ring's case, i.e., Ring's comments after the fatal shooting in which he chastised his co-conspirators for their failure to praise Ring's marksmanship rendered his offense "especially heinous, cruel, or depraved." The Arizona Supreme Court later held there was insufficient evidence to support the trial judge's finding of depravity but nonetheless re-weighed the remaining aggravating factor against the lone mitigating factor and affirmed Ring's death sentence. Ring v. Arizona, 536 U.S. at 595-96, 122 S.Ct. at 2435-36.

The essential elements of the offense of capital murder, as defined by Texas law, are set forth in Sections 19.02(b) and 19.03 of the Texas Penal Code.²³⁷ Capital murder, as so defined by Texas law, is punishable by a sentence of either life imprisonment or death.²³⁸ Applicable Texas law does not include any of the sentencing factors included in the Texas capital sentencing special issues set forth in Article 37.071 of the Texas Code of Criminal Procedure as "essential elements" of the offense of capital murder: "In Texas, the statutory maximum for a capital offense is death. The mitigation issue does not increase the statutory minimum. To the contrary, the mitigation issue is designed to allow for the imposition of a life sentence, which is less than the statutory maximum." Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 823 (2004). The nature of petitioner's capital sentencing proceeding was vastly different from the Arizona capital sentencing proceedings the Supreme Court addressed in Ring.

237 Tex. Pen. Code Ann. §19.02(b) (Vernon 2003); Tex. Pen. Code Ann. §19.03 (Vernon Supp. 2010).

238 Tex. Pen. Code Ann. §12.31(a) (Vernon Supp. 2010),

Petitioner's capital sentencing jury did make a factual determination at the punishment phase of petitioner's trial beyond a reasonable doubt; more specifically, finding a probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society.²³⁹ Petitioner's jury also determined, after taking into consideration all the evidence, including the circumstances of the offense, petitioner's character and background, and petitioner's personal moral culpability, there was insufficient mitigating circumstance to warrant a life sentence.²⁴⁰ Thus, the capital sentence imposed upon petitioner pursuant to Texas law was based on jury findings, unlike the judicially-imposed capital sentences struck down in Apprendi and Ring.

239 Trial Transcript, at p. 272.

240 Trial Transcript, at p. 273.

Moreover, the Arizona capital sentencing scheme the Supreme Court addressed in Ring relied upon a trial judge's factual findings of "aggravating" factors and directed the trial judge to weigh those aggravating factors against any mitigating factors found to apply to the defendant. Thus the Arizona trial judge's factual findings in Ring were part of the constitutionally-mandated eligibility determination, i.e., the narrowing function. In contrast, the Texas capital sentencing scheme under which petitioner was tried, convicted, and sentenced performed the constitutionally-required narrowing function discussed in Tuilaepa and Loving at the guilt-innocence phase of petitioner's trial and further narrowed the category of those eligible for the death penalty by requiring a jury finding, beyond a reasonable doubt, of future dangerousness. See Sonnier v. Quarterman, 476 F.3d 349, 365-67 (5th Cir. 2007)(recognizing the Texas capital sentencing scheme, like the one upheld by the Supreme Court in Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), performs the constitutionally-required narrowing function through its statutory definition of capital murder and further narrows the category of those eligible for the death penalty by requiring an additional fact finding, beyond a reasonable doubt, that there is a probability the defendant will commit criminal acts of violence that would constitute a continuing threat to society), cert. denied, 552 U.S. 948 (2007).

Unlike Arizona's weighing scheme, the Texas capital sentencing scheme performs the constitutionally-mandated narrowing function, i.e., the process of making the "eligibility decision," at the guilt-innocence phase of a capital, trial by virtue of the manner with which Texas defines the offense of capital murder in Section 19.03 of the Texas Penal Code. See Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993)(holding its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted different classifications of murder for that purpose); Lowenfield v. Phelps, 484 U.S. 231, 243-47, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988)(comparing the Louisiana and Texas capital murder schemes and noting they each narrow those eligible for the death penalty through narrow statutory definitions of capital murder); Jurek v. Texas, 428 U.S. 262, 268-75, 96 S.Ct. 2950, 2955-57, 49 L.Ed.2d 929 (1976)(plurality opinion recognizing the Texas capital sentencing scheme narrows the category of murders for which a death sentence may be imposed and this serves the same purpose as the requirements of other statutory schemes which require proof of aggravating circumstances to justify the imposition of the death penalty).

The Texas capital sentencing scheme under which petitioner was convicted and sentenced involved a significantly different approach to capital sentencing than the Arizona scheme involved in Ring. By virtue of (1) its guilt-innocence phase determination beyond a reasonable doubt that the petitioner committed capital murder, as defined by applicable Texas law, and (2) its factual finding of future dangerousness, also made beyond a reasonable doubt, petitioner's jury found beyond a reasonable doubt the petitioner was eligible to receive the death penalty. Sonnier v. Quarterman, 476 F.3d at 365-67. In contrast, Ring's jury made no analogous factual findings. Instead, Ring's Arizona jury found beyond a reasonable doubt only that Ring was guilty of "felony murder," a wholly separate offense from the offense of capital murder as defined under Texas law.

The petitioner's first capital sentencing special issue, i.e., the future dangerousness issue, included a "beyond a reasonable doubt" burden of proof squarely placed on the prosecution. Petitioner's jury made that determination. Thus, no violation of the principles set forth in Ring occurred during petitioner's trial. Insofar as petitioner argues his jury's factual finding on the future dangerousness special issue was an essential part of the procedural process under Texas law for determining whether the petitioner was eligible to receive the death penalty, that argument is foreclosed by the Supreme Court's express recognition the Texas capital sentencing scheme accomplishes the eligibility determination, i.e. the constitutionally mandated "narrowing function," at the guilt-innocence phase of trial. Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666; Jurek v. Texas, 428 U.S. at 270-71, 96 S.Ct. at 2956.

In contrast, the Penry or "mitigation" special issue employed at the punishment phase of petitioner's capital trial was designed to address the second aspect of capital sentencing discussed in Tuilaepa, i.e., the constitutional requirement that the jury be given an opportunity "to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." Kansas v. Marsh, 549 U.S. at 174, 126 S.Ct. at 2524-25; Sonnier v. Quarterman, 476 F.3d at 365; Garcia v. Thaler, 2009 WL 4931069, *14 (W.D. Tex. December 14, 2009), CoA denied, 389 Fed. Appx. 396, 2010 WL 31195119 (5th Cir. August 9, 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1604, 179 L.Ed.2d 505 (2011). "The use of mitigation evidence is a product of the requirement of individualized sentencing." Kansas v. Marsh, 549 U.S. at 174, 126 S.Ct. at 2525.

The Supreme Court has distinguished the constitutional requirements of the eligibility decision, i.e., the narrowing function, and the selection decision, i.e., the individualized assessment of mitigating circumstances, holding the latter requires only that the sentencing jury be given broad range to consider all relevant mitigating evidence but leaving to the States wide discretion on how to channel the sentencing jury's balancing of mitigating and aggravating factors. See Kansas v. Marsh, 549 U.S. at 174-75, 126 S.Ct. at 2525 (holding, in connection with the selection phase of a capital sentencing proceeding, the Constitution mandates only that (1) the defendant has a right to present the sentencing authority with information relevant to the sentencing decision and (2) the sentencing authority is obligated to consider that information in determining the appropriate sentence); Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638 (holding, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as "the circumstances of the crime," "the defendant's prior criminal record" and "all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment.").

At the selection phase of a capital trial, the Supreme Court has left to the States the decision whether to channel a sentencing jury's weighing of mitigating evidence or grant the jury unfettered discretion to consider all relevant mitigating evidence and weigh same in any manner the jury deems reasonable. See Kansas v. Marsh, 549 U.S. at 174, 126 S.Ct. at 2525 ("So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed."). Likewise, the Supreme Court has not yet imposed a particular burden of proof requirement with regard to a capital sentencing jury's consideration of mitigating evidence when such consideration occurs exclusively within the selection process.

"[D]iscretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he

committed" is not impermissible in the capital sentencing process. "Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty,...the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment." Indeed, the sentencer may be given "unbridled discretion in determining whether the death penalty should be imposed after it has been found that the defendant is a member of the class made eligible for that penalty."

Tuilaepa, 512 U.S. at 979, 114 S.Ct. at 2639 (citations omitted).

"[T]here is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty.'" Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666 (quoting Boyde v. California, 494 U.S. at 377, 110 S.Ct. at 1196). "We have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." Kansas v. Marsh, 549 U.S. at 175, 126 S.Ct. at 2525 (quoting Franklin v. Lynaugh, 487 U.S. at 179, 108 S.Ct. at 2330).

As explained above, the "eligibility" decision required by the Eighth Amendment is satisfied under Texas law by the jury's findings "beyond a reasonable doubt" that (1) the defendant is guilty of capital murder as defined under Section 19.03 of the Texas Penal Code and (2) there is a probability the defendant will commit criminal acts of violence that would constitute a continuing threat to society. Sonnier v. Quarterman, 476 F.3d at 365-67. This is all the Constitution requires to satisfy the concerns discussed by the Supreme Court in Ring.

Consistent with the Supreme Court's holdings in Kansas v. Marsh, Tuilaepa v. California, and Johnson v. Texas, a Texas capital sentencing jury may be granted "unfettered discretion" regarding how it should weigh the mitigating evidence, if any, relevant to a particular defendant's background and character against the aggravating circumstances of the defendant's offense and the defendant's demonstrated propensity for future dangerousness. Thus, the Texas Legislature's decision not to assign a particular burden of proof on either party in connection with the Texas capital sentencing scheme's Penry or mitigation special issue falls well within the broad range of discretionary authority a State may exercise in connection with the selection phase of a capital trial.²⁴¹

241 It can be argued the absence of a burden of proof standard in the Penry or mitigation special issue could be reasonably expected to enure to the benefit of defendants because a shrewd defense counsel could argue the absence of an instruction mandating a particular burden of proof on this special issue permits the jury to answer the Penry special issue affirmatively if the jury concludes there is only a scintilla of evidence supporting an affirmative finding on that special issue.

The Arizona trial judge's affirmative factual finding regarding the existence of an aggravating factor made in Ring did not serve the same constitutionally-mandated purpose as the jury's negative answer to the Penry special issue made at petitioner's Texas capital murder trial. The Arizona trial judge's factual findings were designed to satisfy the "eligibility" requirement discussed in Tuilaepa. In jurisdictions such as Texas (where the "eligibility" decision discussed in Tuilaepa is made at the guilt-innocence phase of a capital trial) the factual issues before the jury at the punishment phase of a capital trial address the "selection" decision identified by the Supreme Court in Tuilaepa. Furthermore, even if Texas' future dangerousness special issue could be construed as falling within the scope of the constitutionally-mandated eligibility decision, Texas law clearly places the burden of proving same beyond a reasonable doubt on the prosecution and mandates jury determination of that special issue.

Thus, the procedural requirements applicable to the eligibility decision in weighing jurisdictions such as Arizona (where specific findings of aggravating factors are made during a separate post-conviction proceeding and then weighed against any "mitigating" factors also found by the sentencing authority) are inapplicable to a Texas capital sentencing jury's selection decision, i.e., its determination as to whether the mitigating evidence in a particular case warrants a sentence of less than death for a criminal defendant who has already been convicted beyond a reasonable doubt of capital murder and already determined beyond a reasonable doubt to pose a risk of future dangerousness. See Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007)("a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death."); Sonnier v. Quarterman, 476 F.3d at 363-67 (holding the deletion of the former special issue inquiring into whether the defendant acted "deliberately" in connection with the capital murder from the Texas capital sentencing scheme did not render same vulnerable to attack on Eighth Amendment grounds); Granados v. Quarterman, 455 F.3d 529, 537 (5th Cir. 2006)(distinguishing Ring and Apprendi on the ground a jury's affirmative answer to the Texas capital sentencing scheme's Penry or "mitigation" special issue reduces a sentence from death rather than increasing it to death, as was the case with the factual findings made by the trial judges in Apprendi and Ring), cert. denied, 549 U.S. 1081 (2006); Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir. 2005)("No Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof."), cert. denied, 546 U.S. 848 (2005).

The Fifth Circuit has repeatedly held, as has this Court, that the Constitution does not mandate a burden of proof be imposed on the Texas capital sentencing scheme's mitigation special issue. See, e.g., Blue v. Thaler, 665 F.3d at 668-69 ("a finding of mitigating circumstances reduce a sentence from death, rather than increasing it to death."); Druery v. Thaler, 647 F.3d at 546-47 (holding no Supreme Court or Circuit precedent constitutionally requires that Texas' mitigation special issue be assigned a burden of proof); Ortiz v. Quarterman, 504 F.3d 492, 504-05 (5th Cir. 2007)(the Texas death penalty scheme does not violate Apprendi or Ring by failing to require the State to prove beyond a reasonable doubt the absence of mitigating circumstances), cert. denied, 553 U.S. 1035 (2008); Scheanette v. Quarterman, 482 F.3d at 828 (Texas death penalty scheme did not violate either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances); Jasper v. Thaler, 765 F.Supp.2d at 841-42 (recognizing no legal authority exists for mandating a burden of proof be assigned on the Texas mitigating evidence special issue); Bartee v. Quarterman, 574 F.Supp.2d 698-99 (holding Ring does not mandate a burden of proof be imposed on the Texas capital sentencing scheme's mitigation special issue); Moore v. Quarterman, 526 F.Supp.2d at 737 (holding the same).

4. Conclusions

Neither the Supreme Court's opinion in Ring nor any of the other authorities cited by petitioner in support of his tenth claim herein establish the existence of "clearly established" federal law recognizing a constitutional requirement for a burden of proof on the Texas capital sentencing scheme's mitigation special issue. Unlike the capital sentencing schemes addressed by the Supreme Court in its Apprendi and Ring line of cases, the Texas capital sentencing scheme accomplishes the constitutionally mandated "narrowing" function, i.e., the eligibility determination, at the guilt-innocence phase of trial through jury determinations of relevant facts. The Texas capital sentencing scheme operates in a very different manner from those sentencing schemes which the Supreme Court concluded in its Apprendi and Ring line of cases violated the Sixth Amendment right to jury trial.

The Texas Court of Criminal Appeals' rejection on the merits in the course of petitioner's direct appeal of petitioner's complaint about the lack of a burden of proof in the Texas capital sentencing scheme's mitigation special issue was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial or direct appeal proceedings.

Petitioner's tenth claim herein does not warrant federal habeas corpus relief. E. Challenge to the Texas Twelve-Ten Rule

1. Punishment Phase Jury Instructions

The pertinent portions of the petitioner's punishment-phase jury instructions are found in Section VII.E.9.b. above.²⁴²

242 See notes 214-20, supra, and accompanying text. --------

2. Clearly Established Federal Law

The relevant legal authorities addressing the constitutional principles applicable to petitioner's eleventh claim herein are set forth in Section VII.E.9.e.(1)(a) above.

3. AEDPA Analysis

For the reasons set forth at length in Section. VII.E.9.e.(1)(a) above, there is no arguable merit to any of petitioner's challenges to the constitutionality of the Texas twelve-ten rule. See Blue v. Thaler, 665 F.3d at 669-70 (rejecting the same Romano v. Oklahoma argument raised by petitioner herein as authority for the proposition that the Texas twelve-ten rule misleads jurors); Alexander v. Johnson, 211 F.3d at 897 (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas twelve-ten rule in the course of affirming this Court's rejection of claims virtually identical to those raised by petitioner herein); Miller v. Johnson, 200 F. 3d at 288-89 (holding Mills inapplicable to a Texas capital sentencing proceeding); Woods v. Johnson, 75 F.3d at 1036 (holding the same); Hughes v. Johnson, 191 F.3d at 628-29 (holding both Mills and McKoy inapplicable to the Texas capital sentencing scheme); Jacobs v. Scott, 31 F.3d at 1328-29 ("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."); Bartee v. Quarterman, 574 F.Supp.2d at 700-01 (rejecting reliance upon Mills and McKoy as bases for challenging the Texas capital sentencing scheme).

4. Conclusions

The Texas Court of Criminal Appeals' rejection, on the merits on direct appeal of petitioner's complaints about the Texas capital sentencing scheme's twelve-ten rule was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial and direct appeal proceedings.

IX. Certificate of Appealability

The AEDPA converted the "certificate of probable cause" previously required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a "Certificate of Appealability" ("CoA"). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997)(recognizing the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997)(holding the standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n.2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998). Effective December 1, 2009, Rule 11(a) of the Rules Governing Section 2254 Cases in United States District Courts requires this Court to issue or deny a CoA when it enters an order adverse to a federal habeas corpus petitioner.

Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Johnson, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. §2253(c)(2). Likewise, under the AEDPA, 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)(holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n.2 (5th Cir. 2000)(holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)(holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n.10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n.1 (5th Cir. 1997); 28 U.S.C. §2253(c)(3).

A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Johnson, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).

To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Johnson, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n.4, 103 S.Ct. at 3394 n.4. This Court is required to issue or deny a CoA when it enters a final Order such as this one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.

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 this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. "[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Johnson, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this 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 jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).

In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor. Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 536, 175 L.Ed.2d 350 (2009); Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008); Foster v. Quarterman, 466 F.3d at 364; Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir. 2006); Pippin v. Dretke, 434 F.3d at 787; Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir. 2005), cert. denied, 548 U.S. 909 (2006).

Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See Miller-El v. Cockrell 537 U.S. at 337, 123 S.Ct. at 1040 ("It follows that issuance of a COA must not be pro forma or a matter of course."); Sonnier v. Quarterman, 476 F.3d at 364-69 (denying CoA on a wide variety of challenges to the Texas capital sentencing scheme).

Reasonable minds could not disagree over this Court's conclusions as to petitioner's numerous procedural defaults on his complaints about the performance of his state trial counsel contained in petitioner's first, third, and twelfth claims herein. The procedural defaults which rendered most of those claims defaulted occurred in connection with petitioner's third state habeas corpus proceeding, when petitioner was represented by. the same attorneys who represented him in this cause for many years. Furthermore, reasonable minds could not disagree over this Court's conclusions as the inability of any of petitioner's ineffective assistance claims herein to satisfy the prejudice prong of Strickland. The facts of petitioner's capital offense were particularly brutal and senseless. His victims were defenseless and the level of violence petitioner inflicted upon Kaylene Harris went well beyond anything reasonably necessary to take her life. Petitioner has never accepted genuine responsibility for his capital offense or expressed sincere remorse for same. Instead, petitioner made a concerted efforts to conceal relevant information about his offense during his videotaped confessions by, among other things, fabricating a motive for his capital offense and failing to acknowledge therein his sexual assault on one of his victims or the multiple stab wounds he inflicted upon the same victim. Petitioner admitted he experienced a sense of relief upon his arrest, alluding to another crime he had perpetrated in Kentucky. Petitioner withheld from his defense team detailed information about his own background that was within petitioner's personal knowledge at the time of his trial. Instead, petitioner argues the failure of his trial counsel to discover this same evidence which petitioner concealed from his trial counsel prior to and during trial now warrants a finding that said counsel was professionally deficient in failing to adequately investigate petitioner's background. reasonable minds could not disagree over this court's conclusion that, when a petitioner actively conceals potentially mitigating evidence from his trial counsel concerning the defendant's allegedly abused and deprived childhood that was uniquely within the petitioner's own personal knowledge and then the petitioner attempts thereafter to fault his trial counsel's investigation into his background, petitioner fails to satisfy either prong of Strickland. A criminal defendant may not manufacture his trial counsel's deficient performance or "prejudice" himself within the meaning of Strickland by concealing from his own trial counsel the very mitigating evidence which later forms the basis for the petitioner's ineffective assistance claim. To hold otherwise would stand the legal principles underlying the Strickland standard of objective reasonableness on its head.

Petitioner procedurally defaulted on his first, third, fourth, fifth, sixth, and portions of his ninth, tenth, and twelfth claims herein. Even if reasonable minds could quibble over some of this court's rulings on procedural default, this court independently reviewed the entirety of petitioner's trial, direct appeal, and multiple state habeas corpus proceeding records and had alternatively rejected on the merits all of these procedurally defaulted claims. Petitioner's ninth through twelfth claims herein are all foreclosed by well-settled Supreme Court and Fifth Circuit precedent and are also foreclosed by the Teague barrier.

This Court reviewed at great length the entirety of the voir dire examination of all of petitioner's jurors plus those other venire members identified in petitioner's pleadings herein. There was nothing unreasonable with the state trial court's implicit factual findings with regard to the few vacillating venire members who appeared before the state trial court. This Court independently found no disqualified or biased jurors actually sat on petitioner's petit jury. Given the deference to which a state trial court's implicit credibility findings made during voir dire must be afforded, reasonable minds could not disagree with this Court's disposition of petitioner's fourth, fifth, and sixth claims herein.

Likewise, given the deference which a federal habeas court must afford a state trial court's application of its own state rules of evidence, there is no basis for disagreement among reasonable jurists with this Court's rejection on the merits of petitioner's seventh and eighth claims herein.

For the foregoing reasons, this Court concludes petitioner is not entitled to a Certificate of Appealability with regard to any of his claims herein. See Blue v. Thaler, 665 F.3d at 662-70 (rejecting a CoA for petitioner's constitutional challenges herein to the Texas capital sentencing scheme, as well as the legal bases underlying several of petitioner's ineffective assistance claims in his first and twelfth claims herein); Turner v. Quarterman, 481 F.3d at 298-99 (rejecting a CoA for claims similar, if not identical to petitioner's second and third claims herein, i.e., those arising from his trial counsel's inability to voir dire the jury venire on parole eligibility).

X. Request for an Evidentiary Hearing

Petitioner has requested an evidentiary hearing to develop new facts and new evidence relevant to petitioner's claims herein. Petitioner is not entitled to an evidentiary hearing to develop new facts and new evidence in support of those of his claims which the state habeas court rejected on the merits. See Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398-1400, 179 L.Ed.2d 557 (2011)(holding an evidentiary hearing is unnecessary when a state court has rejected a claim on the merits and federal habeas review of that rejection is governed by §2254(d)(1)); Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011)(holding the same), cert. denied, ___ U.S. ___, 132 S.Ct. 1100, 181 L.Ed.2d 987 (2012). Thus, petitioner is not entitled to a federal evidentiary hearing on his second, seventh, eighth, ninth, tenth, or eleventh claims herein.

In addition, this Court has independently reviewed petitioner's ineffective assistance claims contained in his first, third, and twelfth claims and finds petitioner has failed to allege sufficient specific facts to satisfy either prong of Strickland analysis on any of those claims. Petitioner's un-excused procedural defaults on his first, third, and twelfth claims herein, i.e., petitioner's ineffective assistance claims, also make unnecessary a federal evidentiary hearing on those claims. Petitioner is likewise not entitled to an evidentiary hearing on his Wiggins claim, i.e., his complaint that his trial counsel rendered ineffective assistance by failing to adequately investigate petitioner's background and present additional mitigating evidence establishing the extremely abused and deprived circumstances of petitioner's childhood. After having reviewed the entirety of petitioner's purportedly "new" mitigating evidence, this Court has concluded petitioner has alleged no facts in support of this claim which, if proved, would satisfy the either prong of Strickland.

The remainder of petitioner's claims herein are those which, by their very nature, require no new factual development. Petitioner's fourth, fifth, sixth, seventh, and eighth claims herein are all challenges to his state trial court's procedural or evidentiary rulings which must be evaluated based upon the record as it existed at the time of trial. Further factual development of such claims at this juncture is unnecessary.

Thus, petitioner is not entitled to a federal evidentiary hearing to develop new facts and new evidence supporting any of his claims herein.

Accordingly, it is hereby ORDERED that:

1. All relief requested in petitioner's amended federal habeas corpus petition, filed February 23, 2011, docket entry no. 122, as supplemented by petitioner's reply to respondent's answer, filed August 8, 2011, docket entry no. 134, is DENIED.

2. Petitioner is DENIED a Certificate of Appealability on all claims herein.

3. Petitioner's request for an evidentiary hearing is DENIED.

4. All other pending motions are DISMISSED AS MOOT.

5. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.

SIGNED this 27 day of June, 2012.

/s/ _________

ORLANDO L. GARCIA

United States District Judge

In the shorter of his two written statements, i.e., State Exhibit no. 5, petitioner supplemented his earlier account of his offense, in pertinent part, as follows:

When I went into the bedroom where the murder happened I got in the bottom bunk with the Harris girl. I don't know her first name but I knew she was kin [sic] Terry Harris. I don't know what I said but I threatened her with the knife to keep her quite [sic]. I cut her panties off and I cut or pulled her bra off. I touched her breast and I put my hand between her legs and I put my finger in her vagina. Shortly after that she jumped out of bed and I have already told the rest.