Amador v. Dretke

Full title: JOHN JOE AMADOR, Petitioner, DOUGLAS DRETKE, Director, Texas Department of…

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

Date published: Apr 11, 2005

Civil No. SA-02-CA-230-XR (W.D. Tex. Apr. 11, 2005)

Opinion

Civil No. SA-02-CA-230-XR.

April 11, 2005

MEMORANDUM OPINION AND ORDER

XAVIER RODRIGUEZ, District Judge

Petitioner John Joe Amador filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his Bexar County conviction for capital murder and sentence of death. For the reasons set forth at length below, Petitioner is not entitled to federal habeas corpus relief.

I. Statement of the Case

A. The Crime and Aftermath

1. Trial Testimony Regarding the Offense

There is no genuine dispute as to the events leading up to the fatal shooting of taxicab driver Reza "Ray" Ayari during the early morning hours of January 4, 1994. Around three a.m. that date, Ayari's friend Esther Imelda Garza telephoned Ayari and asked him to pick her up.¹ Garza testified at trial that she had been drinking heavily all that night, had fought with her boyfriend, and wanted to "cruise" with Ayari because she was depressed.² Garza testified that Ayari picked up the Petitioner and a young woman sometime between three and three-thirty a.m. somewhere on the west side of San Antonio.³ According to Garza's trial testimony, (1) the two wanted Ayari to take them to Poteet, (2) Ayari informed them that he would need at least twenty dollars, (3) Petitioner informed Ayari that he only had ten dollars but that he could get more money, (4) Petitioner directed Ayari to a house a few blocks away from where Ayari had picked up the couple, (6) Petitioner got out of the taxicab, jumped over a fence, and went to a window, (7) Petitioner then returned to the taxicab, (8) the couple then directed Ayari to a residence in rural south Bexar County with a long drive way, (9) as Ayari proceeded to drive toward the residence, Garza heard a loud noise inside the car that sounded like a gunshot, and (10) seconds later, Garza heard another shot and felt a bullet strike her in the face, shattering the inside of her mouth and her teeth.⁴

1 Garza testified extensively at a pretrial hearing held May 22, 1995, during which Petitioner sought to exclude Garza's in-court identification of Petitioner as one of the assailants who fatally shot Ayari and on July 5, 1995, at Petitioner's trial. See Statement of Facts from Petitioner's trial (henceforth "S.F. Trial"), Volume III, at pp. 6-75 and Volume XVIII, at pp. 93-252.

2 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 97-106.

3 Id., at pp. 107-10.

4 Id., at pp. 110-20.

Garza testified at trial that, although she had been drinking heavily that night and was "wasted," the shock of being shot and her accompanying fear brought her out of her alcohol-induced state.⁵ Garza testified further that (1) fearful she would be shot again if her attackers discovered she was still alive, she slumped over, kept her eyes closed, tried not to breathe, and remained still, (2) she heard car doors open and heard Ayari being dragged from the taxicab, (3) the female passenger yelled in a frightened voice to the Petitioner to help her remove Garza from the vehicle, (4) she heard Petitioner run around the vehicle and felt him unfasten her seat belt, pull her from the vehicle, and place her face down on the gravel driveway, (5) she felt someone go through her back pocket and remove her knife, (6) she heard the taxi start up and felt gravel and other debris being kicked at her body as the vehicle accelerated in reverse, and (7) she heard the taxicab strike the metal gate at the end of the driveway before it exited the property.⁶ Garza rose and ran to the residence, where she banged on the door and yelled for help.⁷

5 Id., at pp. 160-61, 167, and 210-11.

6 Id., at pp. 121-30.

7 Id., at pp. 131 135-36.

The only adult occupant of the residence testified at trial that (1) she was awakened by her dogs barking around four a.m. on the night in question, (2) she looked outside and observed a taxicab parked in front of her house with its headlights shining toward her house, (3) when she went to call the Sheriff, she heard what she thought was a door slam, and then heard the sound of tires spinning in gravel, (4) she heard a loud bang as the taxi backed out of her driveway, (5) next, she heard a female voice screaming for help and banging on her door, (6) she called 911 but did not let the hysterical woman inside her home, (7) instead, when she saw the woman was bleeding, she opened a window and handed the young woman a towel, (8) when the 911 operator called back, she gave the bleeding woman her phone, and (9) she later observed that the metal portion of her front gate was bent and that rocks had been chipped away from the gate's stone frame.⁸

8 S.F. Trial, Volume XVIII, testimony of Carol Covey, at pp. 35-47.

Esther Menchaca testified at trial that (1) at approximately 4:10 to 4:15 a.m. on the date in question, as she drove from Von Ormy, Texas to her place of employment in northeast San Antonio, she observed a taxicab parked in the grassy median of Highway 16 with its lights and headlights on and its doors open, (2) she slowed her vehicle as she approached the unoccupied taxicab, (3) shortly after passing the taxicab, she observed a young man and a young female with long hair walking along the roadside in the same direction she was going, (4) she checked her brights lights but neither person looked back toward her, (5) however, she was driving with her windows down and saw the faces of the young couple as she passed very close by them at a slow rate of speed and, again, when she glanced back at them in her mirror, (6) because she was running late for work, she did not stop her vehicle but proceeded on to work, (7) when she returned home that evening and learned what had happened, she telephoned 911, spoke with someone in the Bexar County Sheriff's Department, and informed then she had seen two people walking away from the taxicab, (8) several months later, on May 3, 1994, she selected Petitioner's photograph from a six-person photo array of Hispanic males and one female photograph (of Petitioner's cousin Sara Rivas) from a separate, six-person, female photo array, (9) she had never seen either Petitioner or Sara Rivas before January 4, 1994, and (10) as of May 3, 1994, i.e., the date she first saw the photo arrays, she had neither read nor heard any news reports regarding the crime in question and was unaware that law enforcement authorities had any suspects in custody.⁹

9 S.F. Trial, Volume XIX, testimony of Esther C. Menchaca, at pp. 63-82, 113-15, 117, 120-21, 124, 128-29.

Petitioner's girlfriend, Yvonne Martinez, testified at trial that (1) sometime in late 1993, Petitioner, whose nickname is "Ash," informed her that he "wanted to do something crazy" with a taxi driver, (2) at approximately three a.m. on January 4, 1994, Petitioner came to the window of her bedroom and woke her by knocking on the window,¹⁰ (3) Petitioner asked for money for a taxi ride, (4) she gave Petitioner about twenty dollars and went back to sleep, (5) later on that same date, Petitioner visited her home and informed her that he and his cousin Sara had taken a cab driver to Poteet and shot somebody, (6) more specifically, Petitioner told Martinez in a "normal" tone of voice that, when the cab driver remarked about the dogs barking, Petitioner shot him in the back of the head, and the cab driver's brains splattered on Petitioner and the windshield, (7) Petitioner told her that, in addition to the cab driver, a female passenger in the cab was also shot, (8) Petitioner told her that he and Sara dragged the bodies from the taxi and searched the bodies and the taxi for money but found only a pocket knife, (9) Petitioner told her that he and Sara tried to drive off in the taxi but something was wrong with a tire, (10) she had not gone to the police when Petitioner initially told her about his crime because she feared what the Petitioner would do to her, (11) on March 30, 1994, she gave a false written statement to police denying any knowledge of the crime, (12) Petitioner subsequently telephoned her from jail and threatened her, and (13) a few days later, Petitioner called her twice more at her place of employment but she hung up on him when he began threatening her again.¹¹

10 There was no genuine dispute at trial regarding the location where Ayari stopped his cab to permit Petitioner to exit the vehicle and solicit money from Yvonne Martinez. Esther Garza identified State Exhibit no. 44 as a photograph of the residence where Ayari briefly stopped while Petitioner jumped over a leaning hurricane fence, approached a window, and later returned to the taxicab. S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 113-14 197. Yvonne Martinez identified State Exhibit no. 44 as a photograph of her residence at 203 Moriama. S.F. Trial, Volume XIX, testimony of Yvonne Martinez, at p. 255.

11 S.F. Trial, Volume XIX, testimony of Yvonne Martinez, at pp. 251-83; Volume XX, testimony of Yvonne Martinez, at pp. 12-46.

Yvonne Martinez's father testified at Petitioner's trial that (1) on June 14, 1995 he intercepted a letter from the Petitioner to his daughter and (2) after initially tearing the letter into three pieces, he carefully taped it back together, read it, and turned it over to law enforcement officers.¹² Yvonne Martinez identified the handwriting on the letter as Petitioner's.¹³ A fingerprint examiner testified that he found four of Petitioner's fingerprints on the letter.¹⁴ The letter, State's Exhibit no. 63, was admitted into evidence and a translation of the slang and Spanish portions of the letter was presented to the jury through an interpreter.¹⁵

12 Id., Volume XX, testimony of Ramiro Martinez, at pp. 48-62.

13 Id., Volume XX, testimony of Yvonne Martinez, at p. 16.

14 Id., Volume XX, testimony of Melvin Lleras, at pp. 76-77.

15 S.F. Trial, Volume XX, testimony of Olga Mencke, at pp. 98-102.
In pertinent part, State Exhibit no. 63 read, as follows:

Hey Yvonne, it's me, the Ash. Here I write you a few lines to let you know what is going on with me. I am back on lock down again. Look, I write these letters to let you in on some stuff and you know what, I never hurt you when I was out. But you know what I can and have done to anyone who gets in my way. I ain't going to lie, girl, you were a big part of my life when I had you and then we were separated

* * * But I never thought it would be a thin line between love to hate in our relationship. Girl, I don't want you to come and visit me. I just want you to know that I hope to God you are not going to testify. Sara's not going to testify so the D.A.'s pissed off. So now I know that they are going to try to get you to testify. They will scare you and even try to act like they want to help you, but remember this, they ain't got anything, but that is if you don't give them anything.

I heard that you're going to testify. You better think smart. I saw your statement you gave the homicide detective. That was stupid of you. If they ask you to testify, you better tell them no way. If they ask why you made that statement, you better think of something good. We already talked in visitation about it. Okay, enough of that stuff. I am glad you had other baby. The song I am going to dedicate to him is Angel Baby.

You know me, girl, so don't ever forget me or turn against me. I don't need you making it worse in court for me. Tell Amanda I said hi and your Gringo guy. I found out where it all started out. Some guy named Carlos Garza heard you bragging, saying "Sure, my boyfriend Ash killed a taxicab driver." Damn, girl, you've got a big mouth. That guy is on our list. You know what list I am talking about.

That feels good, you are finally trying to get a life. I hear our old song. It's our anniversary. This is also the month we met, girl. I will see you again when I get out. This dude is always going to be down for his shit. A dude to the heart. I start picking a jury this coming Friday and my lawyer says it's best for you not to come.

Look, girl, I know you got scared quickly by these cops. Be strong and stick to your "I don't know shit, I didn't see shit," okay? Well, I guess I will let you go and will have someone check up on you to see you are living still. Oh, that Norteno that used to work at H.E.B., why were you driving around with him? Another thing, excuse me for asking for you at your job. That is all for now. El Loco.

2. The Investigation

When law enforcement officers first arrived at the scene of the fatal shooting, Esther Garza was sobbing hysterically, unable to furnish officers with even her own name.¹⁶ Eventually, Garza was able to advise officers at the scene that she had never before seen the male suspect, whom she described as possibly Arabic in ethnicity, neatly dressed, with short black hair, a mustache, medium complexion, and dark eyes.¹⁷

16 S.F. Trial, Volume XVIII, testimony of Samuel Presas, Jr., at pp. 65, 74, 78-79.

17 Id., Volume XVII, testimony of Samuel Presas, Jr., at pp. 80 82-85. Deputy Presas was the first law enforcement officer to arrive at the scene of the shooting. In addition to the foregoing description of the male suspect Garza furnished at the scene, Garza also described the female suspect as Hispanic, with long brown hair, and eyes that were not blue. Id., at pp. 84-86. Deputy Presas testified at trial that he listed the male suspects' ethnicity as "Asian" on his report even though Garza had indicated the male suspect was possibly Arabic in ethnicity because Presas' preprinted report did not have a box for "Arabic." Id., at p. 83.

On January 10, 1994, shortly after she was released from the hospital following surgery to remove the bullet that had lodged in her nasal cavity and to repair damage to her shattered cheek bone and teeth, Garza worked with a Bexar County Sheriff's Deputy to develop a composite sketch of the male suspect.¹⁸ In her first written statement, executed January 10, 1994, Garza described the male suspect as a Latin male but otherwise gave the same general description as she had the night of the shootings.¹⁹

18 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 140-43. The only aspect of Garza's description of the male suspect on January 10, 1994 that differs from Petitioner's actual physical appearance was Garza's assertion that the male suspect was slightly over six feet in height. It is undisputed that Petitioner is only five feet six inches in height. Garza explained this discrepancy at trial by testifying that, on the night of the shooting, she was slouched down in the front seat next to Ayari and that this fact caused her to overestimate Petitioner's height. S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 217-18.

19 A Bexar County Sheriff's Detective testified during the pretrial hearing on Petitioner's motion to suppress Garza's in-court identification that, on January 10, 1994, Garza gave a written statement in which she described the male suspect as a Latin male, wearing a black and white, long-sleeved, flannel shirt, with short black hair, clean cut save for a thin mustache, medium complexion, in his early-twenties. S.F. Trial, Volume IV, testimony of Robert Morales, at pp. 104-06.

On January 24, 1994, Bexar County Sheriff's Deputies, acting on an anonymous tip, brought Garza to the Sheriff's Department and had her peer through eye slits cut in a piece of cardboard that had been taped to a window into a room where the Petitioner, Yvonne Martinez, and others were located.²⁰ Garza recognized Yvonne Martinez as a former co-worker and informed law enforcement officers that Martinez had most definitely not been the female suspect who accompanied Petitioner on the night of the shootings.²¹ Garza testified at trial that she told the law enforcement officers present that, while Petitioner "looked like" the male suspect whom she had seen in Ayari's cab on the night in question, she could neither positively identify Petitioner as Ayari's murderer nor definitely exclude Petitioner as the shooter.²² Garza testified further at trial that her reluctance to identify Petitioner as Ayari's murderer on January 24, 1994 stemmed from her desire not to accuse anyone until she was certain and because the person who shot Ayari had slicked back, black hair whereas when she saw Petitioner on January 24, 1994, he was practically bald.²³

20 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 143-45, 228-29, 232, 237.

21 Id., at pp. 144 237.

22 Id., at pp. 145, 229, 232. During the pretrial hearing held on Petitioner's motion to suppress Garza's in-court identification, Bexar County Sheriff's Deputy Sal Marin testified that, on January 24, 1994, Garza (1) recognized Yvonne Martinez as a former co-worker, (2) appeared to recoil a bit when she viewed Petitioner, but (3) told him that Petitioner might be the person who shot Ayari but that she was unwilling to make a firm commitment on that date, saying "I'm not up to that right now." S.F. Trial, Volume IV, testimony of Sal Marin, at pp. 177-79.

23 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 145 229. This portion of Garza's trial testimony was consistent with Garza's testimony at the pretrial hearing on Petitioner's motion to suppress Garza's in-court identification. S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 25 58-61. At the pretrial hearing, however, Garza also explained that one of the reasons she chose not to identify Petitioner as Ayari's murderer on January 24, 1994 was that Petitioner's height was different from what she recalled from the night of the shootings. S.F. Trial, Volume III, testimony of Esther Imelda Garza, at p. 25.

On February 3, 1994, Garza submitted to a hypnosis session but was unable to furnish any additional details regarding the appearance of the male suspect, either during or after being placed in a hypnotic state.²⁴ In fact, the composite sketch of the male suspect which Garza generated on that date was virtually identical to the composite sketch she had earlier produced.²⁵

24 S.F. Trial, Volume XVIII, testimony of Esther Garza, at p. 146.

25 At trial, Garza identified State Exhibit no. 18 as the composite sketch she had created on January 10, 1994 and State Exhibit no. 1 as the composite sketch she created on February 3, 1994, after undergoing hypnotic regression. S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 140, 146, 215, 217. Two composite sketches are found among the exhibits from Petitioner's trial submitted to this Court by respondent. One of the sketches appears as part of Defendant's Exhibit no. 1 in S.F. Trial, Volume XXIII, i.e., the records relating to Garza's hypnosis session. The other composite sketch (presumably State's Exhibit no. 18) appears on an unnumbered page immediately following State's Exhibit no. 16, i.e., Petitioner's written statement, also in S.F. Trial, Volume XXIII. The two composite sketches are virtually identical.

During January and February 1994, law enforcement officers showed Garza three different, six-person photo arrays of Latin males, but Garza was unable to identify any of the persons in those arrays as the person who fatally shot Ayari.²⁶ Significantly, those arrays included no photographs of Petitioner.²⁷

26 Both during the pretrial hearing on Petitioner's motion to suppress Garza's in-court identification and at trial, Garza candidly admitted that she had not selected or identified any of the Latin males from the photo arrays she was shown prior to March 30, 1994, but she also insisted that she could not recall whether Petitioner's photograph had appeared in any of those photo arrays. S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 22-24, 30-33, 53-54, 67-68, 73; Volume XVIII, testimony of Esther Garza, at pp. 150-52, 221, 224-26. At trial, Garza testified that while she had recognized one of the males in the photo arrays she was shown prior to March 30, 1994, that person had no involvement in Ayari's murder. S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 224-26.

27 At trial, a Bexar County Deputy Sheriff testified that while Garza had been unable to identify any of the males shown in the photo arrays she examined prior to March 30, 1994, the simple explanation for that fact was that Garza was not shown a photo array that included Petitioner's photograph until March 30, 1994. S.F. Trial, Volume XIX, testimony of Sal Marin, at p. 155. At the evidentiary hearing held in Petitioner's state habeas corpus proceeding, all six of the photo arrays shown to Garza prior to March 30, 1994 (all of which consisted of six photographs each, with three arrays entirely of males and the other three entirely of females) were admitted into evidence as State's Exhibit nos. 1-6. S.F. State Habeas Hearing, Volume III, testimony of Robert Morales, at pp. 13, 17-18, 21-22, 24, 110-12, 115. It was undisputed that none of those six photo arrays included any photographs of either Petitioner or Sara Rivas. Id., at pp. 17-18, 110-12, 115. For unknown reasons, this critical fact was never disclosed to the state trial court during the pretrial hearing on Petitioner's motion to suppress Garza's in-court identification of Petitioner.

During the same time frame, Garza was shown three different, six-person photo arrays of Latin females but she was never able to identify any of the persons in those arrays as the female who accompanied Petitioner on the night of the shootings.²⁸ None of those photo arrays included a photograph of Sara Rivas.²⁹

28 S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 22, 32, 50-52, 59; Volume XVIII, testimony of Esther Garza, at pp. 191 245.

29 S.F. State Habeas Hearing, Volume III, testimony of Robert Morales, at pp. 17-18, 110-12, 115.

On or about March 16, 1994, Garza telephoned one of the Bexar County Sheriff's Detectives investigating the case and informed him that she had learned through a friend that the two persons who had shot her and Ayari were named John Joe Amador and Sara Rivas.³⁰ Garza gave the detective only Petitioner's and Rivas' names and no other identifying information, except for the fact that Rivas resided in Houston.³¹ Armed with this information, Bexar County Sheriff's Detectives contacted law enforcement officers in Brookshire, Texas and arranged to interview Sara Rivas there.³² On Match 29, 1994, Rivas gave a written statement implicating Petitioner in Ayari's fatal shooting.³³

30 S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 28-29, 48, 58, 62-64. Insofar as Petitioner complains that the prosecution "withheld" the identity of Esther Garza's friend Carlos Garza from his trial counsel, that assertion is factually inaccurate. Carlos Garza's identity was disclosed to everyone involved in Petitioner's trial during Esther Garza's testimony at the pretrial hearing held May 22, 1995. Id.

31 S.F. Trial, Volume IV, testimony of Robert Morales, at pp. 24-25. Contrary to the suggestions contained in Petitioner's pleadings in this case, there is no evidence in the record now before this Court establishing that Carlos Garza ever gave Esther Garza any information regarding the physical appearance of either Petitioner or Sara Rivas or that Esther Garza was aware, on the date she identified Petitioner's photograph as that of Ayari's murderer, that Petitioner had been romantically involved with Yvonne Martinez.

32 S.F. Trial, Volume IV, testimony of Robert Morales, at p. 90; Volume XIX, testimony of Sal Marin, at pp. 148-49.

33 S.F. Trial, Volume IV, testimony of Robert Morales, at pp. 94-95; Volume IV, testimony of Sal Marin, at p. 182. Although Sara Rivas' written statement was not admitted into evidence at Petitioner's trial, it was admitted into evidence during the pretrial hearing on Petitioner's motions to suppress as State's exhibit no. 6. S.F. Trial, Volume IV, at p. 29. In pertinent part, Rivas' statement described the fatal shooting of Ayari as follows:

John was also talking to the driver. They were talking about little things, I don't remember.

We turned on a street, I'm not sure, but I think it might be Smith road, and John handed me a gun. It was a little gun, Black with a pink handle. Detective Morales showed me a .25 caliber Beretta, and it was about the same size.

I was scared. I knew what it was going to be used for, because after he handed me the gun, he made expressions to me with his face, and hands, and I knew he wanted me to shoot the girl in the front seat.

We were still going down a long street and we turned and we came to some houses, and John told him to turn again. John told the driver that we were at my grandmothers [sic] house, and the driver parked. I looked down at the gun, and that's when John shot. I looked up, and saw like smoke or gunpowder or something, and I saw the driver fall and hit the steering wheel.

John was going to shoot the girl, but his gun jammed, and that's when I took it off the safety, and I shot at the girl in the front seat. John got out of the back of the car, and he was pulling the driver out of the car. I got off, and I opened her door, and I didn't want to touch her, so I ran around the car.

I told John, "you get her", and I asked him what he wanted to do. He was going to put the bodies in the back of the car, but I don't think he could pick the guy up, because he was too heavy. I went back to the girl and I unbuttoned her seatbelt, and I just let her fall out. I got her from her shirt and pulled her out. I guess she pulled herself out too, because she landed a distance away from the car.

S.F. Trial, Volume XXIII, at State's Exhibit no. 6.

The following day, on March 30, 1994, Bexar County law enforcement officers displayed for Esther Garza a new, six-man, photo array (admitted into evidence at Petitioner's trial as State's Exhibit no. 2) and Garza identified Petitioner's photograph therein as that of the male suspect who had been in Ayari's taxicab at the time of the shootings.³⁴ This was the first time Esther Garza had ever been shown a photo array that included the Petitioner's photograph.³⁵ On March 31, 1994, a warrant for Petitioner's arrest was issued.³⁶ By then, however, Petitioner had fled to California.³⁷

34 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 150-54; Volume XIX, testimony of Sal Marin, at pp. 154-56.

35 At the pretrial hearing held on Petitioner's motion to suppress Esther Garza's in-court identification of Petitioner as Ayari's murderer, Esther Garza testified that she could not recall whether the photo arrays she was shown prior to March 30, 1994 had included any photographs of the Petitioner. S.F. Trial, Volume III, testimony of Esther Imelda Garza, at p. 73. At trial, Esther Garza testified that the photo array she was first shown on March 30, 1994, i.e., State's Exhibit no. 2, was not the same photo array she had been shown on January 24, 1994. S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 224-25. Likewise, at trial, a Bexar County Sheriff's Deputy testified, without contradiction, that none of the photo arrays shown to Esther Garza prior to March 30, 1994 included photographs of the Petitioner. S.F. Trial, Volume XIX, testimony of Sal Marin, at p. 155. During the evidentiary hearing held in Petitioner's state habeas corpus proceeding a Bexar County Sheriff's detective testified, without contradiction from any other witness or other evidence, that (1) the documents marked and admitted into evidence during that hearing as State Exhibit nos. 1-6 included all of the photo arrays that had been shown to Esther Garza prior to March 30, 1994 and (2) none of those photo arrays included photographs of either Petitioner or Sara Rivas. S.F. State Habeas Hearing, Volume III, testimony of Robert Morales, at pp. 13, 17-18, 21-22, 24, 115, 120-22.

36 S.F. Trial, Volume XIX, testimony of Sal Marin, at p. 156.

37 Id.

Petitioner subsequently turned himself in to authorities in Riverside, California and was returned to San Antonio.³⁸ Shortly after his return, on April 13, 1994, Petitioner gave Bexar County law enforcement officers a written statement in which he implied that he was present during the fatal shooting of a taxi driver and the shooting of a young woman by Sara Rivas.³⁹

38 S.F. Trial, Volume IV, testimony of Fred Moreno, at pp. 153-56.

39 Petitioner's statement was admitted into evidence at Petitioner's trial as State's Exhibit No. 61 and read in its entirety in open court. S.F. Trial, Volume XIX, at pp. 167-69.
In pertinent part, Petitioner's statement reads as follows:

My name is John Joe Amador. I am 18 years old and I live at 3907 Eldridge Street in San Antonio, Texas. I have told Sergeant Marin that I am going to tell him about the murder of the taxicab driver and the shooting of a young girl.

I am going to tell my side of the story the way I want it to come out. I don't need no attorney or anything for this. Sergeant Marin has read me my rights and I understand my rights.

During the early part of January 1994, I don't remember the date other than it was sometime shortly after New year's Day, this is when this mess all started. It was during the night. I don't remember what time it was, but I do know it was late.

They say I shot and killed a taxicab driver and my cousin Sara Rivas shot a young woman in the face. If this is true, Sara would have shot the young woman because I would have ordered her to do it. Sara is my cousin and she is not that type of a person. She is from Houston and was visiting here in San Antonio when all of this shit happened. She wanted to visit her grandma who lives near Poteet, Texas, but she never made it over there.

In this situation I would have handed her a gun and I would have ordered her to shoot the woman with that gun. If all of this stuff about the murder is true and they can prove it in court, then I will take my death sentence.

This is all I want to say. I don't want to say any more. I will just wait for my day in court.

A copy of Petitioner's written statement, i.e., State Exhibit no. 61, appears at S.F. Trial, Volume XXIII, i.e., the exhibit volume.

3. Pretrial Hearing on Petitioner's Motions to Suppress

Petitioner filed numerous motions to suppress substantial portions of the prosecution's evidence against him.⁴⁰ On May 22-24, 1995, the state trial court held an evidentiary hearing on those motions,⁴¹ at the conclusion of which it granted in part and denied in part Petitioner's motions, and held (1) that the prosecution would be permitted to introduce (a) the in-court identification testimony of both Esther Garza and Esther Menchaca, (b) substantial portions of Petitioner's formal written statement given on April 13, 1994, as well as (c) portions of the inculpatory oral statements Petitioner made to law enforcement authorities on April 14, 1994 during an unsuccessful trip to Poteet to locate the murder weapon but (2) that the prosecution could not introduce evidence relating to other inculpatory oral statements Petitioner made to law enforcement officers on April 14, 1994 during the fruitless gun hunt.⁴²

40 Transcript of pleadings, motions, and other documents filed in Petitioner's state trial court proceeding (henceforth "Trial Transcript"), at pp. 33-34 (motion for Jackson v. Denno hearing on voluntariness of Petitioner's confession), 88-90 (motion to suppress evidence secured during a search), 95-96 (motion to suppress Petitioner's oral statements), 129-30 (motion to suppress Petitioner's written statement), 198-200 (motion to suppress items seized at the time of Petitioner's arrest).

41 At that hearing, the state trial court heard extensive testimony from Esther Garza concerning her encounter with Petitioner the night of Ayari's murder and her efforts to identify Ayari's killer, during which Garza adamantly insisted that (1) she had adequate opportunity to view Petitioner while he was riding and conversing with her and Ayari in the taxicab, (2) she was intoxicated at the time of the shooting but could still walk and see straight, (3) her refusal to identify Petitioner on January 24, 1994 had resulted from the dramatic difference in Petitioner's hair length on that date from the night of the shooting and her mistaken belief on the night of the shooting that the Petitioner was taller than he actually appeared on January 24, 1994, and (4) she was certain the Petitioner was the male passenger to whom Ayari gave a ride on the night in question. S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 6-75.
Esther Menchaca testified at the same hearing that (1) she had never seen either Petitioner or Sara Rivas prior to the night of the murder, (2) she got a clear look at both their faces as she drove past them and then, again, when she looked back at them in her pickup truck's mirror, (3) she notified law enforcement officers the evening following the murder that she had seen two persons walking from the taxicab and that she could identify both, (4) prior to being shown a pair of photo arrays, she had neither read any newspaper articles nor seen any televised news reports concerning the offense or the arrest of any suspects, and (5) she had no difficulty picking out either the Petitioner's or Sara Rivas' photographs from the photo arrays she was first shown on May 3, 1994. S.F. Trial, Volume IV, testimony of Esther C. Menchaca, at pp. 110-49.

42 Trial Transcript, at pp. 3, 36, 94, 100, 134.

B. Indictment

On June 30, 1994, a Bexar County grand jury returned an indictment against Petitioner in cause no. 94-CR-3642 on a charge of capital murder.⁴³

43 Trial Transcript, at p. 2. More specifically, that indictment charged Petitioner with having intentionally and knowingly caused the death of Reza Ayari by shooting Ayari with a deadly weapon, namely a handgun, while in the course of committing and attempting to commit the robbery of Ayari.

C. Guilt-Innocence Phase of Trial

The guilt-innocence phase of Petitioner's capital murder trial commenced on July 5, 1995.

1. The Prosecution's Evidence

In addition to the testimony outlined above, the jury heard testimony from the Bexar County medical examiner that (1) Ayari died as a result of a single gunshot wound to the head, which was instantly fatal, (2) the fatal shot was fired into the back of Ayari's head from a range of approximately three to eight inches, (3) Ayari also sustained multiple abrasions to the backs of his hands that were consistent with Ayari's body being dragged over gravel, and (4) Ayari's face and nose sustained contusions and lacerations that were consistent with Ayari's head having pitched forward at the instant the fatal shot was fired and his body later having been dragged face down across gravel.⁴⁴ On cross-examination, the medical examiner testified that approximately seventy dollars in cash was found in Ayari's clothing at the time of autopsy.⁴⁵ A firearms and tool mark expert testified that (1) bullet fragments removed from Ayari's body during autopsy were consistent with the .380 caliber shell casing found at the scene of the fatal shooting and (2) both the .380 caliber handgun used to kill Ayari and the .25 caliber handgun used to shoot Garza were deadly weapons.⁴⁶

44 S.F. Trial, Volume XX, testimony of Vincent DiMaio, at pp. 139-51.

45 Id., at pp. 155-56.

46 S.F. Trial, Volume XX, testimony of Ronald Dodson, at pp. 123-28.

2. The Defense's Evidence

The defense's only witness at the guilt-innocence phase of trial was a Bexar County Deputy Sheriff who testified that (1) three twenty dollar bills were removed from a bag found inside the abandoned taxicab, (2) no legible fingerprints were found on the taxicab that could be linked to Petitioner, and (3) no physical evidence linking Petitioner to the crime was ever recovered from Petitioner's residence.⁴⁷

47 S.F. Trial, Volume XX, testimony of Robert Anthony Morales, at pp. 173-202. On re-cross-examination, Detective Morales acknowledged that Petitioner had taken Ayari's taxicab after fatally shooting Ayari. Id., at p. 201.

3. The Verdict

On July 10, 1995, after deliberating fewer than five hours, the jury returned its verdict finding Petitioner guilty of capital murder.⁴⁸

48 Petitioner's jury retired to deliberate at approximately 9:10 a.m. and returned its verdict at approximately 1:45 p.m. the same date. Trial Transcript, at pp. 307-17 321; S.F. Trial, Volume XXI, at pp. 80-81.

D. Punishment Phase of Trial

Following a brief recess, the punishment phase of Petitioner's capital murder trial commenced on July 10, 1995.

1. The Prosecution's Evidence

The prosecution presented documents and testimony establishing that (1) Petitioner had been indicted in 1991 along with his mother and his mother's boyfriend for the murder of Petitioner's step-father, Armando Villarreal, whose stabbed body had been dumped in a ravine, (2) while Petitioner's mother's boyfriend remained a fugitive from justice, Petitioner and his mother entered into plea bargains in which they each pleaded guilty to a lesser charge of accomplice to murder, and (3) Petitioner served three years in the custody of the California Youth Authority before he was paroled and came to Texas.⁴⁹

49 S.F. Trial, Volume XXIII, State's Exhibit nos., 69 70; S.F. Trial, Volume XXI, at pp. 85-86; and Volume XXI, testimony of Hobart Gray, at pp. 87-116.

A Bexar County Adult Detention Center ("BCADC") officer testified that, between April 1994 and July 1995, Petitioner had been cited and found guilty of more than two dozen different violations of BCADC rules, ranging from relatively minor infractions such as possession of rolling papers in that non-smoking facility to numerous, far more serious episodes in which Petitioner either assaulted other prisoners or guards or made threats against others.⁵⁰

50 S.F. Trial, Volume XXI, testimony of Steven Garza, at pp. 116-24, 130-33, 138-67. More specifically, BCADC Captain Garza testified that Petitioner had been cited and found guilty of (1) assaulting another inmate on June 9, 1994, (2) making retaliatory threats against a guard on July 17, 1994, (3) fighting with another inmate on August 8, 1994, (4) threatening to assault another inmate on August 18, 1994, (5) possessing a razor blade on October 8, 1994, (6) assaulting another inmate on June 3, 1995, and (7) fighting on July 5, 1995. Id.

A different BCADC officer testified that he witnessed an incident on June 7, 1994 in which Petitioner (1) refused repeated orders to leave the visitation area, (2) had to be carried, kicking and screaming, from the visitation area of the jail, and (3) threatened to harm the guards who had removed him from that area, as well as the guards' families.⁵¹ Another BCADC guard testified that, on July 7, 1994, he overheard Petitioner make a telephone call during which Petitioner directed the person on the other end of the line to locate and "shoot up" the homes of two identified BCADC guards.⁵² Yet another BCADC guard testified that he witnessed an incident on August 8, 1994 in which Petitioner and three or four other inmates crossed over into an area of the jail they were prohibited from entering and struck, kicked, and beat another inmate with their fists and feet, despite the total absence of any provocation by the victim.⁵³

51 S.F. Trial, Volume XXI, testimony of Jesus Rodriguez, at pp. 168-79.

52 S.F. Trial, Volume XXI, testimony of Frank C. Tapia, III, at pp. 180-88.

53 S.F. Trial, Volume XXII, testimony of Robert Eugene Brock, at pp. 10-15.

2. The Defense's Evidence

Petitioner's grandmother testified that (1) Petitioner's father, a glue-sniffing career criminal named Rudy Rios, had abused Petitioner both physically and emotionally as a child, (2) on one occasion, Rios locked the four-year-old Petitioner in a closet with a rat, (3) Petitioner cared deeply for his younger brother Ronnie and took Ronnie's death at age 18-months particularly hard, and (4) Petitioner's mother blamed Petitioner for Ronnie's death even though Petitioner was only five years old at the time of Ronnie's death.⁵⁴

54 S.F. Trial, Volume XXII, testimony of Josie Corona Amador, at pp. 16-35.

Petitioner's uncle testified that (1) Petitioner came to him in March 1994 in California and explained that law enforcement authorities in Texas were seeking Petitioner's arrest for capital murder, (2) he negotiated Petitioner's surrender to law enforcement authorities in California in April 1994, (3) Petitioner had experienced a rough life, never had a mother or father to support him or show any concern for him, but (4) during Petitioner's incarceration in California, Petitioner earned numerous certificates and participated in a drug treatment program.⁵⁵

55 S.F. Trial, Volume XXII, testimony of Armando Corona Amador, at pp. 35-52.

Petitioner's mother testified that (1) Petitioner's father had been both physically and emotionally abusive toward Petitioner, (2) she had been involved with drugs and a series of abusive boyfriends during Petitioner's childhood, (3) Petitioner witnessed Armando Villarreal become drunk and physically abuse her, (4) as a result, Petitioner, though still a child, stayed close to her and tried to protect her, (5) Petitioner drank and did drugs while a child, (6) she frequently gave Petitioner money and sent him to the movies while she stayed out late shooting pool and drinking, (7) Petitioner overheard his father, Rudy Rios, confess to having murdered Petitioner's younger brother Ronnie, (8) she failed to furnish Petitioner with the kind of attention and care a mother should show her child, and (9) as a result, Petitioner never had a chance to grow up in a stable and loving environment.⁵⁶

56 S.F. Trial, Volume XXII, testimony of Aurora Hernandez, at pp. 104-33.

A licensed psychological associate testified that (1) he had interviewed Petitioner and given Petitioner a battery of psychological tests, (2) he concluded that Petitioner was neither mentally ill, developmentally disabled, nor mentally retarded, (3) as a result of a host of environmental factors, however, particularly living in poverty, growing up in overcrowded conditions in a high-crime neighborhood, and being exposed to extreme violence, drug and alcohol abuse, and sexual activity at an early age, Petitioner was extremely aggressive and very dangerous, (4) Petitioner was young, immature, judgment-impaired, and extremely violent, (5) however, most of the influences that tended to make Petitioner violent were factors that tend to diminish over time, (6) if Petitioner were isolated from society for twenty to forty years, he might mature into a much less dangerous individual, and (7) eventually, a more mature Petitioner might be able to re-integrate into society.⁵⁷ On cross-examination, this expert admitted that, even in prison, the probability existed that Petitioner would remain aggressive and violent for the foreseeable future.⁵⁸

57 S.F. Trial, Volume XXII, testimony of Gordon Potter, at pp. 61-85, 98-100, 102.

58 Id., at pp. 85-98.

Petitioner also introduced the autopsy report for Ayari, which showed traces of cocaine in Ayari's system at the time of his death.⁵⁹

3. The Verdict

59 S.F. Trial, Volume XXII, at pp. 135-36; Volume XXIII, at Defendant's Exhibit no. 10.

On July 11, 1995, after deliberating slightly more than two hours, the jury returned its verdict, finding (1) beyond a reasonable doubt that there was a probability the Petitioner would commit criminal acts of violence constituting a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of Petitioner's offense, Petitioner's character and background, and Petitioner's personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence for Petitioner.⁶⁰

60 Trial Transcript, at pp. 326-27; S.F. Trial, Volume XXII at pp. 166-68. Petitioner's jury began its deliberations at the punishment phase of trial at approximately 3:26 p.m. on July 11, 1995 and returned its verdict at approximately 5:46 p.m. that same date. Trial Transcript, at pp. 325 327.

E. Direct Appeal

On July 9, 1996, Petitioner filed his direct appeal from his conviction and sentence.⁶¹ In an unpublished opinion issued April 23, 1997, the Texas Court of Criminal Appeals affirmed Petitioner's conviction and sentence.⁶² Petitioner did not thereafter file a petition for writ of certiorari with the United States Supreme Court.

61 In his appellant's brief, Petitioner presented six points of error, consisting of arguments that (1) the state trial court erred in admitting the in-court identification testimony of Esther Garza, (2) the trial court erred in instructing the jury at the punishment phase of trial that ten jurors had to answer either of the capital sentencing special issues in a manner favorable to Petitioner before such answers could be given to those issues, (3) the trial court erred in failing to quash the indictment against Petitioner based on the failure of the indictment to allege the issues to be decided by the jury at the punishment phase of trial, (4) the death penalty violates the Eighth Amendment, (5) the death penalty violates the United Nations Charter, and (6) there was factually insufficient evidence to support the jury's guilty verdict.

62 John Joe Amador v. State, No. 72,162 (Tex.Crim.App. April 23, 1997).

F. State Habeas Corpus Proceeding

On December 12, 1997, Petitioner filed his initial application for state habeas corpus relief, asserting some twenty-eight claims for relief, including, among other claims, eleven assertions of ineffective assistance by his trial counsel, eight assertions of ineffective assistance by his appellate counsel, and six assertions of prosecutorial misconduct.⁶³ On December 17, 1997, Petitioner filed a supplemental state habeas application in which he reiterated many of the claims he had asserted in his initial application but added additional complaints that (1) the prosecution knowingly withheld, and actively concealed, exculpatory evidence establishing that Esther Garza had been shown more than one photo array and (2) Petitioner's arrest was based on a violation of the Family Code, which invalidated Sara Rivas' confession.⁶⁴

63 State Habeas Transcript, Volume I of II, at pp. 1-68.

64 State Habeas Transcript, Volume I of II, at pp. 119-75.

The state trial court held an evidentiary hearing on Petitioner's claims for state habeas relief on October 1, 2, and 7, 1998, and heard testimony from Petitioner's appellate counsel, one of Petitioner's trial counsel, law enforcement officers who investigated Petitioner's crime, and others, including a mental health expert. On February 14, 2001, the state trial court issued its findings of fact, conclusions of law, and recommendation that Petitioner's state habeas corpus application be denied.⁶⁵ In an unpublished per curiam order issued September 12, 2001, the Texas Court of Criminal Appeals adopted the state trial court findings and conclusions and denied state habeas corpus relief.⁶⁶

65 State Habeas Transcript, Volume II of II, at pp. 283-375.

66 Ex parte John Joe Amador, No. 48,848-01 (Tex.Crim.App. September 12, 2001).

G. Federal Procedural Background

On May 24, 2002, Petitioner filed his original petition for federal habeas corpus relief in this cause, asserting therein some forty-one claims for relief, many of which had never been presented to any state court.⁶⁷ On May 2, 2003, Petitioner filed his amended and supplemental petition for federal habeas corpus relief asserting therein nineteen claims for relief, denominated as 1-16, 19, 23, and 24.⁶⁸

67 Docket entry no. 8.

68 Petitioner's Supplemental and Amended Petition for Writ of Habeas Corpus, filed May 2, 2003, docket entry no. 19 (henceforth "Petitioner's Amended Petition").

On September 3, 2003, respondent filed his answer and motion for summary judgment, arguing in part that Petitioner had presented this Court with a number of new documents that had never been presented to any state court.⁶⁹

69 Docket entry no. 23.

On December 31, 2003, Petitioner filed his reply to respondent's motion for summary judgment, and argued in reply that "futility" excused his failure to present the state habeas court with many of the claims and documents Petitioner presented to this court as attachments or exhibits to his federal habeas pleadings.⁷⁰

70 Docket entry no. 26.

II. The AEDPA 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 (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. Williams v. Taylor, 529 U.S. 362, 404-05 (2000); and 28 U.S.C. § 2254(d).

The Supreme Court has concluded that the "contrary to" and "unreasonable application" clauses of 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (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. Mitchell v. Esparza, 540 U.S. 12, 15-16 (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 that 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 decision contradicts them.'" Mitchell, 540 U.S. at 16.

Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the Petitioner's case. Wiggins v. Smith, 539 U.S. 510, 520 (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." Wiggins, 539 U.S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and an "unreasonable" application is different from a merely incorrect one. Wiggins, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("[I]t is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner."). 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, ___, 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.'").

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings, requiring that a Petitioner challenging state court fact findings establish by clear and convincing evidence that the state court's findings were erroneous. See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000) (holding state court fact findings are presumed correct, and the Petitioner has the burden of rebutting the presumption by clear and convincing evidence); Hicks v. Johnson, 186 F.3d 634, 637 (5th Cir. 1999), cert. denied, 528 U.S. 1132 (2000) (holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the Petitioner rebuts them by clear and convincing evidence); Hernandez v. Johnson, 108 F.3d 554, 558 n. 4 (5th Cir.), cert. denied, 522 U.S. 984 (1997) (holding that under the AEDPA, the proper forum for the making of all factual determinations in habeas cases will shift to the state courts "where it belongs" and recognizing that the AEDPA clearly places the burden on the federal habeas Petitioner "to raise and litigate as fully as possible his potential federal claims in state court"); 28 U.S.C. § 2254(e)(1).

III. Petitioner's Unexhausted Hearsay Exhibits

A. The Exhaustion Requirement Petitioner's New Exhibits

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. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To provide the State with this necessary "opportunity," the prisoner must "fairly present" his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. O'Sullivan, 526 U.S. at 844-45 (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 (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 (2002).

Under the AEDPA, absent an express waiver of the exhaustion requirement, federal courts ordinarily lack the power to grant habeas corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir. 2003), cert. denied, ___ U.S. ___, 125 S. Ct. 250, 160 L. Ed.2d 56 (2004) (" 28 U.S.C. § 2254(b)(1) requires that federal habeas Petitioners fully exhaust remedies available in state court before proceeding in federal court."). The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting federal collateral relief under 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).

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. 364, 365 (1995). The exhaustion doctrine also requires that the Petitioner present his federal claim in a manner reasonably designed to afford the State courts a meaningful opportunity to address it. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). 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. 27, 29-33 (2004) (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 that Petitioner has attached as exhibits to his supplemental and amended federal habeas corpus petition a host of hearsay documents and affidavits that have never been presented to any state court.⁷¹ Respondent is also correct that, insofar as these exhibits either (1) constitute materially new evidence supporting Petitioner's federal claims or (2) fundamentally alter the nature of the claims Petitioner presented to the state courts, this new evidence renders Petitioner's federal petition unexhausted. See Kunkle, 352 F.3d at 988 (holding a Petitioner failed to exhaust state remedies when he supplemented his federal claims with affidavits that presented "significant evidentiary support" that had not been presented to the state courts); Anderson v. Johnson, 338 F.3d 382, 386-88 (5th Cir. 2003) (recognizing the distinction for exhaustion purposes between new affidavits furnishing "significant evidentiary support" for a claim and affidavits that merely supplement the evidence presented to the state courts without fundamentally altering the Petitioner's claim). However, the presentation for the first time in a federal habeas corpus proceeding of affidavits and other documentary evidence that collectively do not fundamentally alter the claim presented to the state courts does not raise exhaustion problems. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

71 Respondent's Answer and Motion for Summary Judgment, filed September 3, 2003, docket entry no. 23 (henceforth "Respondent's Answer"), at pp. 8-9.

Having carefully reviewed Petitioner's brief on direct appeal, as well as Petitioner's pleadings filed in his state habeas corpus proceeding, this Court finds that none of the Petitioner's underlying Brady claims to which these new exhibits relate has ever been presented to any state court.

B. No Right to Further Factual Development

Petitioner was given a full and fair opportunity to conduct discovery and to present the state habeas court with documentary and testimonial evidence during Petitioner's state habeas corpus proceeding. Under the AEDPA, if a Petitioner failed to develop the factual basis of a claim in state court, he is entitled to a federal evidentiary hearing only if (1) the claim relies on either (a) a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence and (2) the facts underlying the claim are sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact-finder would have found the Petitioner guilty of the underlying offense. Dowthitt v. Johnson, 230 F.3d 733, 757 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001); 28 U.S.C. § 2254(e)(2). Petitioner was afforded a full and fair opportunity to develop and litigate his claims for relief herein during the evidentiary hearing held in his state habeas corpus proceeding. Other than his unexhausted, legally frivolous Atkins claim, Petitioner has not identified any new legal theories that were unavailable at the time he filed and litigated his state habeas corpus pleadings. Petitioner has offered no rational explanation for his failure to develop and present his numerous, unexhausted Brady claims herein to the state courts during his state habeas corpus proceeding. Nor has Petitioner offered any rational explanation for his failure to fully develop any and all evidence supporting his otherwise exhausted ineffective assistance claims during his state habeas evidentiary hearing. Nor does Petitioner offer any explanation for his state habeas counsel's failure to develop and present to Petitioner's state habeas court the evidence contained in the exhibits Petitioner has attached to his supplemental and amended federal habeas corpus petitions. Petitioner has failed to allege any facts showing that he was unable, despite the exercise of due diligence, to present the same evidence contained in these new exhibits to the state habeas court. Under such circumstances, Petitioner is not entitled to a federal evidentiary hearing to further develop the facts supporting his claims herein. Nor is Petitioner entitled to supplement his pleadings with unexhausted evidentiary materials.

C. Hearsay in the Affidavits

Respondent has filed a motion for summary judgment in this cause. The admissibility of evidence in a summary judgment proceeding is subject to the same standards and rules that govern the admissibility of evidence at trial. Rushing v. Kansas City So. Ry Co., 185 F.3d 496, 504 (5th Cir. 1999), cert. denied, 528 U.S. 1160 (2000). In order to constitute proper summary judgment proof, affidavits must affirmatively show the affiant's competence to testify as to the matters stated therein and that the facts stated in the affidavits are based on the affiant's personal knowledge. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987) (holding that summary judgment affidavits must be based upon personal knowledge, contain admissible evidence, and affirmatively demonstrate the competency of the affiant to testify as to the matters contained therein). Hearsay statements in affidavits are incompetent as summary judgment evidence. Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 510 n. 5 (5th Cir. 2001). These same principles apply in a federal habeas corpus proceeding. See Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997) (holding hearsay statements incompetent as summary judgment evidence). With the exceptions of the affidavits of attorneys Paul J. Goeke and Patrick Hancock, i.e., exhibit nos. 13 and 14, all of the exhibits attached to Petitioner's supplemental and amended petition herein are either unauthenticated photocopies of documents, i.e., hearsay documents, or affidavits executed by persons who admit therein that they do not possess personal knowledge of the relevant facts that those affidavits purport to present to this Court. Therefore, this Court will ignore all of the hearsay contained in the affidavits and other documents submitted as exhibits by Petitioner herein.

IV. Brady Claims

A. The Claims

In his third and nineteenth claims contained in his supplemental and amended petitions, Petitioner argues that his constitutional rights were violated by virtue of the failure of the prosecution to disclose to Petitioner's trial counsel (1) facts showing that Yvonne Martinez flunked a polygraph examination, (2) a statement given to police by Lorenzo Palomo suggesting that a person other than Petitioner fatally shot Ayari, (3) information revealing the identity of confidential informant Carlos Garza and the fact that Carlos Garza had once been investigated for perjury, (4) unspecified "facts" showing that prosecution witnesses Yvonne Martinez, Esther Garza, and Esther Menchaca gave false testimony at trial, (5) the fact that Esther Garza had been shown photo arrays other than State Exhibit no. 2, (6) the work product of Assistant District Attorney Mark Luitgen, (7) evidence of other suspects supplied by anonymous tips and Crime Stoppers callers, and (8) evidence showing that Esther Garza had been hypnotized.⁷²

72 Petitioner's Amended Petition, at pp. 35-40 121-31.

B. Procedural Default

1. Unexhausted Claims

Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the Petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). In either instance, the Petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).

On direct appeal, Petitioner presented the Texas Court of Criminal Appeals with no Brady claims or complaints about exculpatory, mitigating, or impeaching evidence allegedly withheld by the prosecution from Petitioner's trial counsel. Despite the great length of Petitioner's state habeas pleadings, at no point in his state habeas corpus proceeding did Petitioner raise a complaint about the alleged withholding of most of the evidence, information, or purported facts that form the bases for Petitioner's Brady claims herein. On the contrary, the only Brady claim Petitioner "fairly presented" to the state courts through his pleadings in his state habeas corpus proceeding consisted of a complaint that the prosecution had withheld from Petitioner's trial counsel copies of the photo arrays shown to Esther Garza other than State Exhibit no. 2, i.e., the photo arrays that did not include Petitioner's photograph.⁷³ Petitioner presented the state habeas court with no proposed findings of fact or proposed conclusions of law addressing any of the other Brady claims Petitioner has presented to this Court. Thus, Petitioner failed to "fairly present" the state habeas court with all but one of the Brady claims Petitioner has presented to this Court.

73 State Habeas Transcript, Volume I of II, at pp. 21-22 139-40.

Texas law prohibits the filing of a successive state habeas corpus application except in rare circumstances inapplicable to any of Petitioner's claims herein. See Bagwell v. Dretke, 372 F.3d 748, 756 (5th Cir. 2004) (holding that Texas law, specifically Section 5 of Article 11.071, Texas Code of Criminal Procedure, bars successive state habeas applications except where (1) the claim could not have been presented in the initial state habeas application because the factual or legal basis of the claim was unavailable at the time, and either (2) the Petitioner shows by a preponderance of the evidence that, but for the constitutional violation, he would not have been convicted, or (3) the Petitioner shows by clear and convincing evidence that, but for the constitutional violation, no rational jury would have answered in the State's favor on one or more of the capital sentencing special issues); Article 11.071, § 5(a), Tex. Code Crim. Proc. Ann. (Vernon Supp. 2004). The Fifth Circuit has consistently held that federal habeas review on unexhausted claims presented by a convicted Texas capital murder defendant is barred under the procedural default doctrine. See, e.g., Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004) (holding that violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground that bars federal habeas review of a claim); Bagwell, 372 F.3d at 755-56 (holding that a petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his state habeas corpus application); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir. 2003), cert. denied, 532 U.S. 915 (2004) (holding the Texas writ-abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims). Because Petitioner failed to exhaust available state habeas remedies on his Brady claims and because Texas law prohibits Petitioner from returning to state court to seek state habeas relief on his currently unexhausted Brady claims at this juncture, Petitioner has procedurally defaulted on those same claims. Coleman, 501 U.S. at 735 n. 1.

2. Exceptions Inapplicable

The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus Petitioner can show "cause and actual prejudice" for his default or that failure to address the merits of his procedurally defaulted claim will work a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 262 (1989). To establish "cause," a Petitioner must show either that some objective external factor impeded the defense counsel's ability to comply with the state's procedural rules or that Petitioner's trial counsel rendered ineffective assistance. Coleman, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that proof of ineffective assistance by counsel satisfies the "cause" prong of the exception to the procedural default doctrine). Petitioner has not alleged any facts showing that his failure to present his unexhausted Brady claims to the state courts during his state habeas corpus proceeding can be attributed to ineffective performance by his trial or appellate counsel.

While a showing of ineffective assistance by trial or appellate counsel can satisfy the "cause" prong of the "cause and actual prejudice" exception to the procedural default doctrine, deficient or even wholly incompetent performance by a Petitioner's state habeas corpus counsel does not satisfy the "cause" prong of the "cause and actual prejudice" exception to the doctrine of procedural default. Coleman, 501 U.S. at 755; Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002). The reason for this apparent anomaly is the fact that the Supreme Court has held there is no constitutional right to the assistance of counsel in a collateral challenge to an otherwise final state criminal conviction. Id. Thus, even if sole fault for the failure of Petitioner to fairly present his Brady claims herein during his state habeas corpus proceeding can be assigned to Petitioner's state habeas counsel, that fact would not excuse Petitioner's procedural default.

In order to satisfy the "miscarriage of justice" test, the Petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36 (1992). To satisfy the "factual innocence" standard, a Petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. See id. at 335-40 (holding that to show "actual innocence" in the context of a capital sentencing scheme, one must show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the Petitioner eligible for the death penalty under the applicable state statute and that "factual innocence" means a fair probability that, in light of all the evidence, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt). In other words, to satisfy the "factual innocence" standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. Id. The "factual innocence" test, therefore, requires the Court to give consideration to all of the evidence now available to the Court on the issue of the Petitioner's guilt or innocence. The defendant must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner has alleged no specific facts satisfying this "factual innocence" standard. Because Petitioner has failed to satisfy the "actual innocence" test, he is not entitled to relief from his procedural defaults under the fundamental miscarriage of justice exception to the procedural default doctrine.

C. No Merits on Unexhausted Brady Claims

Additionally, even if this Court were to disregard the Petitioner's procedural default on his unexhausted Brady claims and conduct a de novo review of same, Petitioner would still not be entitled to federal habeas corpus relief based on those claims.

1. The Constitutional Standard

Few constitutional principles are more firmly established by Supreme Court precedent than the rule that "`the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Banks v. Dretke, 540 U.S. 668, 691 (2004) ( quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). The Supreme Court has consistently held that the prosecution's duty to disclose evidence material to either guilt or punishment, i.e., the rule announced in Brady v. Maryland, applies even when there has been no request by the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999); United States v. Agurs, 427 U.S. 97, 107 (1976). This duty applies to impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 685 (1985).

Under clearly established Supreme Court precedent, there are three elements to a Brady claim: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be "material," i.e., prejudice must have ensued from its nondisclosure. Banks, 540 U.S. at 691. Evidence is "material" under Brady where there exists a "reasonable probability" that had the evidence been disclosed the result at trial would have been different. Banks, 540 U.S. at 698.

The Supreme Court has emphasized four aspects of the Brady materiality inquiry. First, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted in the defendant's acquittal. See United States v. Bagley, 473 U.S. at 682 (expressly adopting the "prejudice" prong of the Strickland v. Washington, 466 U.S. 668 (1984) analysis of ineffective assistance claims as the appropriate standard for determining "materiality" under Brady). Second, the materiality standard is not a sufficiency of the evidence test. Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). Third, once materiality is established, harmless error analysis has no application. Id. at 435-36. Finally, materiality must be assessed collectively, not item by item. Id. at 436-37.

2. Analysis

a. Yvonne Martinez's Polygraph Examination

It is undisputed that (1) on or about February 18, 1994, Yvonne Martinez took a polygraph examination during which she answered "no" to inquiries regarding her knowledge of the identity of Ayari's murderer and (2) the polygraph examiner concluded that Martinez's answers were so confusing that he could not determine whether she had told the truth or lied when she gave those answers.⁷⁴ Petitioner's trial counsel were aware prior to trial of the fact that Martinez had been given a polygraph examination. During a pretrial hearing held May 23, 1995, a Bexar County Deputy Sheriff informed Petitioner's trial counsel on the record that law enforcement agents had done so.⁷⁵ At trial, Martinez testified that (1) she remained fearful of Petitioner for many months after the Petitioner told her about his murder of Ayari, (2) she visited Petitioner at the jail on several occasions following Petitioner's arrest, and (3) she had not told the truth about Petitioner's involvement in Ayari's murder to law enforcement officers until shortly before Petitioner's trial began.⁷⁶ Thus, knowledge by Petitioner's trial counsel at trial that, in February 1994, Martinez had denied to law enforcement officers any knowledge of Petitioner's involvement in Ayari's murder would have been of no impeachment value. Given Martinez's candid admission during her trial testimony that she had falsely denied to law enforcement officials that she possessed any knowledge of Petitioner's crime for months after Petitioner confessed to her, there is no reasonable probability that, but for the failure of the prosecution to disclose the results of Yvonne Martinez's February 1994 polygraph examination, the outcome of either phase of Petitioner's trial would have been different. This aspect of Petitioner's Brady claim does not satisfy the materiality requirement.

74 A copy of the polygraph examiner's report is attached as Exhibit no. 1 to Petitioner's Amended Petition.

75 S.F. Trial, Volume IV, testimony of Robert Morales, at p. 100.

76 S.F. Trial, Volume XIX, testimony of Yvonne Martinez, at pp. 271-74; Volume XX, testimony of Yvonne Martinez, at pp. 19-26 31.

b. Lorenzo Palomo's Statement

During the early phase of their investigation of Ayari's murder, on January 6, 1994, law enforcement agents received a written statement from a Lorenzo Palomo speculating that an unidentified "black guy," whom Palomo stated regularly purchased cocaine from Ayari, might be responsible for Ayari's murder.⁷⁷ Petitioner alleges no facts showing there has ever been any basis in fact for Palomo's speculative assertion or otherwise establishing that Palomo possessed personal knowledge of any facts relating to Ayari's murder. Likewise, Petitioner alleges no specific facts showing that Palomo possessed any personal knowledge regarding Ayari's alleged cocaine dealing. Palomo's cryptic statement does not allege any specific facts showing that Palomo ever personally witnessed Ayari sell cocaine to the "black guy" in question or to anyone else. Petitioner has presented this Court with no fact-specific allegations establishing that Palomo could have furnished any admissible testimony at Petitioner's trial that was either exculpatory, mitigating, or impeaching in nature.

77 A copy of Palomo's statement was admitted into evidence during the evidentiary hearing in Petitioner's state habeas corpus proceeding as Defendant's Exhibit no. 15 and appears as the final document in S.F. State Habeas Hearing, Volume IX.

During Petitioner's state habeas corpus hearing, Petitioner's trial co-counsel testified that (1) Palomo's affidavit was inadmissible hearsay, (2) he was unaware of any evidence showing that a legal justification existed for Petitioner's fatal shooting of Ayari, (3) Petitioner never furnished him with any evidence indicating that Petitioner's fatal shooting of Ayari was an act of ordinary murder, as opposed to capital murder, and (4) Petitioner never furnished him with any information suggesting Petitioner's fatal shooting of Ayari was the result of "a drug deal gone bad."⁷⁸

78 S.F. State Habeas Hearing, Volume III, testimony of Pat Hancock, at pp. 78-79, 81, 89, 97, 99, 101.

Assuming that disclosure of Palomo's report would have caused Petitioner's trial counsel to investigate Palomo's allegations, Petitioner alleges no specific facts showing what potential benefit Petitioner would have obtained had his trial counsel conducted such an investigation. More simply, Petitioner fails to allege any specific facts showing that such an investigation would have resulted in the discovery of admissible exculpatory, mitigating, or impeachment evidence. Under such circumstances, Petitioner's second complaint does not satisfy the Brady materiality standard. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (holding that, without a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable by a trial counsel's failure to investigate, develop, and present same, i.e., a showing of exactly what the missing evidence or testimony would have been, a court cannot even begin to apply the Strickland analysis because it is impossible in such circumstances to determine whether the defendant was prejudiced by such a deficiency in his counsel's performance).

c. Carlos Garza's Identity Background

In his affidavit accompanying Petitioner's amended petition (exhibit 13 to Petitioner's amended petition) Petitioner's former trial counsel, attorney Pat Hancock, asserts that he was unaware at the time of Petitioner's trial that Carlos Garza had furnished information regarding Petitioner's offense to law enforcement authorities. However, during his cross-examination of Esther Garza at the pretrial hearing held May 22, 1995, attorney Hancock elicited the name of Carlos Garza not once but twice from Ms. Garza, who also testified extensively concerning everything Carlos Garza had told her and exactly what portions of that information she had forwarded to law enforcement authorities.⁷⁹ More specifically, Esther Garza testified during that same pretrial hearing that (1) on or about March 16, 1994, Carlos Garza informed her only that the names of the two people who assaulted her and Ayari were John Joe Amador and Sara Rivas, (2) Carlos Garza gave her no information regarding Petitioner's appearance, (3) she immediately telephoned Detective Morales and passed on the names of the two suspects, and (4) this information did not assist her when she subsequently identified Petitioner's photograph as that of one of her and Ayari's assailants.⁸⁰

79 S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 28-29, 48, 62-64.

80 Id., at pp. 28-29 62-64.

The record now before this Court establishes beyond any doubt that Petitioner's trial counsel had actual knowledge before Petitioner's trial of (1) Carlos Garza's identity, (2) precisely what information Carlos Garza had furnished to Esther Garza, and (3) what portions of that information Esther Garza had relayed to law enforcement authorities. Thus, the record from Petitioner's May 22, 1995 hearing refutes Petitioner's contention that the prosecution withheld Carlos Garza's identity from Petitioner's trial counsel.

Additionally, Carlos Garza never testified during either phase of Petitioner's trial. Therefore, even if Petitioner's trial counsel had obtained information that might have impeached Carlos Garza's credibility, there is no reasonable probability that such evidence would have had an impact on the outcome of either phase of Petitioner's capital murder trial.

d. Unspecified Facts Showing Perjury

Petitioner argues in conclusory fashion that Yvonne Martinez, Esther Garza, and Esther Menchaca all gave perjured testimony during Petitioner's trial.⁸¹ However, Petitioner presents this Court with no fact-specific allegations showing that any identified portion of the trial testimony of these three witnesses was demonstrably false. Moreover, Petitioner wholly fails to identify any admissible evidence that existed at the time of Petitioner's trial showing the trial testimony of any of these three witnesses was false. Nor does Petitioner allege any specific facts showing that law enforcement agents were in possession of any such evidence.

81 Petitioner's Amended Petition, at pp. 121-22.

Instead, Petitioner relies exclusively on the affidavits of his court-appointed investigators reflecting statements made to those investigators by others. As this Court explained above, the affidavits in question (attached as Exhibit nos. 2, 3, 7, 10, 12, 16 to Petitioner's amended petition) consist of little more than rank hearsay statements attributed to other persons or hearsay-within-hearsay statements attributed to persons who allegedly overheard what a third person said at some prior point in time. Because those affidavits are not based on the investigators' personal knowledge, they have no evidentiary value in a summary judgment context. See Goodwin v. Johnson, 132 F.3d at 186 (hearsay inadmissible to oppose a respondent's motion for summary judgment in a federal habeas corpus proceeding); Cormier v. Pennzoil, 969 F.2d 1559, 1561 (5th Cir. 1992) (holding that a court may not consider hearsay contained in an affidavit when ruling on a summary judgment motion).

During the three-day pretrial hearing held on Petitioner's motions to suppress, Petitioner's trial counsel thoroughly cross-examined Esther Garza, Esther Menchaca, and several law enforcement agents who investigated Petitioner's offense. Perhaps because of the absence of a jury, during that hearing, the state trial judge permitted Petitioner's trial counsel to delve into a great many subjects that might have been inappropriate at trial. Thus, Petitioner obtained extensive pretrial discovery into the prosecution's case. Furthermore, one of Petitioner's prosecutors testified during Petitioner's state habeas corpus hearing that (1) the prosecution afforded Petitioner's trial counsel unfettered access to the prosecution's file in Petitioner's case, (2) to the best of his knowledge, all exculpatory and mitigating evidence in the possession of the prosecution was contained in the file to which Petitioner's trial counsel had such access, and (3) he was unaware of any exculpatory or mitigating evidence that had come to light since Petitioner's trial.⁸²

82 S.F. State Habeas Hearing, Volume II, testimony of Mike Cohen, at pp. 65-70.

Petitioner has failed to identify any evidence available at the time of Petitioner's trial of which his counsel was unaware that established that any of the trial testimony of Esther Garza, Esther Menchaca, or Yvonne Martinez was false. Under such circumstances, Petitioner's conclusory assertions that these prosecution witnesses gave false testimony does not warrant federal habeas corpus relief. See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir.), cert. denied, 513 U.S. 1054 (1994) (holding that a Petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).

e. The Prosecution's Work Product

The affidavits of attorneys Hancock and Goeke attached as exhibits 13 and 14 to Petitioner's amended petition complain that certain handwritten notes and other documents apparently generated by former Assistant Bexar County District Attorney Mark Luitgen, made available for the first time to Petitioner's federal habeas counsel, would have been helpful to Petitioner's trial counsel had they been disclosed prior to trial. While this Court has no doubt that advance disclosure to Petitioner's trial counsel of the prosecution's intended trial strategy would likely have assisted Petitioner's trial counsel during their own trial preparations, that fact, standing alone, is insufficient to bring Luitgen's handwritten notes within the Brady claim requirements, which focus on undisclosed evidence that is either exculpatory, mitigating, or impeaching in nature. Brady does not extend to all information a defendant might deem helpful during pretrial preparations. See United States v. Bagley, 473 U.S. 667, 675 n. 7 (1985) (recognizing that a rule that a prosecutor commits error by any failure to disclose evidence to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor).

Petitioner alleges no facts showing that Luitgen ever possessed personal knowledge regarding any matter relevant to the issues at Petitioner's trial. On the contrary, as described in the affidavits of attorneys Hancock and Goeke, the bulk of Luitgen's handwritten notes reflect his subjective thought processes, as a supervising prosecutor, on such matters as (1) areas in which additional factual investigation should be pursued, (2) potential legal and evidentiary weaknesses in the prosecution's theory of the case, (3) potential questions to be asked prosecution witnesses in advance of trial or at trial, and (4) potential challenges the defense might raise to particular aspects of the prosecution's evidence. Petitioner offers no fact-specific allegations showing how any of the foregoing matters fall into the categories of exculpatory, mitigating, or impeaching evidence. Documents reflecting a prosecutor's subjective thought processes about trial strategy, as opposed to records reflecting factual information conveyed directly to the prosecution by witnesses, ordinarily do not fall within the parameters of the Brady requirement because they do not constitute admissible evidence. Instead, such documents fall within the traditional notions of what the Supreme Court recognized in Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), as an attorney's "work product." The "work product doctrine," which shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case, plays a vital role in the criminal justice system. United States v. Nobles, 422 U.S. 225, 238 (1975).

Petitioner does not allege any facts showing that Luitgen personally interviewed any prosecution or defense witnesses prior to or during trial. Likewise, Petitioner alleges no specific facts showing that Luitgen's subjective thought processes, as recorded in his handwritten notes, reflect any investigation by Luitgen beyond his review of the witness statements and other reports contained in the prosecution's case file to which Petitioner's trial counsel had full access before trial. More importantly, Petitioner has alleged no specific facts identifying any exculpatory or mitigating factual information contained in Luitgen's notes that was unavailable to Petitioner's trial counsel through a reasonably diligent examination of the case file the prosecution had made available to Petitioner's trial counsel.⁸³

83 As explained above, attorney Hancock's complaints about the non-disclosure of information regarding the identity and background of Carlos Garza do not satisfy any of the prongs of a Brady analysis.

Petitioner also alleges no specific facts showing that any of Luitgen's handwritten notes purporting to paraphrase or quote from written witness statements or summaries of witness interviews were ever adopted by any of those witnesses as their own. There is no allegation before this Court that Luitgen's handwritten notes constituted de facto witness statements. Compare Goldberg v. United States, 425 U.S. 94, 108 (1976) (holding the work product doctrine did not exempt from disclosure under the Jencks Act witness statements produced by a prosecuting attorney after interviewing a witness).

Petitioner has failed to allege any specific facts showing that Luitgen's handwritten notes contained any exculpatory, mitigating, or impeaching evidence. The rule announced in Brady applies to evidence that is exculpatory, mitigating, or impeaching in character, not to all information known to the prosecution. Petitioner has failed to allege any specific facts showing a reasonable probability that, but for the failure of the prosecution to disclose Luitgen's handwritten notes, the outcome of either phase of Petitioner's trial would have been different.

f. Other Suspects

Petitioner presented the state habeas court with numerous documents discovered in the files of law enforcement agencies reflecting anonymous tips and citizen telephone calls responding to the airing of the composite sketch Esther Garza created on January 10, 1994.⁸⁴ However, Petitioner offers this Court absolutely no fact-specific allegations establishing that evidence has ever existed showing that any person identified in any of the tips or calls reflected in these voluminous documents, other than Petitioner, fatally shot Ayari. Likewise, Petitioner has identified no specific facts suggesting that any other exculpatory, mitigating, or impeaching evidence can be found among the reams of documents in question. Finally, Petitioner has alleged no specific facts showing that disclosure of the Bexar County Sheriff Department's entire investigative file would have necessarily led to the discovery of admissible exculpatory, mitigating, or impeaching evidence.

84 These voluminous documents can be found among the state court records relating to Petitioner's state habeas corpus proceeding at S.F. State Habeas Hearing, Volumes VI, VII, VIII, IX.

It is a simple reality that, in the wake of a well-publicized criminal offense, honest citizens routinely offer law enforcement agencies information consisting of little more than hearsay, conjecture, and rank speculation. Such information does not, by virtue of the fact that it purports to identify potential perpetrators other than the person ultimately convicted of that offense, constitute exculpatory, mitigating, or impeaching evidence within the meaning of Brady and its progeny. There must be a reasonable probability that, but for the failure of prosecutors to disclose identified information, the outcome of the defendant's trial would have been different. Banks, 540 U.S. at 698. Petitioner's conclusory assertions that the entire contents of the Bexar County Sheriff's department's investigative file regarding Ayari's murder constituted Brady material does not satisfy the Brady materiality requirement.

g. Esther Garza's Hypnosis Session

During the May 22, 1995 pretrial hearing on Petitioner's motions to suppress, Petitioner's trial counsel cross-examined Esther Garza extensively regarding the hypnosis session she underwent on February 22, 1994.⁸⁵ Petitioner alleges no specific facts showing that his trial counsel was unable, despite the exercise of due diligence, to review the videotape recording of that session, which prosecutors made available to said counsel during that hearing. Petitioner offers this Court no fact-specific allegations showing that his trial counsel were unaware of any of the events that transpired during Garza's recorded hypnosis session. Under such circumstances, Petitioner has failed to allege any specific facts showing that the prosecution withheld any identified exculpatory, mitigating, or impeaching information regarding that subject. Likewise, Petitioner has failed to allege any specific facts showing that, but for the non-disclosure of any identifiable information regarding Garza's hypnosis session, the outcome of either phase of Petitioner's trial would have been different.

85 S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 69-73.

D. AEDPA Review of Petitioner's Lone, Exhausted, Brady Claim

1. State Court Disposition

As explained above, Petitioner did "fairly present" the state habeas court with his Brady claim regarding information relating to photo arrays shown to Esther Garza prior to March 30, 1994.⁸⁶ The Texas Court of Criminal Appeals expressly adopted the state habeas trial court's findings of fact and conclusions of law, which urged rejection of this claim on the merits, i.e., because Petitioner had failed to present the state habeas trial court with any evidence showing that the prosecution withheld from Petitioner's trial counsel any evidence that could have been employed to impeach Esther Garza's trial testimony identifying Petitioner as her and Ayari's assailant.⁸⁷

86 State Habeas Transcript, Volume I of II, at pp. 21-22 139-40.

87 State Habeas Transcript, Volume II of II, at pp. 296-99.

During Petitioner's state habeas corpus proceeding, a Bexar County Deputy Sheriff testified without contradiction that (1) prior to March 30, 1994, when she identified Petitioner's photograph in the photo array admitted into evidence at trial as State's Exhibit no. 2, Esther Garza had been shown six other photo arrays, three of which were exclusively of male suspects and three of which were exclusively female suspects, (2) the photographs of Petitioner and Sara Rivas were not included in any of these arrays, and (3) while she recognized some of these persons, Esther Garza never identified any of the persons in these arrays as having been in Ayari's taxicab at the time of Ayari's murder.⁸⁸ It is undisputed that the prosecution did not turn over to Petitioner's trial counsel any of these six photo arrays because the same officer testified at the same hearing that no information relating to these arrays was relayed to the prosecution.⁸⁹

88 S.F. State Habeas Hearing, Volume III, testimony of Robert Morales, at pp. 13, 17-18, 21-24, 115.

89 Id., at p. 29.

2. AEDPA Analysis

The fact that Esther Garza failed to identify persons other than Petitioner as her assailant does not constitute either exculpatory or mitigating evidence. On the contrary, it tends, at least inferentially, to bolster the validity of her March 30, 1994 identification of Petitioner as one of the assailants.

Esther Garza testified consistently at both the pretrial hearing on Petitioner's motions to suppress and at Petitioner's trial that she could not specifically recall whether Petitioner's photograph had appeared in any of the photo arrays of male suspects she was shown prior to March 30, 1994, i.e., the date she selected Petitioner's photograph from State Exhibit no. 2.⁹⁰ At trial, a Bexar County law enforcement officer testified, without contradiction, that none of the photo arrays shown to Esther Garza prior to March 30, 1994 included Petitioner's photograph.⁹¹ Examination of the photo arrays in question corroborates the testimony of these prosecution witnesses. Disclosure of the six photo arrays in question, therefore, would have produced no evidence possessing any impeachment value at Petitioner's trial. Petitioner's complaint about the prosecution's nondisclosure of the six photo arrays in question does not satisfy the materiality prong of Brady. The Texas Court of Criminal Appeals' rejection on the merits of this aspect of Petitioner's Brady claim was neither contrary to, nor an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor the product of an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.

90 S.F. Trial, Volume III, testimony of Esther Imelda Garza, at p. 73; Volume XVIII, testimony of Esther Garza, at pp. 221 224-26.

91 S.F. Trial, Volume XIX, testimony of Sal Marin, at p. 155.

E. Conclusions

Petitioner procedurally defaulted on all of his unexhausted Brady claims. Each of Petitioner's unexhausted Brady claims is legally frivolous. The state habeas court's rejection on the merits of Petitioner's lone exhausted Brady claim was a clearly reasonable application of the well-settled materiality principles announced in Brady.

V. Challenge to Prosecutorial Discretion

A. The Claim

In his twenty-third claim, Petitioner argues that the Texas death penalty scheme grants prosecutors "unfettered discretion" regarding whether to seek the death penalty in any particular capital murder case and that the exercise of such discretion violates the Eighth Amendment.⁹² Petitioner fairly presented the substance of this claim to the Texas Court of Criminal Appeals in the course of his state habeas corpus proceeding.⁹³ That court denied relief on the merits in the course of Petitioner's state habeas corpus proceeding.⁹⁴

92 Petitioner's Amended Petition, at pp. 131-34.

93 State Habeas Transcript, Volume I of II, at pp. 55 170.

94 State Habeas Transcript, Volume II of II, at p. 336.

B. Teague Foreclosure

Respondent correctly points out that the legal argument Petitioner presents in this claim represents a novel interpretation of the Eighth Amendment that this Court is foreclosed from applying in the context of this federal habeas corpus proceeding by virtue of the non-retroactivity principle announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 310 (1989). Under that holding, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90 (1994). A "new rule" for Teague purposes is one that was not dictated by precedent existing at the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156 (1997) (holding that a "new rule" either "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final"). Under this doctrine, unless reasonable jurists hearing the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. 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. See Caspari, 510 U.S. at 390.

The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) "watershed" rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell, 521 U.S. at 157. 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, 510 U.S. at 390. Petitioner's conviction became final for Teague purposes on July 23, 1997, i.e., 91 days after the date the Texas Court of Criminal Appeals issued its opinion affirming Petitioner's conviction on direct appeal and the date Petitioner's deadline for filing a petition for writ of certiorari with the United States Supreme Court expired. Beard v. Banks, ___ U.S. ___, ___, 124 S. Ct. 2504, 2510, 159 L. Ed.2d 494 (2004) (recognizing that 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); 21 U.S.C. § 2101(d) (the deadline for filing a certiorari petition from a state criminal conviction shall be established by Supreme Court rule); Sup. Ct. Rule 13.1.

No Supreme Court precedent in existence on July 23, 1997 mandated the result Petitioner urges in his twenty-third claim herein. On the contrary, shortly before Petitioner's conviction became final for Teague purposes, the Supreme Court reaffirmed in United States v. Armstrong, 517 U.S. 456, 464-66 (1996), that (1) so long as the prosecutor has probable cause to believe the accused committed an offense defined by statute, decisions regarding whether to prosecute and, if so, what charge to file or bring before a grand jury ordinarily rest within the prosecutor's discretion and (2) a complaint that the prosecution has abused that discretion, by basing discretionary decisions on improper considerations or unjustifiable standards, must be supported by a showing that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. Petitioner presents this Court with no fact-specific allegations of discriminatory impact or motive in his prosecution.

On the contrary, Petitioner's claim is nothing less than an argument that the exercise of any discretion by prosecutors regarding whether to seek the death penalty in a capital case is inherently discriminatory. Petitioner premises what is clearly a proposed new rule of constitutional criminal procedure on an innovative construction of the Supreme Court's holding in Bush v. Gore, 531 U.S. 98 (2000), which was decided on December 12, 2000, long after Petitioner's conviction became final for Teague purposes. Thus, application of the equal protection principles of Bush v. Gore to Petitioner's state criminal conviction is foreclosed by Teague.

The new rule advocated by Petitioner in his twenty-third claim for relief herein falls within neither of the two recognized exceptions to the Teague doctrine. Therefore, Petitioner's twenty-third claim herein is barred by the Teague non-retroactivity doctrine.

C. AEDPA Review

Furthermore, Petitioner alleged no specific facts in his state habeas corpus proceeding showing that the discretionary decision by Bexar County prosecutors to seek the death penalty in his capital murder case either had a discriminatory effect or was motivated by a discriminatory purpose. At the time Petitioner's sentence became final, clearly established Supreme Court precedent required a criminal defendant complaining of an allegedly discriminatory exercise of discretion by a prosecutor to support such claims with a showing that the prosecution has treated similarly situated persons dissimilarly. Armstrong, 517 U.S. at 466-66.

Petitioner presented the state habeas court with absolutely no fact-specific allegations showing that he had been treated dissimilarly from other, similarly situated capital murder defendants. Absent a showing of invidious discrimination and discriminatory purpose, neither the Supreme Court's opinion in Bush v. Gore nor any other Supreme Court precedent deprives a prosecutor of the traditional discretion to determine (1) whether to prosecute a particular accused for a particular offense when probable cause to believe the accused has committed that offense exists and (2) what sentence authorized by law should be sought for a defendant convicted of such an offense.

As such, the Texas Court of Criminal Appeals' rejection on the merits of Petitioner's twenty-third claim herein was neither contrary to, nor an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor the product of an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.

VI. Challenges to 12:10 Rule Article 37.071

A. The Claim

In his twenty-fourth claim herein, Petitioner argues that his due process and Eighth Amendment rights were violated by virtue of the failure of the state trial court's punishment phase jury instructions to inform the jury of the effect of a single, hold-out juror.⁹⁵ The Texas Court of Criminal Appeals rejected this same claim on the merits in the course of Petitioner's state habeas corpus proceeding.⁹⁶

95 Petitioner's Amended Petition, at pp. 134-39.

96 State Habeas Transcript, Volume II of II, at pp. 336-37.

B. Teague Foreclosure

Respondent correctly points out that this claim is also foreclosed by the Teague non-retroactivity doctrine. The Fifth Circuit has repeatedly held that claims identical to Petitioner's twenty-fourth claim herein are foreclosed by Teague. See, e.g., Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000); Davis v. Scott, 51 F.3d 457, 466-67 (5th Cir. 1995), cert. denied, 516 U.S. 992 (1995).

C. AEDPA Review

The Supreme Court rejected the arguments underlying Petitioner's twenty-fourth claim herein when it held in Jones v. United States, 527 U.S. 373 (1999), that the Eighth Amendment does not require that a jury be instructed on 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. Id. at 382. The Supreme Court has never held that a jury instruction of the type requested by Petitioner is constitutionally mandated.

Petitioner complains that the state trial court's failure to advise the Petitioner's jury regarding the effect of a hung jury violated the principles announced by the Supreme Court in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), because the state trial court, pursuant to a statutory prohibition, failed to inform the jury at the punishment phase of trial as to the effect of a single "no" vote on any of the Texas capital sentencing special issues. Neither of these Supreme Court opinions supports the result urged by Petitioner.

In Mills, the Supreme Court remanded a death sentence for a new sentencing proceeding where the verdict form and the trial judge's instructions could have been construed by the jury as preventing it from considering and weighing mitigating circumstances. Mills, 486 U.S. at 384. In McKoy, the Supreme Court, relying on its holding in Mills, struck down a capital sentencing scheme in a "weighing jurisdiction." Petitioner's jury was never faced with the type of weighing responsibility involved in McKoy. Texas is not a weighing jurisdiction for Eighth Amendment purposes. See Hughes v. Johnson, 191 F.3d 607, 623 (5th Cir. 1999), cert. denied, 528 U.S. 1145 (2000) (holding that Texas is not a weighing state); and James v. Collins, 987 F.2d 1116, 1120 (5th Cir.), cert. denied, 509 U.S. 947 (1993) (recognizing that, unlike a weighing jurisdiction, Texas sentencing juries are not called upon to weigh statutory aggravating factors against mitigating evidence). Thus, the holding in McKoy is inapplicable to the punishment phase of Petitioner's capital murder trial.

Essentially, Petitioner's twenty-fourth claim complains that individual members of his jury were not furnished with a detailed explanation of exactly what constituted a "hung jury" at the punishment phase of a Texas capital murder trial. However, the Fifth Circuit has expressly rejected this same argument, noting that the law in Texas, a non-weighing jurisdiction, is completely different from that in Mills:

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

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

Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995).

In order to successfully challenge a state court's jury instructions at the punishment phase of a capital murder trial, a federal habeas petitioner must show more than that a capital sentencing scheme might have resulted in the jury being prevented from considering mitigating evidence; the petitioner must show a reasonable likelihood that it actually occurred. Boyde v. California, 494 U.S. 370, 380 (1990). In this case, Petitioner's argument that the jurors at his Texas capital murder trial might have concluded from the jury instructions at the punishment phase of trial that they were precluded from giving effect to their own opinions as to whether Petitioner merited the death penalty asserts a construction of the punishment phase jury instructions at Petitioner's trial that is neither reasonable nor likely to have actually occurred. See Johnson v. Texas, 509 U.S. 350, 368 (1993) ("In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a `commonsense understanding of the instructions in the light of all that has taken place at trial.'") (quoting Boyde v. California, 494 U.S. at 381).

Furthermore, the Fifth Circuit has rejected the exact same Fourteenth Amendment and Eighth Amendment claims urged by Petitioner herein. See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas ten:twelve rule in the course of affirming this Court's rejection of claims identical to those raised by Petitioner herein); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir.), cert. denied, 531 U.S. 849 (2000) (holding Mills inapplicable to a Texas capital sentencing proceeding); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir.), cert. denied, 519 U.S. 854 (1996). There is no "clearly established" constitutional right to a jury instruction advising a capital sentencing jury of the effect of a hung jury. See United States v. Jones, 132 F.3d 232, 245 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999) (holding that no constitutional violation results from the refusal of a district court to inform the jury of the consequences of failing to reach a unanimous verdict).

Under such circumstances, the Texas Court of Criminal Appeals' rejection on the merits of Petitioner's twenty-fourth claim herein was neither contrary to, nor an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor the product of an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.

VII. Knowing Use of Perjured Testimony Claim

A. The Claim

In his nineteenth claim herein, Petitioner argues, in part, that the prosecution violated his federal constitutional rights by knowingly presenting false testimony from certain witnesses at his trial.⁹⁷

97 Petitioner's Amended Petition, at pp. 119-22.

B. Procedural Default on Unexhausted Claim

Respondent correctly points out that Petitioner failed to "fairly present" his complaints of alleged perjured testimony to the state habeas court. This Court's independent review of the pleadings in Petitioner's state habeas corpus proceeding reveals no language in Petitioner's state habeas corpus pleadings that could have been rationally construed as alerting the state habeas court that Petitioner was presenting such a claim in that proceeding. Petitioner presented no testimony or other evidence in support of this claim to the state habeas court. Nor did Petitioner request any findings of fact or conclusions of law regarding same. Petitioner offers no explanation for his failure to present the substance of this claim to the state habeas court. Accordingly, Petitioner has procedurally defaulted on this unexhausted claim. Coleman, 501 U.S. at 735 n. 1.

C. No Merit

A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54 (1972); Napue v. Illinois, 360 U.S. 264, 269-70 (1959). To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing that (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing that it was false. Giglio, 405 U.S. at 153-54. Petitioner has alleged no specific facts supporting his conclusory assertion that prosecutors were aware that prosecution witnesses Esther Garza, Yvonne Martinez, and Esther Menchaca gave false testimony at Petitioner's trial. In fact, Petitioner fails to identity with specificity exactly what portions of the trial testimony of either of these witnesses he claims the prosecutors knew to be false. Thus, this claim is without merit.

VIII. Non-retroactivity of Ring v. Arizona

In his sixteenth claim herein, Petitioner argues, in part, that the Supreme Court's opinion in Ring v. Arizona, 536 U.S. 584 (2002), requires that, in every capital case where a death sentence is sought, a capital sentencing jury must determine that a criminal defendant is not mentally retarded.⁹⁸ However, in Schriro v. Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2522-26, 159 L. Ed.2d 442 (2004), the Supreme Court held that (1) the rule announced in Ring was procedural, rather than substantive in nature, (2) the holding in Ring did not fall within the exception to the Teague non-retroactivity doctrine for "watershed rules of criminal procedure" implicating fundamental fairness and the accuracy of the criminal proceeding, and (3) Ring announced a new procedural rule that does not apply retroactively to cases already final on direct appeal. Therefore, insofar as Petitioner argues that the Supreme Court's holding in Ring constitutes an independent basis for granting federal habeas corpus relief in this cause, Teague bars this Court from addressing that claim in the context of this federal habeas corpus proceeding.

98 Petitioner's Amended Petition, at pp. 113-17.

Moreover, Petitioner failed to fairly present his Ring argument to the state courts, either on direct appeal or in the course of his state habeas corpus proceeding. Under the AEDPA, this Court is foreclosed from granting federal habeas relief on an unexhausted claim unless (1) the state expressly waives the exhaustion ( 28 U.S.C. § 2254(b)(3)), (2) there is an absence of available state corrective processes (§ 2254(b)(1)(B)(i)), or (3) circumstances exist that render such state processes ineffective to protect the petitioner's federal constitutional rights (§ 2254(b)(1)(B)(ii)).

Respondent has not expressly waived the exhaustion requirement with regard to Petitioner's Ring claim. Petitioner never requested that this Court hold this cause in abeyance so that Petitioner could return to state court and exhaust available state remedies on this claim, as permitted by the Texas Court of Criminal Appeals' opinion in Ex parte Soffar, 143 S.W.3d 804 (Tex.Crim.App. 2004). In pertinent part, section 5 of article 11.071 of the Texas Code of Criminal Procedure authorizes the filing of a successive application for state habeas relief when a new claim is premised upon a legal theory that was "unavailable" at the time a previous state habeas application was filed. Petitioner's initial state habeas application was rejected by the Texas Court of Criminal Appeals on September 12, 2001. The United States Supreme Court did not decide Ring, which clearly recognized a "new rule," until the following year. Thus, Petitioner's Ring claim herein was unavailable at the time Petitioner filed and prosecuted his prior state habeas corpus proceeding. Therefore, state habeas remedies apparently remain available to Petitioner should he wish to present his unexhausted Ring claim to an appropriate state habeas court. Petitioner has alleged no facts showing that there is any inherent deficiency in state habeas procedure that prevent him from fully presenting and litigating his novel Ring claim at this juncture. Accordingly, this Court lacks the statutory authority under the AEDPA to grant federal habeas relief on this unexhausted claim.

IX. Unexhausted Atkins Claim

Likewise, in his sixteenth claim herein, Petitioner argues that he is exempt from the death penalty under the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304 (2002), because he is mentally retarded.⁹⁹ As with his unexhausted Ring claim, Petitioner has never presented this contention to the state courts, Respondent has not expressly waived the exhaustion requirement, and state habeas remedies appear to be available for the purpose of litigating this claim (which like Ring, arises from a Supreme Court decision handed down after the disposition of Petitioner's first state habeas corpus proceeding). Thus, the AEDPA precludes this Court from granting federal habeas relief on this unexhausted claim. 28 U.S.C. § 2254(b)(1).

99 Petitioner's Amended Petition, at pp. 100-13.

Because Atkins recognized a wholly new substantive federal constitutional right exempting a class of persons from capital punishment, the Teague barrier to federal habeas review of this claim is inapplicable. New substantive rules generally apply retroactively. Schriro v. Summerlin, ___ U.S. at ___, 124 S. Ct. at 2522-23 (explaining that new substantive rules apply retroactively because, by their very nature, they either place certain conduct beyond the State's power to punish or proscribe the State from imposing a particular form of punishment).

Petitioner has deliberately chosen not to request that this Court hold this cause in abeyance so that he could return to state court and pursue available state habeas corpus remedies on his unexhausted Atkins claim. While this Court may not grant federal habeas corpus relief based on Petitioner's unexhausted Atkins claim, the AEDPA authorizes this Court to deny federal habeas relief on an unexhausted claim on the merits. 28 U.S.C. § 2254(b)(2). When a claim has not been adjudicated on the merits in state court, the AEDPA's deferential standard of review is inapplicable. Solis v. Cockrell, 342 F.3d 392, 394 n. 2 (5th Cir. 2003), cert. denied, 540 U.S. 1151 (2004). Thus, this Court must examine Petitioner's unexhausted Atkins claim under a de novo standard.

The Supreme Court's Eighth Amendment analysis in Atkins focused initially on current trends among state legislatures regarding the imposition of the death sentence on mentally retarded murderers. See Atkins, 536 U.S. at 311-17 (holding that the Eighth Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society and that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by state legislatures). The Court then shifted its focus to the dual penological purposes served by the death penalty: retribution and deterrence of capital crimes by prospective offenders. Id. at 318-21. With regard to retribution, the Court held that an exclusion from the death penalty for mentally retarded murderers was warranted by virtue of "the lesser culpability of the mentally retarded offender," which it analogized to "the culpability of the average murderer." Id. at 319. The Court then held, in pertinent part, as follows:

With respect to deterrence — the interest in preventing capital crimes by prospective offenders — "it seems likely that `capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.'" Exempting the mentally retarded from that punishment will not affect the "cold calculus that precedes the decision" of other potential murderers. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable — for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.

Id. at 319-20 (citations omitted). The Supreme Court ultimately concluded that execution of mentally retarded criminals would not measurably advance the deterrent or retributive purposes underlying the death penalty and, therefore, the Eighth Amendment prohibits such punishment. Id. at 321.

Petitioner argues that he is mentally retarded and, pursuant to Atkins, exempt from the death penalty. However, Petitioner has furnished this Court with no proper summary judgment evidence supporting this contention. The unauthenticated photocopies of documents Petitioner has attached to his pleadings herein do not satisfy the requirements for summary judgment evidence. Nor do the hearsay affidavits Petitioner has presented this Court.

Petitioner has failed to allege any specific facts, much less furnish any evidence, establishing that he is, in fact, "mentally retarded" within the meaning of that term as utilized in Atkins. The Supreme Court made clear in Atkins that such a showing requires evidence that a convicted capital murder defendant suffered from significant limitations on his ability to engage in adaptive skills prior to age 18.¹⁰⁰ Petitioner's carefully crafted, vague confession and the corroborating evidence introduced at his trial demonstrate a degree of cold, calculating, behavior on his part that lies "at the opposite end of the spectrum from the behavior of mentally retarded offenders." Id. at 319-20. While Petitioner has alleged in conclusory terms that he is mentally retarded, he has wholly failed to allege any specific facts, much less furnish this Court with any proper summary judgment evidence, showing that he either tested in the mentally retarded range or displayed significant limitations on his ability to engage in adaptive skills prior to age 18.

100 The Supreme Court's opinion in Atkins specifically identified two clinical definitions of mental retardation:

The American Association on Mental Retardation (AAMR) defines mental retardation as follows: " Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18."

The American Psychiatric Association's definition is similar: "The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system."

Atkins, 536 U.S. at 308 n. 3 (citations omitted).

Finally, the state court records currently before this Court refute Petitioner's claim that he is mentally retarded. Prior to trial, Petitioner was examined by Dr. John C. Sparks, who reported to the state trial court that Petitioner was not mentally retarded.¹⁰¹ Furthermore, at trial, Petitioner presented expert testimony from a psychological associate who (1) had given Petitioner a full clinical assessment battery, IQ test, and academic skills tests, (2) had interviewed Petitioner's family, (3) had interviewed Petitioner, and (4) concluded that Petitioner, although obviously prone to acts of violence, was neither mentally ill, mentally retarded, nor developmentally disabled.¹⁰² Under such circumstances, Petitioner's unexhausted Atkins claim must be denied on the merits.

101 Trial Transcript, at pp. 147-50.

102 S.F. Trial, Volume XXII, testimony of Gordon Potter, at pp. 66-67.

X. Prosecutorial Misconduct

A. The Claims

In his sixth, ninth, and thirteenth claims herein, Petitioner argues that the prosecution engaged in misconduct at trial when prosecutors (1) repeatedly directed improper questions to a prosecution witness regarding Petitioner's unsuccessful attempt to lead law enforcement officers to the murder weapon on April 14, 1994, (2) used leading and objectionable questions to suggest to the jury the contents of Sara Rivas' written statement implicating Petitioner in Ayari's murder, and (3) offered "victim impact" evidence during the guilt-innocence phase of Petitioner's trial.¹⁰³ The Texas Court of Criminal Appeals rejected these claims in the course of Petitioner's state habeas corpus proceeding.¹⁰⁴

103 Petitioner's Amended Petition, at pp. 51-63, 73-75, 87-90.

104 State Habeas Transcript, Volume II of II, at pp. 305-16 323-25.

B. Procedural Default

The Texas Court of Criminal Appeals held, in pertinent part, in the course of Petitioner's state habeas corpus proceeding that, by failing to timely object to these alleged instances of prosecutorial misconduct on that ground, Petitioner procedurally defaulted on them under applicable state law principles.¹⁰⁵ A finding by a Texas appellate court that a criminal defendant failed to comply with the Texas contemporaneous objection rule constitutes an independent and adequate basis for a federal habeas court's refusal to address the merits of a claim for federal habeas corpus relief. See Rowell v. Dretke, 398 F.3d 370, 374-75 (5th Cir. 2005) (holding that a defendant's failure to timely object to alleged errors in a jury charge determined by a Texas appellate court to be a violation of the Texas contemporaneous objection rule barred federal habeas relief of the alleged erroneous jury charge under the procedural default doctrine); Cotton, 343 F.3d at 754 (holding violation of the Texas contemporaneous objection rule is an adequate and independent barrier to federal habeas review); Dowthitt, 230 F.3d at 752 (holding the Texas contemporaneous objection rule is strictly or regularly and evenhandedly applied in the vast majority of cases and, therefore, an adequate state bar). As explained hereinafter, none of Petitioner's assertions of ineffective assistance by his trial or appellate counsel satisfy the "cause" prong of the "cause and actual prejudice" exception to the procedural default doctrine. Likewise, Petitioner has failed to allege any specific facts sufficient to satisfy the "fundamental miscarriage of justice" exception to the procedural default doctrine. Accordingly, Petitioner has procedurally defaulted on his sixth, ninth, and thirteenth claims herein.

105 State Habeas Transcript, Volume II of II, at pp. 306, 316, 325.

C. No Merits

Furthermore, there was nothing objectively unreasonable with the state habeas court's rejection on the merits of these same claims.

1. Allegedly Inappropriate Examination of Deputy Marin

At the pretrial hearing held on the motions to suppress Petitioner's oral statements, the state trial court ruled that the prosecution could introduce evidence showing that, on April 14, 1994, i.e., the day after Petitioner returned to San Antonio and gave Deputy Marin a written statement concerning Ayari's murder, Petitioner informed law enforcement officers that .380 and .25 caliber handguns had been used to shoot Ayari and Esther Garza but could not introduce the contents of any other oral statements made by Petitioner on that date.¹⁰⁶ At trial, Bexar County Sheriff's Deputy Sal Marin testified, in pertinent part, that (1) Petitioner initiated contact with him on that date, (2) thereafter, he, Petitioner, and another officer drove to an area near where the abandoned taxicab had been found, (3) during their drive to that location, Petitioner identified the calibers of the weapons used during the shootings as .380 and .25, (4) after arriving at the location, he and Petitioner exited their vehicle and walked for some distance along a highway guard rail, (5) no weapons were found, and (6) thereafter he had no contact with Petitioner.¹⁰⁷ At three points during this portion of Deputy Marin's testimony, the trial court sustained Petitioner's trial counsel's objections to questions or testimony regarding hearsay statements made by Petitioner that were unrelated to the caliber of the weapons.¹⁰⁸

106 S.F. Trial, Volume V, at pp. 153-54.

107 S.F. Trial, Volume XIX, testimony of Sal Marin, at pp. 170-78.

108 Id., at pp. 173, 175, 178.

Because the state habeas court made no findings or conclusions regarding the merits of this claim of prosecutorial misconduct, this Court's review of this claim is de novo. Solis v. Cockrell, 342 F.3d at 394 n. 2 (holding that, where there has been no ruling on the merits by a state court, the AEDPA's standard of review is inapplicable). Petitioner argues that the prosecution's improper questioning of Deputy Marin violated Petitioner's Fifth Amendment rights because the jury was made aware, inferentially, of the fact that Petitioner had led officers to an area where Petitioner claimed the weapons could be found, thereby violating the trial court's pretrial ruling regarding the admissibility of Petitioner's oral statements under applicable state law.

Insofar as Petitioner complains about an alleged violation of state statutes regarding the admissibility of oral statements made by a person in custody, that complaint does not furnish a basis for federal habeas corpus relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This Court does not review a state prisoner's federal habeas corpus petition to determine whether the state appellate courts correctly construed and applied state law; federal habeas corpus relief does not lie for errors of state law. Id.

When a prosecutor attempts to violate a defendant's constitutional rights by asking an improper question in the jury's presence, federal habeas relief will issue only if the prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). To constitute a due process violation, the prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." Id. When a defendant complains that a prosecutor's questions rendered his trial fundamentally unfair, it is important to place the remark in proper context. Id. at 765-66.

Contrary to the implications underlying Petitioner's argument, the state trial court's pretrial ruling did not prohibit the prosecution from offering testimony at trial regarding either (1) Petitioner's admission of personal knowledge regarding the caliber of the weapons used to shoot Ayari and Esther Garza or (2) the circumstances in which that admission was made. More specifically, the state trial court made no ruling prohibiting the prosecution from offering non-hearsay testimony about the events of April 14, 1994. When the prosecution attempted to introduce clearly hearsay testimony regarding Petitioner's other oral statements Petitioner made that date, the state trial court sustained Petitioner's trial counsel's timely objections. The evidence establishing Petitioner's guilt was, if not overwhelming, at the very least compelling. Esther Garza, the surviving victim, identified Petitioner as one of her assailants. Esther Menchaca, who had never seen Petitioner or Sara Rivas before January 4, 1994, picked both of their photographs out of photo arrays four months after that date the very first time she was shown any photographs of suspects in the case. Yvonne Martinez testified, without contradiction, that, on the evening following Ayari's murder, Petitioner told her details of the crime that only a person who had been present could have known.

The admission at Petitioner's trial of evidence inferentially showing that Petitioner led law enforcement officers on a fruitless search for weapons possessed little inculpatory value because it was susceptible to both inculpatory and exculpatory interpretations. At most, it showed that Petitioner's professed knowledge of the murder weapon's location could not be independently substantiated. Under such circumstances, the prosecution's improper questions regarding Petitioner's hearsay statements on April 14, 1994 did not render Petitioner's trial fundamentally unfair.

2. Testimony Regarding Sara Rivas' Statement

Petitioner also complains that the prosecution employed leading questions to communicate to the jury the context of Sara Rivas' written statement implicating Petitioner in Ayari's murder. However, the state habeas trial court concluded that (1) the contents of Rivas' written statement were not made known to the jury but, rather, (2) on both direct and cross-examination of Deputy Marin, the jury was made aware only that Rivas had given law enforcement officers a statement.¹⁰⁹ While set forth in the state habeas trial court's Order under the heading "conclusions of law," the foregoing determinations were clearly factual findings regarding what transpired at Petitioner's trial. Having independently reviewed the entire record from Petitioner's trial, this Court concludes the foregoing factual determinations were reasonable determinations of the facts from the evidence before Petitioner's state habeas court.

109 State Habeas Transcript, Volume II of II, at pp. 315-16.

During Deputy Marin's trial testimony, the prosecution elicited testimony establishing that (1) on March 29, 1994, Marin went with other officers to Brookshire, Texas to interview Sara Rivas, (2) the purpose of that interview was to follow up on a tip they had received through Crime Stoppers, (3) Rivas gave a statement to the officers, (4) the officers returned to San Antonio and put together a new pair of photo arrays, one of male suspects and one of female suspects, (5) the array of male suspects included Petitioner's photo, (6) within a day or two thereafter, Esther Garza picked Petitioner's photo out of the photo array of male suspects, and (7) this was the first time Esther Garza had been shown a photo array that included Petitioner's photograph.¹¹⁰

110 S.F. Trial, Volume XIX, testimony of Sal Marin, at pp. 148-56.

During a bench conference held immediately before this portion of Marin's testimony, the state trial court explained to the prosecution that, pursuant to the trial court's ruling on the defense's motion in limine, it could elicit testimony showing that Marin had talked with Rivas and that Rivas had furnished Marin with relevant information but not that Rivas had given a witness statement or confession.¹¹¹ Thereafter, the prosecution twice asked Marin whether he had obtained a written statement from Rivas, Petitioner's trial counsel objected both times on relevance grounds, and the trial court sustained both objections.¹¹² When the prosecution attempted to ask yet another question about Rivas' statement, Petitioner's trial counsel objected yet again, the trial court sustained the objection, and the trial judge called counsel to the bench.¹¹³

111 Id., at pp. 142-43.

112 Id., at p. 151.

113 Id.

During the ensuing bench conference, the prosecutor apologetically explained that he had understood the trial court's earlier ruling to permit him to disclose the fact that Rivas had made a statement but not to go into the context of same.¹¹⁴ The trial court explained that the prosecution could not present evidence showing that Rivas had made a formal statement or the contents of same.¹¹⁵ Immediately after the bench conference, the trial court advised the jury that it had sustained the last objection and instructed the jury to disregard the last question and answer.¹¹⁶

114 Id., at p. 152.

115 Id.

116 Id.

At that point, the prosecution attempted to ask Marin a question about Marin's actions immediately following Marin's return to San Antonio from Brookshire that was prefaced with the phrase "armed with that information."¹¹⁷ Petitioner's trial counsel objected both times the prosecution asked the question but the trial court overruled both objections.¹¹⁸ On cross-examination, Petitioner's trial counsel elicited testimony from Deputy Marin establishing that Marin informed Petitioner that Sara Rivas had given law enforcement officers a statement and that she was then in custody for her involvement in the offense.¹¹⁹

117 Id., at p. 153.

118 Id., at pp. 153-54.

119 Id., at pp. 220-21.

In summary, Petitioner's trial counsel made prompt objections each of the three times the prosecution attempted to elicit testimony from Marin showing that Rivas had given a formal written statement and the trial court sustained all three objections. Following the third such exchange, the trial court also instructed the jury to disregard Marin's answer to the question. At no point during Marin's testimony did Petitioner's trial counsel move for a mistrial or otherwise voice an objection accusing the prosecution of deliberate misconduct. At no point during Marin's trial testimony did Petitioner's trial counsel object that the prosecution's questions regarding Rivas' statement violated Petitioner's Sixth Amendment right to confront the witnesses against him. Finally, Petitioner's trial counsel elicited testimony from Marin on cross-examination establishing that Sara Rivas had given law enforcement officers a self-inculpatory statement about the offense.

Significantly, Petitioner alleges no facts showing that the trial court's instruction to disregard was insufficient to cure any error arising from the prosecution's questions. Ordinarily, proper jury instructions can suffice to prevent any possibility of prejudice. Zafiro v. United States, 506 U.S. 534, 540-41 (1993) (recognizing that juries are presumed to follow their instructions). Contrary to Petitioner's contention, the contents of Rivas' statement were never revealed to Petitioner's jury and the evidence establishing Petitioner's guilt was compelling, if not overwhelming. As explained above, to constitute a due process violation, prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. at 765-66. When a defendant complains that a prosecutor's questions rendered his trial fundamentally unfair, it is important to place the remark in proper context. Id.

Given the prompt objections of Petitioner's trial counsel, the trial court's swift rulings sustaining those objections and its specific instruction directing the jury to disregard Marin's testimony on this point, as well as the compelling evidence of Petitioner's guilt wholly unrelated to anything Sara Rivas might have told law enforcement officers, the Texas Court of Criminal Appeals could reasonably have concluded that the prosecution's questions about the fact that Sara Rivas gave a formal statement, even if improper, did not render Petitioner's trial fundamentally unfair. Under such circumstances, the Texas Court of Criminal Appeals' rejection on the merits of this same claim was neither contrary to, nor an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor the product of an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.

3. Victim Impact Testimony

Reza Ayari's widow Joanne was the prosecution's final witness at the guilt-innocence phase of Petitioner's trial. She testified that (1) she drove her husband to work around 8 p.m. the night of his murder, (2) she spoke with him at approximately 9:30 p.m. that same evening, (3) she expected him home by 7:30 a.m. the following morning, (4) when her husband did not return home from work the following morning, she attempted to reach him on his cell phone, (5) she then called her husband's employer but he would not answer her inquiries about her husband, (6) her brother called her that morning and told her not to go to work, (7) the Sheriff's Department called her around 12:30 p.m. on January 4, 1994 and informed her of her husband's death, and (8) State Exhibit no. 68 was a photograph of her husband.¹²⁰ At no point did Petitioner's trial counsel voice any objections to her testimony.

120 S.F. Trial, Volume XX, testimony of Joanne Ayari, at pp. 158-68.

Even under a de novo standard of review, Petitioner's complaint does not warrant federal habeas relief. Petitioner alleges no specific facts showing that the admission of Mrs. Ayari's testimony, even assuming that it fell within the parameters of "victim impact" testimony, rendered Petitioner's trial fundamentally unfair. As was true with regard to the Petitioner's other complaints of prosecutorial misconduct, the evidence of Petitioner's guilt was compelling. Petitioner is correct that, with the exception of her identification of her husband's photograph, Mrs. Ayari's testimony concerning the events of the night in question bore little relevance to any issue before the jury at the guilt-innocence phase of Petitioner's trial. However, her testimony, even if irrelevant, did not attack any defensive theory presented by Petitioner or bolster any evidence presented by the prosecution. The prosecution referred to Mrs. Ayari's testimony in its closing argument at the guilt-innocence phase of trial only for the purpose of pointing out there was no genuine dispute as to the victim's identity.¹²¹ Mrs. Ayari's testimony, even if irrelevant, did not distract the jury from the task before it at the guilt-innocence phase of Petitioner's trial, bolster any inculpatory evidence, denigrate any exculpatory evidence, or otherwise render the guilt-innocence phase of Petitioner's trial fundamentally unfair.

121 S.F. Trial, Volume XXI, at p. 11.

XI. Ineffective Assistance Claims

A. Overview of Complaints

1. Complaints About Trial Counsel

In his second, fifth, eighth, tenth, twelfth, fifteenth, and sixteenth claims herein, Petitioner argues that his trial counsel rendered ineffective assistance by (1) failing to present Esther Garza's medical records showing her blood alcohol level immediately after her shooting, (2) failing to present expert testimony regarding the infirmities in hypnotically enhanced testimony, (3) failing to object to the admission of the final sentences in Petitioner's written statement as an assertion of the right to remain silent, (4) failing to preserve for appellate review Petitioner's Confrontation Clause claims by moving for mistrial following the trial court's sustaining Petitioner's hearsay objections, (5) failing to present Sgt. Hubbard's report to impeach Esther Menchaca's in-court identification of Petitioner, (6) failing to object to the admission of victim impact testimony at the guilt-innocence phase of trial, (7) failing to object to errors in the punishment phase jury instructions, (8) eliciting harmful testimony from the defense's psychological expert at the punishment phase of trial, and (9) failing to have Petitioner evaluated for mental retardation.¹²²

122 Petitioner's Amended Petition, at pp. 27-35, 46-51, 63-73, 75-79, 85-87, 9-117.

2. Complaints About Appellate Counsel

In his first, fourth, seventh, eleventh, and fourteenth claims herein, Petitioner complains that his appellate counsel rendered ineffective assistance by failing to (1) properly preserve for appellate review the trial court's denial of Petitioner's motion to suppress Esther Garza's in-court identification testimony by citing to the location in the record where that trial court ruling was documented, (2) present a point of error complaining about the state trial court's admission of Petitioner's oral statement regarding the caliber of the weapons used in the shootings, (3) present a point of error complaining that the admission of testimony suggesting the contents of Sara Rivas' written statement implicating Petitioner in Ayari's murder violated the Confrontation Clause, (4) present a point of error complaining about the trial court's denial of Petitioner's requests to introduce records from Ayari's autopsy showing that Ayari was intoxicated on cocaine and alcohol at the time of his death, and (5) present a point of error challenging the fundamentally defective jury instructions at the punishment phase of trial.¹²³

123 Id., at pp. 11-27, 41-46, 63-73, 79-85, 90-99.

B. Clearly Established Federal Law

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 (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 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (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, 466 U.S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins, 539 U.S. at 523 (holding that 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 counsel at the time). It is strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690.

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, 539 U.S. at 534; Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.

The same standard applies to complaints about the performance of counsel on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (holding that a petitioner arguing ineffective assistance by his appellate counsel must establish both that (1) his appellate counsel's performance was objectively unreasonable and (2) there is a reasonable probability that, but for appellate counsel's objectively unreasonable conduct, the petitioner would have prevailed on appeal).

C. AEDPA Review

1. Petitioner's Trial Counsel Esther Garza's Testimony

In his second claim herein, Petitioner argues that his trial counsel rendered ineffective assistance by failing to present (1) Esther Garza's medical records showing her blood alcohol level immediately after her shooting and (2) expert testimony regarding the infirmities in hypnotically-enhanced testimony.

a. State Court Record and State Habeas Resolution

During his state habeas corpus proceeding, Petitioner presented expert testimony establishing that (1) Esther Garza's hospital medical records indicated that she had a blood alcohol level of .167 when she was treated for her facial gunshot wound, (2) this level is well above the legal limit of .100 for intoxication, (3) someone with this level of intoxication would necessarily be unreliable as a witness, but (4) there is a possibility someone with that blood alcohol level could still recognize another person who had caused them great harm.¹²⁴ During the same hearing, Petitioner's former trial counsel testified that (1) he believed Esther Garza's candid testimony regarding the amount of beer she had imbibed and her resulting intoxicated condition on the night in question "painted the picture quite clearly," (2) he did not feel it was necessary to establish her blood alcohol level through medical evidence, (3) Petitioner never denied being involved in Ayari's murder, (4) he believed Esther Garza's own words characterized her condition on the night in question more effectively than would her medical records, and (5) there was a possibility that Esther Garza's medical records might have hurt Petitioner's chances for an acquittal.¹²⁵ Petitioner offered the state habeas court no testimony, expert or otherwise, nor any other evidence addressing the reliability of hypnotically enhanced testimony.

124 S.F. State Habeas Hearing, Volume III, testimony of Raymond D. Potterf, at pp. 102-06.

125 S.F. State Habeas Hearing, Volume III, testimony of Pat Hancock, at pp. 41, 74, 87-88.

The state habeas trial court rejected both of these complaints, concluding that (1) the strategic decision by Petitioner's trial counsel to forego admission of Esther Garza's medical records was objectively reasonable and (2) Petitioner had presented no evidence showing what expert testimony regarding hypnosis was available at the time of Petitioner's trial to impeach Esther Garza's trial testimony and, thereby, failed to satisfy the prejudice prong of Strickland. ¹²⁶ This Court concludes that both these determinations were objectively reasonable applications of the dual prongs of Strickland.

126 State Habeas Transcript, Volume II of II, at pp. 295-96.

b. No Deficient Performance

Given Esther Garza's candid admissions regarding the quantity of alcohol she had imbibed prior to the shooting and the effect her consumption of alcohol had on her, Petitioner's trial counsel could reasonably have believed that the potential negative impact of introducing her medical records from the hospital where she was treated for her facial gunshot wound to establish her blood alcohol level might outweigh any marginal value to be obtained by scientifically validating what Garza had already told the jury about her condition immediately prior to the shooting. In fact, having independently reviewed the portions of Garza's medical records which Petitioner presented to the state habeas court, this Court finds Petitioner's trial counsel's strategic decision was reasonable. Garza's medical records detailed Garza's facial injuries following her near-fatal shooting by Rivas, as well as the extensive emergency medical treatment Garza received in the hours immediately after her shooting.¹²⁷ Petitioner's trial counsel could reasonably have believed that such evidence would prove more harmful to Petitioner than any marginal benefit Petitioner might gain from official documentation of Garza's blood alcohol level.

127 Garza's medical records appear at S.F. State Habeas hearing, Volume VI, immediately after the six photo arrays that do not include either Petitioner's or Sara Rivas' photographs.

Petitioner failed to present the state habeas court with any evidence showing precisely what expert testimony or other evidence was available at the time of Petitioner's trial to support Petitioner's contention that Esther Garza's in-court identification of Petitioner was tainted by unduly suggestive hypnosis procedures. Complaints about a trial counsel's failure to investigate, develop, or present exculpatory, mitigating, or impeachment evidence can support a finding of ineffective assistance but, to satisfy the prejudice prong of Strickland, such complaints must be supported by a showing of precisely what evidence was available at the time of trial and how such evidence would have impacted upon the jury's verdict at trial. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (holding that, without a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to a trial counsel's failure to investigate, develop, and present same, i.e., a showing of exactly what the missing evidence or testimony would have been, a court cannot even begin to apply the Strickland analysis because it is impossible to determine whether the defendant was "prejudiced" by the absence of such evidence). The state habeas trial court reasonably determined based on the evidence before it that Petitioner's state habeas counsel made no effort to present any evidence satisfying the prejudice prong of Strickland with regard to this aspect of Petitioner's ineffective assistance claims.

Furthermore, after reviewing the videotape recording from Esther Garza's hypnosis session included in the record, this Court independently concludes there is no evidence before this Court establishing that Garza's hypnosis session was unduly suggestive or that Garza's memories were tainted somehow by what transpired during her hypnosis session. In short, Petitioner has failed to present this Court with any fact-specific allegations, much less any evidence, showing that Garza's hypnosis session was unduly suggestive or otherwise tainted her in-court identification of Petitioner. Under such circumstances, the decision by Petitioner's trial counsel not to aggressively challenge Esther Garza's trial testimony as having been tainted during her hypnosis session was an objectively reasonable one. Nothing that was said to Esther Garza during her videotaped hypnosis session on February 3, 1994 by her examiner or any of the others present appears to this Court to have suggested that she should identify Petitioner (or any other identifiable individual) as her assailant or that she should change her description of the male assailant she had previously furnished to law enforcement officers in any particular manner. On the contrary, after interviewing Garza, the hypnosis examiner simply attempted to relax Garza and ask her to describe the events of the night in question in greater detail and to describe the appearance of the male and female suspects in greater detail. Garza furnished no additional details about either subject's appearance or about the events of the night in question, however. The composite sketch Garza helped law enforcement officers develop during her hypnosis session on February 3, 1994 was virtually identical to the one she helped create on January 10, 1994. Under such circumstances, Petitioner has failed to allege any specific facts, much less present any evidence, showing that Esther Garza's hypnosis session on February 2, 1994 tainted her in-court identification of Petitioner as one of her and Ayari's assailants. Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) ("Counsel cannot be deficient for failing to press a frivolous point.").

c. No Prejudice

Moreover, having independently reviewed the record from Petitioner's trial and state habeas corpus proceeding, this Court concludes that neither of these complaints satisfy the prejudice prong of Strickland. Esther Garza admitted at trial that she had consumed a large quantity of alcohol on the night in question prior to the shooting and that she was "wasted," i.e., intoxicated or drunk.¹²⁸ However, she also insisted that she could still see clearly, walk without stumbling, and play pool.¹²⁹ Esther Garza's eyewitness testimony identifying Petitioner as one of the two persons riding in Ayari's cab when she and Ayari were shot was corroborated by the trial testimony of Yvonne Martinez that she was awakened in the early morning hours of January 4, 1994 by Petitioner tapping on her bedroom window.¹³⁰ At trial, Esther Garza identified a photograph of Yvonne Martinez's home as the location where Ayari stopped his taxicab on the night in question and their male passenger exited, approached a window, and subsequently returned to the taxicab.¹³¹ Petitioner has never presented any court, including this one, with any fact-specific allegations, much less any evidence, showing that anyone other than Petitioner tapped on Yvonne Martinez's bedroom window during the early morning hours of January 4, 1994. Moreover, Martinez also testified at trial that, on the date of the shooting, Petitioner confessed to her that he and Rivas had shot and attempted to rob a taxicab driver and furnished details of the offense that only someone who had been present at the crime scene could have known.¹³²

128 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 99, 108, 160-61, 164-65, 167-68, 210-11.

129 Id., at pp. 102, 108, 161, 167.

130 S.F. Trial, Volume XIX, testimony of Yvonne Martinez, at p. 255-59.

131 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 133-14.

132 S.F. Trial, Volume XIX, testimony of Yvonne Martinez, at pp. 265-67 269-70.

Esther Garza's identification of Petitioner as one of her and Ayari's assailants was also corroborated by the trial testimony of Esther Menchaca, who identified Petitioner as the young Hispanic male she had seen walking away from Ayari's abandoned taxicab shortly after Ayari's fatal shooting.¹³³ Menchaca testified at trial that she identified Petitioner's photograph from a photo array she saw for the first time on May 3, 1994.¹³⁴ Menchaca testified further at trial that, on the same date she identified Petitioner's photograph from the photo array in question, she also picked Sara Rivas photograph from a similar photo array of female suspects.¹³⁵ Petitioner has never presented any court with any fact-specific allegations, much less any evidence, establishing that Esther Menchaca ever saw either Petitioner or Sara Rivas on any dates other than January 4, 1994 and the two occasions when Menchaca identified Petitioner in-court.

133 S.F. Trial, Volume XIX, testimony of Esther C. Menchaca, at pp. 73-77.

134 Id., at pp. 80-82.

135 S.F. Trial, Volume XIX, testimony of Esther C. Menchaca, at pp. 128-29.

Finally, Esther Garza's in-court identification of Petitioner as one of her and Ayari's assailants was corroborated by Petitioner's carefully-worded written statement, in which he admitted to being present when Rivas shot Garza in the face.

Under such circumstances, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to more aggressively attack Esther Garza's credibility through the admission of her medical records and unspecified evidence regarding the potentially suggestive nature of hypnosis, the outcome of either phase of Petitioner's trial would have been different.

2. Appellate Counsel Esther Garza's Testimony

In his first claim herein, Petitioner complains that his appellate counsel rendered ineffective assistance by failing to direct the state appellate court to the location in the trial court record where the trial court denied Petitioner's pretrial motion to suppress Esther Garza's in-court identification testimony.

a. State Court Record State Habeas Disposition

On direct appeal, Petitioner's appellate counsel did raise a point of error complaining about the trial court's denial of Petitioner's pretrial motion to suppress Esther Garza's identification testimony. More specifically, Petitioner complained that Garza's in-court identification of Petitioner was tainted by both her hypnosis session and by the "show up" that occurred January 24, 1994 when Garza was directed to look at Petitioner and Yvonne Martinez through eye slits cut in a piece of cardboard taped to a window at the Bexar County Sheriff's Department. However, the Texas Court of Criminal Appeals refused to address the merits of that claim based on its findings that the trial court failed to make a formal ruling on Petitioner's pretrial motion to suppress and Petitioner failed to object at trial to Garza's in-court identification testimony on these same grounds.¹³⁶ Petitioner's appellate counsel testified during Petitioner's state habeas corpus proceeding that (1) he did not believe the State's assertion of procedural default with regard to the point of error in question had been truthful, (2) yet he did not make any effort to alert the state appellate court to the location in the record where the trial court formally overruled Petitioner's motion to suppress Esther Garza's in-court identification testimony, (3) he did not search the record for that information, and (4) he did not file a motion for rehearing identifying the docket entry indicating the trial court had denied that motion because, in his opinion, the docket entry in question did not specifically reference Esther Garza.¹³⁷ The state habeas trial court concluded that Garza's in-court identification testimony was clearly admissible despite Petitioner's complaints about the show up and hypnosis session and, therefore, this claim did not satisfy the prejudice prong of Strickland. ¹³⁸ This Court concludes that this determination was an objectively reasonable application of the prejudice prong of Strickland.

136 Amador v. State, No. 72,162 (Tex.Crim.App. April 23, 1997), slip op. at pp. 5-6.

137 S.F. State Habeas Hearing, Volume II, testimony of Vincent Callahan, at pp. 10-12, 15, 17, 21, 33-35.

138 State Habeas Transcript, Volume II of II, at pp. 288-94.

b. No Prejudice

As explained above, Petitioner never alleged any specific facts, nor presented any evidence, before the state habeas court establishing that any of the procedures employed during Esther Garza's February 2, 1994 hypnosis session were unduly suggestive or otherwise tainted Esther Garza's subsequent in-court identification of Petitioner as one of her and Ayari's assailants. Nor has this Court's independent review of the videotape recording of Garza's hypnosis session disclosed any arguable legal or factual basis supporting Petitioner's conclusory assertions that Garza's in-court identification of Petitioner was tainted by events that transpired during that session. Thus, there does not appear to be any reasonable possibility, much less a reasonable probability, that a properly preserved point of error predicated on the circumstances of, and events during, Garza's hypnosis session would have led the Texas Court of Criminal Appeals to conclude that the trial court's admission of Garza's in-court identification of Petitioner constituted reversible error.

Petitioner's complaints about the unduly suggestive impact of the show up on January 24, 1994 are more complicated, however. The United States Supreme Court has long recognized the pernicious influence an impermissibly suggestive identification process may have on a subsequent in-court identification. See Stovall v. Denno, 388 U.S. 293, 302 (1967) ("[T]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned."). For that reason, the Supreme Court has long held the constitutional guarantee of the assistance of counsel applies at a post-indictment lineup. United States v. Wade, 388 U.S. 218, 228-39 (1967). For just as long a period, however, the Supreme Court has recognized the Due Process Clause does not mandate a per se rule requiring the exclusion of in-court identification testimony following an impermissibly suggestive lineup or show up procedure. See Neil v. Biggers, 409 U.S. 188, 198 (1972) (holding that the admission of evidence of a show up, without more, does not violate due process); Stovall, 388 U.S. at 302 (holding a victim's in-court identification admissible despite the fact she had been shown the defendant, handcuffed to a police officer, in her hospital room only hours after the offense, based upon a finding that the victim's critical, postsurgery, condition warranted such a confrontation). Rather, the question of the admissibility of identification testimony following suggestive pretrial identification procedures focuses on the reliability of the in-court identification and turns on the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (holding the factors to be weighed against the corrupting effect of a suggestive identification include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation); Neil, 409 U.S. at 199 (holding the central question is whether, under the totality of the circumstances, the identification was reliable and discussing the same factors listed in Manson). At the time of Petitioner's direct appeal, the Texas Court of Criminal Appeals applied this same legal standard and employed the same analytical factors in determining the admissibility of an in-court identification following impermissibly suggestive pretrial identification procedures. See, e.g., Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App.), cert. denied, 510 U.S. 982 (1993) (citing Manson factors); Cooks v. State, 844 S.W.2d 697, 731 (Tex.Crim.App.), cert. denied, 509 U.S. 927 (1993) (holding that, where the totality of the circumstances shows no substantial likelihood of misidentification, the testimony is considered reliable).

Contrary to Petitioner's contentions in his pleadings in this Court, Esther Garza testified both during the pretrial hearing on Petitioner's motion to suppress and at trial that she had seen the Petitioner's face not only as Petitioner returned to Ayari's taxicab after exiting the cab to get more money but also while Petitioner was inside the cab during their drive from San Antonio to Poteet while Petitioner conversed with her and Ayari.¹³⁹ In fact, Garza testified at both the pretrial hearing and trial that the reason she had initially overestimated Petitioner's height at slightly over six feet was because she was slouched down in her seat inside the cab, which made Petitioner (seated in the back seat directly behind Ayari) appear taller than he actually was.¹⁴⁰ Thus, Garza had ample opportunity to view Petitioner during the drive to Poteet.

139 S.F. Trial, Volume III, testimony of Esther Imelda Garza, at pp. 11-15 60-61; Volume XVIII, testimony of Esther Garza, at pp. 109-15, 193, 214, 218.

140 Id., Volume III, testimony of Esther Imelda Garza, at pp. at pp. 25 60-61; Volume XVIII, testimony of Esther Garza, at pp. 115 218.

Garza admitted during the pretrial hearing, however, that the only time she got a "good look" at Petitioner's face was when he jumped the fence on his way back to Ayari's taxicab as the others waited beside the Martinez residence.¹⁴¹ Nonetheless, with the exception of Petitioner's height, Garza's descriptions of Petitioner, including the composite sketch she developed with a law enforcement officer on January 10, 1994, were consistent with Petitioner's appearance as of the date of the shootings. In fact, Petitioner testified, without contradiction anywhere in the record now before this Court, that Petitioner changed his appearance radically between the date of the offense and the date of the show up by virtually shaving his head.¹⁴² Garza's in-court identifications of Petitioner at both the pretrial hearing and at trial were definite and unequivocal.¹⁴³

141 Id., Volume III, testimony of Esther Imelda Garza, at p. 46; Volume XVIII, testimony of Esther Garza, at p. 214.

142 Id., Volume III, testimony of Esther Imelda Garza, at pp. 25 60; Volume XVIII, testimony of Esther Garza, at p. 145.

143 Id., Volume III, testimony of Esther Imelda Garza, at p. 11; Volume XVIII, testimony of Esther Garza, at pp. 110, 248, 251.

Despite the suggestive nature of the show up on January 24, 1994, Garza resisted the pernicious influence of the show up, telling officers on that date that, while Petitioner looked like the male assailant she could neither identify him nor exclude him as the male who rode with her and Ayari at the time of the shootings.¹⁴⁴ Garza explained at both the pretrial hearing and at trial that her reluctance to identify Petitioner at the time of the show up was based on the difference in Petitioner's height from what she recalled from the night of the shootings, the fact that Petitioner was practically bald on the date of the show up in contrast to the full head of black hair Petitioner had on the night of the shootings, and by her own determination not to identify anyone unless and until she was certain of her identification.¹⁴⁵ Equally to her credit, Garza steadfastly refused to identify any of the male suspects in any of the photo arrays she was shown until March 30, 1994, when, for the first time, she was shown an array that included Petitioner's photograph. Thus, any impact from the impermissibly suggestive show up on January 24, 1994 was ameliorated dramatically by virtue of Garza's reluctance to be influenced thereby. Under such circumstances, the state habeas court could reasonably have concluded there was no reasonable probability that proper preservation of Petitioner's first point of error on direct appeal would have altered the outcome of Petitioner's direct appeal.

144 Id., Volume III, testimony of Esther Imelda Garza, at pp. 24-26 60-61; Volume XVIII, testimony of Esther Garza, at pp. 145, 154, 229, 232.

145 Id.

The Texas Court of Criminal Appeals' conclusion in the course of Petitioner's state habeas corpus proceeding that Petitioner's first point of error on direct appeal lacked substantive merit, i.e., that Garza's testimony was clearly admissible, 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 the product of an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.

3. Appellate Counsel Petitioner's Oral Statement

In his fourth claim herein, Petitioner argues that his appellate counsel should have presented a point of error complaining that the trial court's admission of Petitioner's oral statement regarding the caliber of the weapons used during the shootings violated a state statute, i.e., Article 38.22 of the Texas Code of Criminal Procedure.

a. State Court Record State Habeas Disposition

The state habeas trial court rejected this aspect of Petitioner's ineffective assistance claim, concluding that (1) Petitioner procedurally defaulted on his state statutory claim by failing to re-urge the statutory basis for excluding the statement when it was offered into evidence at trial by relying solely upon a hearsay objection and (2) the oral statement in question was admissible under applicable state law.¹⁴⁶ Petitioner argues that both of these conclusions are at odds with long-standing state case law construing and applying the state statute in question.

146 State Habeas Transcript, Volume II of II, at pp. 299-302.

b. No Prejudice

For reasons somewhat different than those set forth in the state habeas trial court's conclusions of law, this Court concludes that this aspect of Petitioner's ineffective assistance claims fails to satisfy the prejudice prong of Strickland. First, this Court is mindful that, in the course of reviewing a state criminal conviction in a federal habeas corpus proceeding, this Court is not to act as a super-state appellate tribunal, reviewing a state court's application of purely state-law principles. Estelle, 502 U.S. at 67-68. Accordingly, the question properly before this Court is whether there is a reasonable probability that, but for the failure of Petitioner's appellate counsel to assert an Article 33.22 point of error on direct appeal, the outcome of Petitioner's direct appeal would have been different. Smith, 528 U.S. at 285.

At the time of Petitioner's direct appeal, the Texas Court of Criminal Appeals applied a harmless error analysis to complaints about the erroneous admission of evidence, including the allegedly erroneous admission of oral statements under Article 38.22. See Pondexter v. State, 942 S.W.2d 577, 584-85 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 825 (1997) (applying former Tex. R. App. P. 81(b)(2) to a claim that a trial court erred in admitting evidence of the defendant's gang affiliation); Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996) (applying former Rule 81(b)(2) to a claim the trial court erred in admitting a defendant's oral statements under Article 33.22). Under the Texas harmless error principles that governed at the time of Petitioner's direct appeal, state appellate courts examined the following factors in assessing the harmlessness of trial error: (1) the source of the error; (2) the nature of the error; (3) whether the error was emphasized and its probable collateral implications; (4) the weight a juror would probably place on the error; and (5) whether declaring the error harmless encouraged the State to repeat it with impunity. Wilson v. State, 938 S.W.2d 57, 61 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997).

The state trial court held Petitioner's statement about the caliber of the weapons to be admissible following a lengthy pretrial hearing on Petitioner's motions to suppress. Thus, any error in the admission of the statement in question could not be ascribed totally to the prosecution. The allegedly erroneous evidentiary ruling resulted in the admission of a single oral statement. Petitioner's oral statement of April 14, 1994 correctly identifying the caliber of the weapons used during the shootings, while inculpatory in nature, added very little to the compelling testimony of Yvonne Martinez, Esther Garza, and Esther Menchaca and other evidence that the prosecution presented during Petitioner's capital murder trial. Petitioner's oral statement was made months after the crime, long after police had found a .380 shell casing at the crime scene, and advised the public of that fact, and long after a .25 caliber slug had been surgically removed from Esther Garza's nasal cavity. At trial, Deputy Marin admitted on cross-examination that, on January 4, 1994, Bexar County law enforcement officers issued a press release identifying one of the weapons used in the shootings of Ayari and Garza as a "possible .380" semiautomatic pistol.¹⁴⁷ There was testimony from other law enforcement officers at trial that a .380 caliber shell casing was found at the shooting scene.¹⁴⁸ One of those law enforcement officers also testified at trial that he photographed a shell casing, presumably .25 caliber, on the floor of the taxicab directly behind the passenger seat.¹⁴⁹ Thus, Petitioner's oral statement regarding the weapons added virtually nothing of a probative nature to the inculpatory written statement Petitioner had executed the day before.

147 S.F. Trial, Volume XIX, testimony of Sal Marin, at p. 191.

148 S.F. Trial, Volume XVIII, testimony of Samuel Presas, Jr., at p. 89; Volume XVIII, testimony of Daniel Sanchez, Jr., at pp. 258 263.

149 Id., Volume XVIII, testimony of Daniel Sanchez, Jr., at p. 272. The affidavit attached to Petitioner's arrest warrant (State's Exhibit no. 7 at trial) states, in pertinent part, that a .25 caliber bullet was removed from the body of the surviving victim (Esther Garza) and a .25 caliber shell casing was recovered from the taxi. S.F. Trial, Volume XXIII.

In sum, Petitioner's oral statement was tangential to the compelling evidence of his guilt, including Petitioner's own written statement and Yvonne Martinez's trial testimony regarding Petitioner's oral confession to her. Likewise, Petitioner's oral statement regarding weapons caliber neither added to nor detracted from Esther Garza's first-hand account of her assault. Under such circumstances, it is highly unlikely the jury ascribed much evidentiary value to Petitioner's oral statement, even if it were erroneously admitted.

Given the nature of state harmless error analysis as it existed at the time of Petitioner's direct appeal, this Court concludes there is no reasonable probability that, but for the failure of Petitioner's appellate counsel to present a point of error on direct appeal complaining about the erroneous admission of Petitioner's oral statement, the outcome of Petitioner's direct appeal would have been different. Therefore, the state habeas court's rejection on the merits of this aspect of Petitioner's multi-faceted ineffective assistance claims was neither contrary to, nor an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor the product of an unreasonable determination of the facts in light of the evidence presented in Petitioner's state habeas corpus proceeding.

4. Trial Counsel Petitioner's Written Statement

In his fifth claim herein, Petitioner argues that his trial counsel should have objected to the admission, or moved for the redaction, of the final three sentences included in Petitioner's written statement (i.e., "This is all I want to say. I don't want to say any more. I will just wait for my day in court.") as itself an assertion of Petitioner's Fifth Amendment right to remain silent.

a. State Court Record State Habeas Disposition

The state habeas trial court concluded that even if Petitioner's trial counsel should have made such an objection or motion, said counsel's failure to do so did not prejudice Petitioner within the meaning of Strickland. ¹⁵⁰

150 State Habeas Transcript, Volume II of II, at pp. 302-05.

b. No Prejudice

This Court concludes, for the reasons set forth at length above, that the state habeas court acted in a reasonable manner when it concluded there was no reasonable probability the outcome of either phase of Petitioner's capital murder trial would have been any different had the foregoing three sentences been excised from Petitioner's written statement. This Court further concludes that any error associated with the presentation to Petitioner's jury of the three sentences in question was harmless, at best. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that the test for harmless error in a federal habeas corpus action brought by a state prisoner is "whether the error had substantial and injurious effect or influence in determining the jury's verdict").

5. Trial Counsel Testimony regarding Sara Rivas' Statement

In his eighth claim herein, Petitioner complains that his trial counsel failed to move for a mistrial following the state trial court sustaining said counsel's objections to the prosecution's questions about Sara Rivas's written statement, discussed above.

a. State Court Record and State Habeas Disposition

As explained above, Petitioner's trial counsel raised successful hearsay objections to the prosecution's repeated questions about Sara Rivas's statement but never raised any Confrontation Clause objection. The state habeas trial court concluded that (1) Petitioner had made no effort to explore the reasons Petitioner's trial counsel chose not to move for mistrial, (2) Petitioner's trial counsel elicited the same, allegedly objectionable, testimony during cross-examination of Deputy Marin, and (3) under such circumstances, Petitioner failed to overcome the presumption of reasonableness afforded a trial counsel's strategic decisions.¹⁵¹

151 State Habeas Transcript, Volume II of II, at pp. 313-16.

As this Court explained, the state habeas trial court's factual finding that the contents of Sara Rivas' written statement were never disclosed to Petitioner's jury is a reasonable factual determination based on the record from Petitioner's trial. When the prosecution elicited testimony from Deputy Marin regarding Sara Rivas's statement, the trial court sustained Petitioner's trial counsel's hearsay objections thereto and instructed the jury to disregard that testimony.¹⁵²

152 See notes 110-18, supra, and accompanying text.

b. No Deficient Performance or Prejudice Arising from Failure to Move for Mistrial

Petitioner has furnished this Court with no authority supporting his assertion that, had his trial counsel thereafter moved for a mistrial, such motion would have been granted. Nor has this Court's independent research disclosed any legal authority supporting such a contention. The simple fact is that the contents of Sara Rivas's written statement were never revealed to Petitioner's jury. When the prosecution elicited testimony establishing Sara Rivas gave a formal written statement, the trial court sustained Petitioner's objections thereto and instructed the jury to disregard that testimony. Juries are presumed to follow a trial court's instructions. Zafiro, 506 U.S. at 540-41.

Petitioner has failed to allege any specific facts showing that any legitimate legal basis existed for granting a mistrial following the trial court's instruction that the jury disregard the objectionable testimony. Nor did Petitioner present the state habeas court with any evidence showing precisely why Petitioner's trial counsel chose not to move for a mistrial at that juncture. The state habeas trial court accurately noted that Petitioner's trial counsel was never questioned during Petitioner's state habeas corpus proceeding regarding the reasons he and his co-counsel chose not to move for a mistrial after the trial court sustained their hearsay objections. A convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins, 539 U.S. at 523 (holding that the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance, which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). The state habeas court reasonably concluded that Petitioner's trial counsel acted in an objectively reasonable manner in making timely objections, obtaining favorable rulings thereon, and obtaining a trial court instruction directing the jury to disregard the offensive testimony. The state habeas court reasonably concluded that, under such circumstances, Petitioner failed to overcome the presumption of prejudice that accompanies most strategic and tactical decisions by trial counsel.

The state habeas court reasonably concluded that trial counsel acted in an objectively reasonable manner when said counsel failed to move for a mistrial based on what was obviously the prosecution's misunderstanding of the trial court's oral ruling addressing precisely what information the prosecution could elicit regarding Sara Rivas's statement. Petitioner presented neither the state habeas court nor this Court with any legal authority mandating a mistrial under state law in circumstances such as those surrounding the prosecution's mistaken interpretation of the trial court's earlier ruling limiting the scope of evidence admissible regarding Sara Rivas's statement. The state habeas court reasonably concluded that the failure of Petitioner's trial counsel to move for a mistrial did not cause the performance of said counsel to fall below an objective level of reasonableness.

Likewise, Petitioner cites no authority establishing that a mistrial motion, made in the circumstances in question, would necessarily have been granted. Petitioner presented the state habeas court with no factual allegations, evidence, or legal authority establishing that state law mandated a mistrial in circumstances such as those at issue. Thus, the state habeas court reasonably concluded there was no reasonable probability that, but for the failure of Petitioner's trial counsel to move for a mistrial, the outcome of Petitioner's trial would have been any different.

c. No Deficient Performance or Prejudice Arising from Failure to "Preserve" Confrontation Clause Complaint

Insofar as Petitioner argued that his trial counsel's failure to move for a mistrial deprived Petitioner of the ability to challenge the admission of Sara Rivas's statement on direct appeal, the state habeas court determined that the contents of Rivas's statement had not been admitted into evidence and therefore, there was no Confrontation Clause claim to be preserved.¹⁵³ Moreover, the state habeas court concluded that Petitioner failed to present any evidence showing why Petitioner's trial counsel chose not to assert a Confrontation Clause complaint as to trial testimony that either (1) the state trial court had instructed the jury to disregard or (2) Petitioner's trial counsel had himself elicited during cross-examination of Deputy Marin.

153 State Habeas Transcript, Volume II of II, at pp. 314-15.

Petitioner cites this Court to no authority supporting the implicit proposition underlying this aspect of Petitioner's ineffective assistance claim, i.e., that a motion for a mistrial would have preserved Petitioner's Confrontation Clause complaint about the testimony given at trial regarding Sara Rivas's statement. This Court's independent research has revealed no authority supporting such a legal proposition. On the contrary, Texas law appears to be at odds with such a view. See Ibarra v. State, 11 S.W.3d 189, 196-97 (Tex.Crim.App. 1999), cert. denied, 531 U.S. 828 (2000) (holding that a hearsay objection failed to preserve for state appellate review complaints that the same testimony was irrelevant). At the time of Petitioner's trial and direct appeals, applicable state rules of appellate procedure provided that objections to the admission of evidence at trial that failed to advise the trial court of the legal basis for a complaint about the admission raised on appeal failed to preserve the latter for state appellate review. See Knox v. State, 934 S.W.2d 678, 687 (Tex.Crim.App. 1996) (applying former Tex. R. App. P. Rule 52(a)).

Thus, there is no legal support for Petitioner's contention that a motion for mistrial following the state trial court's favorable rulings on Petitioner's hearsay objections would have somehow preserved for state appellate review Petitioner's complaint that the admission of the testimony regarding Sara Rivas's written statement violated Petitioner's Confrontation Clause rights. Under such circumstances, the state habeas court reasonably concluded that the failure of Petitioner's trial counsel to move for mistrial, as a means of preserving a Confrontation Clause claim, did not cause the performance of said counsel to fall below an objective level of reasonableness.

Moreover, the state habeas court reasonably concluded that Petitioner was not prejudiced by his trial court's failure to move for a mistrial because said counsel subsequently elicited testimony from Deputy Marin establishing that Sara Rivas had given a self-inculpatory statement regarding the offense and was then in custody. Simply put, at trial, Petitioner's trial counsel successfully objected to both the prosecution's questions and testimony from Deputy Marin regarding the fact Sara Rivas had given law enforcement officers a formal statement concerning the offense. Petitioner's trial counsel also convinced the trial court to instruct the jury to disregard Marin's testimony about those subjects. On cross-examination, however, Petitioner's trial counsel elicited from Deputy Marin testimony that established both that Rivas had given a formal statement regarding the offense and, as a result, she was then in custody. Under such circumstances, the state habeas court reasonably concluded that Petitioner's complaints about the exchange that occurred during Deputy Marin's direct examination could not satisfy the Strickland prejudice prong.

Furthermore, having independently examined Petitioner's Confrontation Clause complaint, this Court finds it to be without merit. In Bruton v. United States, 391 U.S. 123, 135-36 (1968), the Supreme Court held the admission at a joint trial of a non-testifying co-defendant's oral confession inculpating the defendant violated the defendant's right to a fair trial under the Confrontation Clause. The Supreme Court subsequently applied its holding in Bruton to prohibit introduction during a joint trial of a non-testifying co-defendant's confession where, although the defendant's name was deleted, the confession contained other information from which the jury could readily infer the identify of the defendant whose name was deleted. Gray v. Maryland, 523 U.S. 185, 192-97 (1998). However, the Supreme Court held admissible a non-testifying co-defendant's confession where, accompanied by a proper limiting instruction, the confession was redacted to eliminate any reference to the defendant's existence. Richardson v. Marsh, 481 U.S. 200, 211 (1987).

More recently, the Supreme Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause bars the admission of testimonial statements where the declarant is unavailable and the defendant was unable to cross-examine the declarant.

Regardless of whether one examines Petitioner's Confrontation Clause claim under the Bruton line of cases or the Supreme Court's recent holding in Crawford, two unassailable facts render that claim utterly devoid of arguable merit: (1) neither Sara Rivas's written statement nor its contents were made known to Petitioner's jury and (2) the only testimony properly before Petitioner's jury suggesting that Sara Rivas had given law enforcement agents a formal statement that resulted in her arrest was elicited by Petitioner's own trial counsel, not by the prosecution. Thus, there was no testimonial statement made by Sara Rivas's properly before Petitioner's jury. Petitioner's trial counsel himself presented the jury with testimony from which it could conclude that Sara Rivas' statement implicated her in Ayari's murder. Under such circumstances, the failure of Petitioner's trial counsel to preserve Petitioner's proffered Confrontation Clause claim did not cause the performance of said counsel to fall below an objective level of reasonableness and did not prejudice Petitioner within the meaning of Strickland.

6. Appellate Counsel Sara Rivas's Statement

In his seventh claim herein, Petitioner complains that his appellate counsel rendered ineffective assistance by failing to present a point of error on direct appeal complaining that Sara Rivas's statement had been admitted into evidence.

a. State Court Record State Habeas Disposition

As explained above, the state habeas court concluded that such a complaint was factually inaccurate because (1) the contents of Rivas's statement were not made known to the jury, (2) the only fact made known to the jury by the prosecution was that Rivas gave a statement, and (3) Petitioner's own trial counsel elicited testimony suggesting that Rivas's formal statement implicated her in Ayari's murder.¹⁵⁴

154 State Habeas Transcript, Volume II of II, at pp. 315-16.

b. No Deficient Performance or Prejudice

For the reasons set forth at length above in connection with Petitioner's eighth claim for relief, the state habeas court reasonably concluded that the failure of Petitioner's trial counsel to assert a Confrontation Clause claim or to "preserve" same through a motion for mistrial did not cause the performance of said counsel to fall below an objective level of reasonableness. Furthermore, the state habeas court also reasonably concluded that Petitioner's trial counsel's failure in that regard did not "prejudice" Petitioner within the meaning of Strickland.

There was likewise nothing objectively unreasonable about the state habeas court's conclusion that Petitioner's appellate counsel did not render ineffective assistance by failing to assert a point of error on direct appeal complaining about a Confrontation Clause violation. As explained above, Petitioner's hearsay objections were insufficient as a matter of applicable state law to preserve a Confrontation Clause issue for direct appeal. Furthermore, any such claim was legally frivolous. Appellate counsel is not required to present every available, non-frivolous, claim on direct appeal from a criminal conviction. Smith, 528 U.S. at 288 (appellate counsel who files a brief on the merits need not raise every non-frivolous claim but, rather, may select from among them in order to maximize the likelihood of success on appeal). The state habeas court reasonably concluded that the failure of Petitioner's appellate counsel to present a Confrontation Clause point of error that had not been properly preserved for state appellate review did not cause the performance of said appellate counsel to fall below an objective level of reasonableness.

In evaluating a claim of ineffective assistance by appellate counsel under the prejudice prong of Strickland, the proper inquiry is whether there is a reasonable probability that, but for the objectively unreasonable conduct of said counsel, the Petitioner would have prevailed on appeal. Smith, 528 U.S. at 285. Because Petitioner's proposed Confrontation Clause point of error was neither properly preserved for state appellate review but also utterly lacking in merit, the state habeas court reasonably concluded that this complaint about Petitioner's appellate counsel failed to satisfy the prejudice prong of Strickland.

7. Trial Counsel Sergeant Hubbard's Report

In his tenth claim herein, Petitioner argues that his trial counsel rendered ineffective assistance by failing to use records available at the time of trial to impeach Esther Menchaca's in-court identification of Petitioner and Sara Rivas as the persons she saw walking away from the taxicab on the morning of Ayari's murder.

a. State Court Record State Habeas Disposition

Both at the pretrial hearing and at trial, Menchaca steadfastly insisted that she had seen the faces of the young couple in question as she drove past them on her way to work on January 4, 1994.¹⁵⁵ During Petitioner's state habeas corpus proceeding, Petitioner presented a report dated January 4, 1994, apparently prepared by Bexar County Sheriff's Deputy T.A. Hubbard, which stated, in pertinent part, that Menchaca related to him that she had not seen the faces of the two persons in question.¹⁵⁶

155 S.F. Trial, Volume IV, testimony of Esther C, Menchaca, at pp. 120 137-39; Volume XIX, testimony of Esther C. Menchaca, at pp. 73-75, 113, 115, 117.

156 A copy of this report is attached as Appendix A to the state habeas trial court's findings of fact and conclusions of law found at State Habeas Transcript, Volume II of II, at pp. 357-58.

During the evidentiary hearing held in Petitioner's state habeas corpus proceeding, Petitioner examined one of Petitioner's co-counsel at trial, attorney Patrick Hancock, about the report in question.¹⁵⁷ Attorney Hancock testified that (1) he did not recall seeing Sgt. Hubbard's report, (2) his co-counsel, attorney Carlos Martinez, had cross-examined Menchaca at trial, and (3) Esther Menchaca's written statement executed August 3, 1994 had been furnished to Petitioner's trial counsel prior to trial.¹⁵⁸ For unknown reasons, however, Petitioner did not call his other co-counsel at trial, attorney Carlos Martinez, to testify regarding the reasons why said counsel had chosen not to employ Sgt. Hubbard's report to impeach Ms. Menchaca at trial. Likewise, Petitioner presented the state habeas court with no testimony or other evidence showing either (1) that Esther Menchaca had ever seen Sgt. Hubbard's report or adopted its contents as her own, (2) what testimony Esther Menchaca would have given had she been confronted at trial with Sgt. Hubbard's report, more specifically, whether Esther Menchaca would have admitted that she had ever denied seeing the faces of the couple in question when she conversed with Sgt. Hubbard via telephone on the night following Ayari's murder, or (3) what testimony Sgt. Hubbard would have given had he been called to testify at Petitioner's trial regarding the contents of the report in question.

157 S.F. State Habeas Hearing, Volume III, testimony of Pat Hancock, at pp. 44-46 67-68.

158 Id.

The state habeas court concluded that Petitioner's complaint about his trial counsel's failure to call Sgt. Hubbard at trial to impeach Esther Menchaca failed because (1) Petitioner failed to show that Menchaca had ever denied making the statement in question to Hubbard (or would have done so had she been cross-examined on that point at trial), (2) Petitioner failed to establish that Hubbard's potential trial testimony would have been admissible to impeach Menchaca, (3) Petitioner's complaint amounted to an argument that his trial counsel had failed to present inadmissible evidence, and (4) Petitioner failed to overcome the presumption of reasonableness afforded trial counsel's strategic decisions, such as how to conduct cross-examination.¹⁵⁹

159 State Habeas Transcript, Volume II of II, at pp. 318-19.

b. No Deficient Performance or Prejudice

Given the lack of evidence submitted by Petitioner to the state habeas court in support of this aspect of his ineffective assistance claims, the state habeas court reasonably concluded that Petitioner failed to demonstrate that his trial counsel's decision not to call Sgt. Hubbard to testify at trial caused the performance of said counsel to fall below an objective level of reasonableness. Petitioner failed to present the state habeas court with any evidence showing what testimony Hubbard would have given had he been called to testify at trial. Further, Petitioner failed to present the state habeas court with any evidence that would have rendered the contents of Hubbard's report admissible to impeach Esther Menchaca. As presented to the state habeas court, Hubbard's report was itself rank hearsay. Complaints about uncalled witnesses are not favored in federal habeas corpus proceedings because presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative. Graves v. Cockrell, 351 F.3d 143, 156 (5th Cir. 2003), cert. denied, ___ U.S. ___, 124 S. Ct. 2160, 158 L. Ed.2d 757 (2004).

Moreover, the state habeas court also reasonably concluded that Petitioner had failed to satisfy the prejudice prong of Strickland. Absent a showing of precisely what testimony an uncalled witness would have furnished at trial, a federal habeas Petitioner complaining that his trial counsel failed to call a particular witness to testify at trial cannot hope to satisfy the prejudice prong of Strickland. See Anderson, 18 F.3d at 1221 (holding that, without a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to a trial counsel's failure to investigate, develop, or present same, i.e., a showing of exactly what the missing evidence or testimony would have been, a court cannot even begin to apply the Strickland analysis because it is impossible to determine whether the defendant was "prejudiced" by the absence of such evidence).

Thus, the state habeas court reasonably concluded that this aspect of Petitioner's ineffective assistance claims failed to satisfy either prong of Strickland.

8. Appellate Counsel Ayari's Autopsy Report

In his eleventh claim herein, Petitioner argues that his appellate counsel rendered ineffective assistance by failing to raise a point of error complaining about the trial court's refusal to admit evidence showing that Ayari's autopsy blood screening showed indications of the presence of cocaine.

a. State Court Record State Habeas Disposition

At the punishment phase of trial, Petitioner introduced evidence i.e., Defendant's Exhibit no. 10, showing that Ayari's toxicology screening showed the presence of cocaine in Ayari's system.¹⁶⁰ Contrary to the suggestions in Petitioner's pleadings herein, Petitioner never presented the state trial court or state habeas court with any evidence showing that Ayari's autopsy toxicology screening indicated that Ayari was "intoxicated" on cocaine at the time of his death. Petitioner argued before the state habeas court that his appellate counsel should have raised a point of error complaining that the trial court erroneously excluded the autopsy report during the guilt-innocence phase of trial.

160 S.F. Trial, Volume XXII, at pp. 135-36. A copy of Ayari's autopsy report was attached as an exhibit to the state habeas court's Order setting forth its findings of fact and conclusions of law at State Habeas Transcript, Volume II of II, at pp. 369-75.

At trial, Esther Garza testified during the guilt-innocence phase of trial that neither she nor Ayari had consumed cocaine on the night in question.¹⁶¹ Petitioner argued to the state habeas court that Ayari's autopsy report would have helped him impeach that portion of her testimony. During the hearing held in Petitioner's state habeas corpus proceeding, Petitioner's appellate counsel testified only that he did not recall reading anything in the record about the admissibility of evidence showing "cocaine intoxication."¹⁶² The state habeas court concluded that (1) Petitioner had failed to overcome the presumption that Petitioner's appellate counsel's decision not to present this potential point of error was the product of a reasonable strategy and (2) because Esther Garza never claimed to have personal knowledge regarding what drugs were in Ayari's bloodstream, Petitioner's complaint did not satisfy the prejudice prong of Strickland. ¹⁶³

161 S.F. Trial, Volume XVIII, testimony of Esther Garza, at pp. 183-84.

162 S.F. State Habeas Hearing, Volume II, testimony of Vincent Callahan, at p. 22.

163 State Habeas Transcript, Volume II of II, at pp. 321-22.

b. No Deficient Performance or Prejudice

The state habeas court reasonably concluded that this aspect of Petitioner's ineffective assistance claims failed to satisfy either prong of Strickland. Petitioner's appellate counsel was not constitutionally required to present every non-frivolous point of error on direct appeal that could be identified from careful scrutiny of Petitioner's trial court record. Smith, 528 U.S. at 288. As explained above, at the time of Petitioner's direct appeal, Texas courts routinely employed a harmless error test to review complaints about trial court evidentiary rulings. See Pondexter, 942 S.W.2d at 584-85 (applying former Tex. R. App. P. 81(b)(2)). Thus, Petitioner's appellate counsel necessarily possessed considerable discretion with regard to determining which points of error to assert on direct appeal. The state habeas court reasonably concluded that Petitioner failed to overcome the presumption of reasonableness that affords such decisions.

The impeachment value of Ayari's autopsy blood screening at the guilt-innocence phase of Petitioner's trial would have been minimal, at best. Garza had been a passenger in Ayari's taxicab less than an hour before the fatal shooting, and less than half an hour before Petitioner and Rivas became passengers in that vehicle. While Garza did testify that neither she nor Ayari had possessed or consumed cocaine on the night in question, she had no way of knowing what drugs, if any, Ayari had taken during the hours he had been driving his cab before he picked her up. Petitioner has never presented any court, including this one, with any evidence showing that Ayari displayed any signs of "cocaine intoxication" on the night in question or that Ayari's conduct on the night in question was in any manner aggressive, offensive, or otherwise provocative.

The state trial court's exclusion of the autopsy report from the guilt-innocence phase of trial certainly appears to have been consistent with state evidentiary rules permitting the exclusion of evidence whose probative value is substantially out-weighed by its tendency to confuse issues. Therefore, legitimate, objectively reasonable reasons existed for not presenting such a point of error on direct appeal. Under such circumstances, the state habeas court reasonably determined that the failure of Petitioner's appellate counsel to assert such a point of error did not cause the performance of said counsel to fall below an objective level of reasonableness.

Moreover, this Court concludes that, given (1) the compelling evidence of Petitioner's guilt presented by the prosecution during the guilt-innocence phase of Petitioner's trial, including the testimony of Yvonne Martinez, Esther Garza, and Esther Menchaca, (2) the inculpatory nature of Petitioner's statement implicating himself in Ayari's murder, and (3) the meager impeachment value that might have been derived from the admission of Ayari's autopsy report at that phase of trial, there is no reasonable probability that, but for the failure of Petitioner's appellate counsel to present a point of error complaining about the exclusion of Ayari's autopsy report from the guilt-innocence phase of trial, the outcome of Petitioner's direct appeal would have been any different. Even assuming that the state appellate court would have found the exclusion of Ayari's autopsy report at the guilt-innocence phase of trial to be erroneous under applicable state law, there is no reasonable probability the state appellate court would also have concluded this error exceeded the boundaries of harmless error.

9. Trial Counsel and "Victim Impact" Testimony

In his twelfth claim herein, Petitioner complains that his trial counsel failed to object to the admission of Mrs. Joanne Ayari's testimony at the guilt-innocence phase of trial on the ground that this testimony constituted "victim impact" evidence.

a. State Court Record and State Habeas Disposition

As explained at length above, Mrs. Ayari's trial testimony was limited to identifying her husband's photograph and describing, without objection from Petitioner's trial counsel, the events between the evening she dropped off her husband at his place of employment and the time the following afternoon when she was notified of his murder.¹⁶⁴ Petitioner's trial co-counsel testified during Petitioner's state habeas corpus proceeding that he chose not to object to the foregoing testimony because his strategy at trial was to be as nice as he could to her.¹⁶⁵ The state habeas court concluded the foregoing trial strategy was objectively reasonable.¹⁶⁶

164 S.F. Trial, Volume XX, testimony of Joanne Ayari, at pp. 158-68.

165 S.F. State Habeas Hearing, Volume III, testimony of Pat Hancock, at pp. 47-48.

166 State Habeas Transcript, Volume II of II, at pp. 324-25.

b. No Deficient Performance or Prejudice

Joanne Ayari presented no testimony that linked Petitioner to the murder of her husband, either directly or inferentially. Even if some portions of her trial testimony may have tangentially advised the jury of the impact of her husband's death upon her and their children, an objective review of her testimony convinces this Court that her testimony did not deprive Petitioner of a fundamentally fair trial and did not prejudice Petitioner within the meaning of Strickland. The bulk of her testimony consisted of a purely factual recitation of the events on the night of her husband's death and the following morning and was far from a naked appeal to emotion. At least some portions of her trial testimony were relevant and material to the task of identifying the victim. She also furnished evidence that provided corroboration for the testimony of others regarding the events of the night in question. For instance, Joanne Ayari's trial testimony established that her husband was working his regular shift at the time of his murder and corroborated Esther Garza's testimony that Reza Ayari had an operating cell phone in his possession on the night in question.¹⁶⁷ There is no reasonable probability that a timely objection to her trial testimony on relevance grounds or on grounds that it constituted "victim impact" evidence and a trial court ruling excluding those portions of her testimony would have had any impact whatsoever on the outcome of the guilt-innocence phase of Petitioner's trial.

167 S.F. Trial, Volume XX, testimony of Joanne Ayari, at pp. 162-63.

Therefore, the state habeas court reasonably concluded that Petitioner's trial counsel's failure to object to Mrs. Ayari's trial testimony was a reasonable trial strategy and did not cause the performance of said counsel to fall below an objective level of reasonableness. This Court independently concludes that Petitioner was not prejudiced thereby within the meaning of Strickland.

10. Trial Counsel Punishment Phase Jury Instructions

In his fifteenth claim herein, Petitioner complains that his trial counsel failed to object to alleged errors in the punishment phase jury instructions.

a. State Court Record State Habeas Disposition

Petitioner's trial counsel made no objections to the punishment phase jury instructions. In the course of his state habeas corpus proceeding, Petitioner argued that his punishment phase jury instructions were defective insofar as those instructions (1) informed the jury "you may consider all the evidence admitted at the guilt or innocence stage and punishment stage" when rendering a verdict at the punishment phase whereas the applicable state statute required an instruction directing the jury that itshall consider all such evidence; and (2) directed the jury to consider as "mitigating evidence" any evidence that reduced the Petitioner's "moral blameworthiness or deathworthiness," whereas the applicable state statute defined "mitigating evidence" solely in terms of evidence which reduced a defendant's "moral blameworthiness." Petitioner also argued that, as set forth in his punishment phase jury charge, the final capital sentencing special issue was defective insofar as it directed the jury to determine whether "there is a sufficient mitigating circumstance or are sufficient mitigating circumstances to warrant a sentence of life imprisonment," where state law mandated a final special issue that inquired into the existence of "a sufficient mitigating circumstance or circumstances" to warrant a life sentence.

During the hearing held in Petitioner's state habeas corpus proceeding, Petitioner did not question his trial co-counsel, attorney Pat Hancock, regarding the reasons why said counsel made no objections to these portions of the punishment phase jury charge. The state habeas court concluded that (1) the record was insufficient to overcome the presumption of reasonableness afforded Petitioner's trial counsel's decision not to make those objections and (2) Petitioner failed to demonstrate that he was prejudiced by these minor deviations from statutory language.¹⁶⁸

168 State Habeas Transcript, Volume II of II, at pp. 327-29.

b. No Deficient Performance or Prejudice

(1) Petitioner's Punishment Phase Jury Charge Did Not Preclude the Jury's Consideration of Mitigating Evidence

The constitutional standard for evaluating the propriety of jury instructions at the punishment phase of a capital murder trial is whether there is a reasonable likelihood the jury construed the challenged instructions in a way that prevents the consideration of constitutionally mitigating evidence. Buchanan v. Angelone, 522 U.S. 269, 276 (1998), quoting Boyde v. California, 494 U.S. at 380. "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a `commonsense understanding of the instructions in the light of all that has taken place at trial.'" Johnson, 509 U.S. at 368, quoting Boyde, 494 U.S. at 381.

While Petitioner complains that the deviations from statutory language contained in his punishment phase jury charge gave the jury "unfettered discretion" to impose or withhold the death penalty, and thereby render unreliable the verdict at the punishment phase of trial, Petitioner does not identify any specific mitigating evidence that was properly before his capital sentencing jury that he contends his jury was precluded from considering or giving effect to during its punishment phase deliberations. Nor has this Court's review of the record from Petitioner's trial revealed the existence of any such mitigating evidence.

While it is true that Petitioner's punishment phase jury instructions and Petitioner's final capital sentencing special issue deviated slightly from the Texas Legislature's statutory language, the state trial court's tweaking of that language cannot rationally be construed as having precluded the jury's consideration of any of the mitigating evidence before Petitioner's jury at the punishment phase of Petitioner's capital murder trial.

(2) No Constitutional Error Resulted from Granting the Jury "Unfettered Discretion" at the Punishment Phase of Trial

Petitioner's complaint about the trial court's substitution of the more permissive "may" for the word "shall" in the punishment phase jury instructions is likewise based on an unreasonable construction of Petitioner's punishment phase jury charge as a whole. No reasonable jury could have construed the use of the term "may," in lieu of a more emphatic "shall," in Petitioner's punishment phase jury charge as preventing the jury from considering any of the mitigating evidence then before it when answering the punishment phase special issues.

Further, nothing in the Eighth Amendment precludes a State from granting unfettered discretion to a capital sentencing jury once the defendant has been constitutionally determined to be "eligible" to receive such penalty. In Tuilaepa v. California, 512 U.S. 967 (1994), the Supreme Court held that the Eighth Amendment addresses two different, but related, aspects of capital sentencing: the eligibility decision and the selection decision. Id. at 971. The Supreme Court stated, in part, as follows:

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.

512 U.S. at 971-73 (citations omitted).

In Buchanan v. Angelone, the Supreme Court reaffirmed the vitality of the two-stage Tuilaepa analysis and rejected an argument that the Constitution mandates jury instructions at the selection stage of a capital sentencing proceeding that affirmatively structure the manner in which juries consider mitigating evidence. See Buchanan, 522 U.S. at 276 (holding that, with regard to the selection phase of a capital sentencing process, "our decisions suggest that complete jury discretion is constitutionally permissible.").

The first part of the Tuilaepa analysis, i.e., the eligibility decision, was discussed by the Supreme Court in Loving v. United States, 517 U.S. 748, 755 (1996):

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." (Citations omitted)

Under the Texas capital sentencing scheme, this constitutionally-mandated narrowing function is performed at the guilt-innocence phase of trial. See Johnson, 509 U.S. at 362; Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir.), cert. denied, 519 U.S. 854 (1996) (recognizing that the constitutional narrowing function is performed in Texas at the guilt-innocence phase of a capital murder trial). At the selection phase, a sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Buchanan, 522 U.S. at 276. However, as explained in Buchanan, the Supreme Court has never held that granting capital sentencing juries complete discretion at the selection phase violates the Eighth Amendment. Id. at 276.

The "eligibility" determination discussed in Tuilaepa and Loving occurred at the guilt-innocence phase of Petitioner's capital murder trial. Woods, 75 F.3d at 1033-34. Thus, even assuming that the minor word changes made by the state trial judge in the statutory language of Petitioner's punishment phase jury charge and final capital sentencing special issue effectively granted Petitioner's jury "unfettered discretion" at the punishment phase of Petitioner's trial, as Petitioner contends herein, that grant of "unfettered discretion" did not deprive Petitioner of the protection of any federal constitutional right.

Under such circumstances, the failure of Petitioner's trial counsel to object to the alleged errors in Petitioner's punishment phase jury charge amounted to little more than a failure to object to harmless error. This failure did not cause the performance of Petitioner's trial counsel to fall below an objective level of reasonableness and did not prejudice Petitioner within the meaning of Strickland.

11. Appellate Counsel Punishment Phase Jury Charge

In his fourteenth claim herein, Petitioner complains that his appellate counsel failed to assert, "as fundamental error," points of error challenging the same alleged errors in his punishment phase jury charge that were the subjects of his fifteenth claim discussed above.

a. State Court Record State Habeas Disposition

It is undisputed that Petitioner's trial counsel voiced no objection to the allegedly erroneous wording contained in Petitioner's punishment phase jury charge. The state habeas court concluded that Petitioner failed to (1) present any evidence showing why these allegedly fundamental errors were not presented on direct appeal, and thereby failed to overcome the presumption of reasonableness ordinarily accorded such decisions by appellate counsel, and (2) Petitioner failed to allege any facts showing how he was "prejudiced" thereby.¹⁶⁹

169 State Habeas Transcript, Volume II of II, at pp. 328-29.

b. No Deficient Performance or Prejudice

For the reasons set forth at length above, in connection with Petitioner's fifteenth claim herein, there is no reasonable probability that, but for the failure of Petitioner's appellate counsel to present the Texas Court of Criminal Appeals with points of error on direct appeal making the same, fundamentally flawed, arguments Petitioner made in his fifteenth claim herein, the outcome of Petitioner's direct appeal would have been different. Essentially, Petitioner's fourteenth claim herein complains that Petitioner's appellate counsel failed to assert frivolous legal arguments challenging Petitioner's punishment phase jury charge that were not properly preserved for state appellate review by a timely objection at trial. The state habeas court reasonably concluded that the failure of Petitioner's appellate counsel to present such points of error neither caused the performance of said counsel to fall below an objective level of reasonableness nor "prejudiced" Petitioner within the meaning of that term as used in Strickland.

12. Trial Counsel Gordon Potter's Testimony

In his sixteenth claim herein, Petitioner faults his trial counsel for presenting the testimony of a psychological expert at the punishment phase of Petitioner's trial because that expert admitted during his trial testimony that Petitioner posed a threat of violence for the foreseeable future.

a. State Court Record State Habeas Disposition

During the punishment phase of Petitioner's trial, defense expert Gordon Potter, a licensed psychological associate, testified, in pertinent part, that (1) as a result of a host of environmental factors, particularly living in poverty, growing up in overcrowded conditions in a high-crime neighborhood, and being exposed to extreme violence, drug and alcohol abuse, and sexual activity at an early age, Petitioner was extremely aggressive and very dangerous, (2) Petitioner was young, immature, judgment-impaired, and extremely violent, (3) however, most of the influences that tended to make Petitioner violent were actuarial factors that tend to diminish over time, (4) if Petitioner were isolated from society for twenty-to-forty years Petitioner might mature into a much less dangerous individual, and (5) eventually, a more mature Petitioner might be able to re-integrate into society.¹⁷⁰ Petitioner complained during his state habeas corpus proceeding that the foregoing testimony did his cause more harm than good at the punishment phase of his trial. Petitioner's co-counsel at trial testified during Petitioner's state habeas corpus proceeding that the defense team's trial strategy at the punishment phase of trial was to argue that Petitioner should be given a life sentence because of his very poor upbringing and they called Gordon Potter to testify in an effort to achieve that goal.¹⁷¹

170 S.F. Trial, Volume XXII, testimony of Gordon Potter, at pp. 61-85, 98-100, 102.

171 S.F. State Habeas Hearing, Volume III, testimony of Pat Hancock, at pp. 61 84-85.

The state habeas court concluded Petitioner failed to show his trial counsel's decision to call Potter to testify fell outside the broad range of objectively reasonable trial strategy.

b. No Deficient Performance or Prejudice

The state habeas court reasonably concluded the decision to call Potter fell within the broad range of objectively reasonable performance. It is strongly presumed that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. The prosecution presented extensive evidence during the punishment phase of Petitioner's capital murder trial detailing Petitioner's track record of persistent, violent, confrontational behavior throughout Petitioner's pretrial detention. Petitioner's jury was also presented with documentary evidence and testimony establishing that Petitioner's bloody fingerprint had been found on the dead body of Petitioner's murdered step-father and that Petitioner thereafter pleaded guilty as an accomplice to that murder. Finally, there were the circumstances of Ayari's murder, Petitioner's inability to offer the jury any semblance of sincere contrition for his murderous conduct, and Yvonne Martinez's uncontradicted testimony that the Petitioner had displayed no remorse as he described his execution-style murder of Ayari, save for Petitioner's apparent disappointment that he and Rivas had been unable to locate any money after he shot Ayari.

Under such circumstances, there was nothing objectively unreasonable with the attempt by Petitioner's trial counsel to explain through expert testimony that (1) while Petitioner presently posed a risk of continued violence, the factors that tended to make Petitioner violent resulted from his poor childhood, (2) those same factors were subject to actuarial change, and (3) given time and an opportunity to mature away from society, Petitioner's propensity for violence might very well wane or significantly diminish. The state habeas court's conclusion that Petitioner's trial counsel acted in an objectively reasonable manner in calling Potter to testify as he did was itself an eminently reasonable application of the first prong of Strickland.

Moreover, given the overwhelming evidence of Petitioner's propensity for future violence, as well as the total absence of any evidence showing that Petitioner had ever displayed any remorse for killing Ayari (or for his involvement in his step-father's death), there is no reasonable probability that, but for Petitioner's trial counsel calling Gordon Potter to testify at trial, the outcome of the punishment phase of Petitioner's trial would have been different.

13. Trial Counsel Mental Health Evaluation

In his sixteenth claim herein Petitioner complains that his trial counsel failed to have Petitioner evaluated for mental retardation in a sufficient manner to preserve an Atkins claim.

a. No Deficient Performance

Moreover, Petitioner's complaint that his trial counsel failed to have Petitioner's mental health evaluated, and more specifically that said counsel failed to have Petitioner evaluated for mental retardation, is factually inaccurate. Prior to trial, Dr. Sparks evaluated Petitioner and concluded Petitioner was not mentally retarded.¹⁷² Furthermore, Gordon Potter also evaluated Petitioner and determined that Petitioner was not mentally retarded.¹⁷³ The Supreme Court did not issue its opinion in Atkins until 2002, years after the conclusion of Petitioner's July 1995, trial. The failure of Petitioner's trial counsel to anticipate that watershed decision did not cause the performance of said counsel to fall below an objective level of reasonableness. A criminal defense counsel is not required to exercise clairvoyance during the course of a criminal trial. Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997), citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation). There was nothing objectively unreasonable with the failure of Petitioner's trial counsel to anticipate in 1995 that the Supreme Court would, seven years later, declare mentally retarded capital murderers exempt from the death penalty. At the time of Petitioner's trial, the Supreme Court had rejected that same argument only six years before. See Penry v. Lynaugh, 492 U.S. 302 (1989) (holding there was insufficient national consensus to justify a categorical prohibition on the execution of mentally retarded capital murderers). Under such circumstances, the failure of Petitioner's trial counsel to anticipate the decision in Atkins did not cause the performance of said counsel to fall below an objective level of reasonableness.

172 Trial Transcript, at pp. 147-50.

173 S.F. Trial, Volume XXII, testimony of Gordon Potter, at pp. 66-67.

b. No Prejudice

Furthermore, for the reasons set forth at length above, the failure of Petitioner's trial counsel to anticipate the Supreme Court's holding in Atkins did not "prejudice" Petitioner within the meaning of Strickland. Petitioner has presented neither this Court nor any other court with any fact-specific allegations establishing that Petitioner falls within the scope of the term "mentally retarded" as employed in Atkins. Thus, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to anticipate the Supreme Court's subsequent decision in Atkins, the outcome of either phase of Petitioner's 1995 capital murder trial would have been any different.

XII. Cumulative Error

Petitioner argues that, even assuming that none of his claims for relief herein warrant federal habeas corpus relief individually, when examined collectively, his complaints of ineffective assistance by his trial and appellate counsel, as well as his allegations of prosecutorial misconduct, cumulatively warrant a new trial for Petitioner.¹⁷⁴

174 Petitioner's Reply to Respondent's Answer and Motion for Summary Judgment, filed December 31, 2003, docket entry no. 26 ("Petitioner's Reply"), at pp. 92-93.

Federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors so infected the entire trial that the resulting conviction violates due process. Spence v. Johnson, 80 F.3d 989, 1000-01 (5th Cir.), cert. denied, 519 U.S. 1012 (1996), quoting Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992), cert. denied, 508 U.S. 960 (1993). The cumulative error doctrine provides relief only when the constitutional errors committed in the state trial court so fatally infected the trial that they violated the trial's fundamental fairness. Jackson v. Johnson, 194 F.3d 641, 655 n. 59 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000).

Insofar as Petitioner asserts a "cumulative error" theory as a separate ground for relief, that argument is foreclosed by virtue of Petitioner's candid admission that he failed to "fairly present" this claim to the state habeas court.¹⁷⁵ Petitioner thereby procedurally defaulted on his cumulative error claim herein. Coleman, 501 U.S. at 735 n. 1.

175 Petitioner's Reply, at p. 92.

Moreover, in order to satisfy the cumulative error rule in the Fifth Circuit, a federal habeas Petitioner must show that (1) the state trial court actually committed errors, (2) the errors are not procedurally barred, (3) the errors rise to the level of constitutional deprivations, and (4) the record as a whole reveals that an unfair trial resulted from those errors. Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996), cert. denied, 520 U.S. 1140 (1997). As this Court's discussion of the many details of Petitioner's trial set forth at great length above makes clear, none of the alleged errors by the Petitioner's state trial court or the alleged deficiencies in the performance of Petitioner's trial and appellate counsel identified by Petitioner rise to the level of a violation of Petitioner's constitutional rights and the record of Petitioner's trial, as a whole, reveals that proceeding was not unfair in any constitutional sense.

Petitioner attempts to aggregate more than a dozen assertions of ineffective assistance by his trial and appellate counsel, but that effort is in vain because this Court has independently determined that, without exception, these complaints do not satisfy the prejudice prong of Strickland, either individually or when viewed collectively, as required by proper Strickland prejudice analysis.

A petitioner who attempts to cumulate trial court errors that do not rise to the dimension of a violation of federal constitutional rights has presented nothing to cumulate. At Petitioner's trial, the prosecution presented compelling evidence of Petitioner's guilt, which was fully corroborated by Petitioner's own voluntary statement. Most of Petitioner's complaints of prosecutorial misconduct, alleged Brady violations, and claims of ineffective assistance during his trial and direct appeal are premised on inaccurate recitations of the operative facts from Petitioner's trial. Even when examined collectively, Petitioner's relatively few, properly exhausted, non-procedurally defaulted, non-frivolous claims herein do not establish that he was deprived of a fundamentally fair trial. For the foregoing reasons, Petitioner's assertion of cumulative error does not warrant federal habeas relief.

XIII. Evidentiary Hearing

Petitioner also requests an evidentiary hearing before this Court.¹⁷⁶ The AEDPA limits the circumstances in which a habeas corpus petitioner may obtain an evidentiary hearing in federal court, imposing a significant burden on petitioners who fail to diligently develop the factual bases for their claims in state court. See Williams v. Taylor, 529 U.S. 420, 433-34 (2000) (prisoners who are at fault for the deficiency in the state court record must satisfy a heightened standard to obtain an evidentiary hearing); 28 U.S.C. § 2254(e)(2). "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Williams, 529 U.S. at 437.

176 Petitioner's Reply, at pp. 93-98.

Under the AEDPA, if a petitioner failed to develop the factual basis of a claim in state court, he is entitled to a federal evidentiary hearing only if (1) the claim relies on either (a) a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence and (2) the facts underlying the claim are sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. Foster v. Johnson, 293 F.3d 766, 775 n. 9 (5th Cir.), cert. denied, 537 U.S. 1054 (2002); 28 U.S.C. § 2254(e)(2).

Petitioner was afforded a full and fair opportunity to develop and litigate his claims for relief herein during the evidentiary hearing held in his state habeas corpus proceeding. Petitioner does not identify any new factual theories supporting his claims for relief that were unavailable at the time Petitioner filed and litigated his state habeas corpus claims. Petitioner does not offer any rational explanation for his failure to fully develop any and all evidence supporting his properly exhausted claims during his state habeas evidentiary hearing. Nor does Petitioner identify any additional evidence concerning his properly exhausted claims that he and his state habeas counsel were unable to develop and present to Petitioner's state habeas court despite the exercise of due diligence on their part. Under such circumstances, Petitioner is not entitled to a federal evidentiary hearing to further develop the facts supporting his properly exhausted claims herein.

Insofar as Petitioner requests an evidentiary hearing for the purpose of developing supporting evidence for his plethora of unexhausted claims herein, that request is frivolous. This Court may not grant federal relief on an unexhausted claim under the AEDPA and Petitioner has not furnished this Court with any fact-specific allegations showing that he was unable, despite the exercise of due diligence, to identify, develop, and present evidence supporting the vast majority of his unexhausted claims herein during his state habeas corpus proceeding. Nor has Petitioner identified any external impediment that prevented him from presenting the state habeas court with the vast majority of Petitioner's unexhausted claims herein, such as Petitioner's unexhausted "knowing use of perjured testimony" claim and Petitioner's multiple, unexhausted Brady claims.

In sum, Petitioner has failed to allege sufficient specific facts to establish that he exercised due diligence during his state habeas corpus proceeding to identify, develop, and present evidence supporting his myriad unexhausted claims herein. Nor has Petitioner alleged any specific facts showing that he was unable, despite the exercise of due diligence, to present the state habeas court with any and all new evidence that he wishes to furnish this Court in support of Petitioner's properly exhausted claims herein. Under such circumstances, Petitioner is not entitled to an evidentiary hearing in this Court.

XIV. Certificate of Appealability

Before a Petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the Petitioner must obtain a "Certificate of Appealability" ("CoA"). Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253(c)(2). 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). 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. Id.

A CoA will not be granted unless the Petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, ___ U.S. ___, ___, 124 S. Ct. 2562, 2569, 159 L. Ed.2d 384 (2004). To make such a showing, the Petitioner need not show that he will prevail on the merits but, rather, demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Id. at ___, 124 S. Ct. at 2569. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. Miller-El, 537 U.S. at 338 ("[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."). 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 that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional rightand whether this Court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that 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).

Viewed in proper context, there is no basis for disagreement among jurists of reason with regard to this Court's disposition of Petitioner's multiple, unexhausted, procedurally defaulted claims herein. Despite this Court's admonitions regarding the limitations imposed by the AEDPA, Petitioner chose to present this Court with a host of unexhausted Brady claims, as well as numerous purportedly constitutional claims to which his trial counsel made no timely objection at trial. In addition, upon careful review of the record from Petitioner's trial, the factual predicate for many of Petitioner's otherwise properly exhausted claims completely evaporate. The vast majority of Petitioner's complaints of ineffective assistance by his trial and appellate counsel fail to rise above the level of hyper-technical nit-picking. With only two exceptions, none of Petitioner's complaints about the performance of his trial and appellate counsel address matters that were outcome-determinative of either Petitioner's trial or direct appeal. Reasonable jurists could not help but agree that Petitioner's innovative constructions of the Supreme Court's Eighth Amendment jurisprudence are barred by the retroactivity doctrine of Teague.

Nonetheless, two of Petitioner's ineffective assistance claims herein are sufficiently complex and invoke enough hesitancy by this Court over its disposition to warrant issuance of a CoA.

Petitioner's first claim, i.e., that his appellate counsel rendered ineffective assistance by failing to properly present a challenge to the state trial court's denial of Petitioner's pretrial motion to suppress Esther Garza's in-court identification testimony, could be subject to a different disposition than the one this Court has given it and, therefore, deserves encouragement to proceed further.

The most important witness against Petitioner at trial was Esther Garza, the surviving victim of Petitioner's and Sara Rivas's assault. Petitioner's trial counsel did everything possible to suppress Esther Garza's in-court identification of Petitioner as one of her and Ayari's assailants based on Petitioner's contention that the show up on January 24, 1994 impermissibly tainted Garza's subsequent selection of Petitioner's photograph from a photo array on March 30, 1994. Petitioner's trial counsel filed a motion urging this argument and presented extensive supporting testimony. Following an extended pretrial hearing on Petitioner's multiple motions to suppress Garza's identification testimony the state trial court issued his ruling denying Petitioner's motion to suppress Garza's identification testimony. The state trial court made a docket entry on May 23, 1995 reflecting that ruling.¹⁷⁷

177 Trial Transcript, at p. 3.

Petitioner's appellate counsel presented the Texas Court of Criminal Appeals with a point of error on direct appeal complaining about the trial court's denial of Petitioner's pretrial motion to suppress Garza's identification testimony. However, the Texas Court of Criminal Appeals declared that Petitioner had procedurally defaulted on this point of error by failing to identify where in the trial court record the state trial court's adverse ruling on Petitioner's pretrial motion to suppress Garza's in-court identification testimony could be located. For reasons that remain elusive to this Court, Petitioner's appellate counsel's subsequent motion for rehearing on direct appeal failed to call the state appellate court's attention to the state trial court's May 23, 1995 docket entry.

Petitioner presented the state habeas court with a claim for relief asserting that his appellate counsel's performance in that regard constituted ineffective assistance. The state habeas trial court concluded that Esther Garza's in-court identification testimony was "clearly admissible," and, therefore, this ineffective assistance claim did not satisfy the prejudice prong of Strickland. This Court has concluded that the state habeas court's latter conclusion was a reasonable application of Strickland's prejudice prong. Nevertheless, this Court's analysis of the state habeas court's application of the prejudice prong of Strickland is premised on a resolution of the merits of Petitioner's underlying due process claim that is subject to a different resolution by reasonable jurists.

There can be no dispute that the show up held January 24, 1994 was, by its very nature, suggestive. The State of Texas has never furnished any rational justification for the decision by Bexar County law enforcement officers to display Petitioner and Yvonne Martinez to Esther Garza in the manner in which they did. While this Court has concluded that Garza's subsequent selection of Petitioner's photograph from a photo array, along with Garza's subsequent in-court identification of Petitioner, were not unconstitutionally tainted by virtue of the January 24, 1994 show up, under the facts of Petitioner's case, that determination could be debated by reasonable jurists. This Court's determination that the state habeas court reasonably concluded, under applicable Supreme Court authority, that Garza's trial testimony was properly admitted is itself subject to debate among reasonable jurists. Thus, Petitioner is entitled to a CoA on his first claim herein.

Petitioner is also entitled to a CoA on his fourth claim herein, in which Petitioner complained about his appellate counsel's failure to present a point of error on direct appeal arguing that the trial court erroneously admitted testimony regarding Petitioner's oral statement on April 14, 1994 identifying the caliber of the guns used during the shootings.

Petitioner's trial counsel filed a pretrial motion to suppress all oral statements made by Petitioner. Following an extended evidentiary hearing, the state trial court ruled that all of Petitioner's oral statement were inadmissible, save for Petitioner's comment regarding the caliber of the weapons in question. The state trial court's basis for that ruling was its determination that the Petitioner's comment about the caliber of the guns in question constituted factual information unknown to law enforcement officers at the time Petitioner made the statement that was later shown to be accurate. At the time of Petitioner's trial, Texas law, specifically Article 38.22 of the Texas Code of Criminal Procedure, generally excluded oral statements made as a result of a custodial interrogation. However, an exception to this general rule existed for oral statements that included factual assertions about matters that were unknown to law enforcement officers at the time the statement was made but that were later determined to be accurate. Compare Dansby v. State, 931 S.W.2d 297, 298-99 (Tex.Crim.App. 1996) (holding inadmissible oral custodial factual statements that merely confirmed information law enforcement officers had previously received from eyewitnesses) with Port v. State, 791 S.W.2d 103, 108 (Tex.Crim.App. 1990) (holding admissible a defendant's custodial admission that he had shot the victim twice in the head where the victim's subsequent autopsy corroborated that fact).

The problem with the state trial court's ruling is that the state court records now before this Court, including the trial testimony of law enforcement officers who investigated the scene of Ayari's shooting and abandoned taxicab, along with the affidavit accompanying Petitioner's arrest warrant, demonstrate that Bexar County law enforcement officers knew the calibers of the weapons used to shoot Ayari and Garza long before Petitioner made his statement on April 14, 1994. Thus, the state trial court's ruling admitting the Petitioner's oral statement in question appears to have been a clear violation of applicable state evidentiary rules.

When Petitioner presented the state habeas court with a claim for state habeas relief criticizing his state appellate counsel for failing to assert a point of error on direct appeal complaining about the erroneous admission of the Petitioner's oral statement, the state habeas court concluded that Petitioner procedurally defaulted on this claim by failing to re-urge his Article 38.22 objection at trial and, instead, asserting only a hearsay objection to the admission of the testimony at trial. The state habeas court acknowledged the long-standing rule in Texas recognizing that a defendant who obtains an adverse ruling on a pretrial motion to suppress need not re-urge the same objection when the same evidence is offered for admission at trial. Nonetheless, the state habeas court held that, by raising a hearsay objection at trial, Petitioner's trial counsel effectively waived any complaint about the trial court's denial of Petitioner's pretrial Article 38.22 motion to suppress.

This Court's independent research has disclosed no instances other than Petitioner's case in which a Texas appellate court has applied such a rule of procedural default to foreclose merits review of an Article 38.22 claim following a trial court's formal denial of a pretrial motion to suppress. Accordingly, this Court concluded that the state habeas court's procedural default ruling was not a barrier to federal habeas review of the merits of this aspect of Petitioner's ineffective assistance claims. See Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (holding that application of state procedural default rules bars federal habeas merits review of a claim only when the state procedural default rule is firmly established and regularly followed).

Unencumbered by the state habeas court's procedural default ruling, this Court proceeded to address the merits of Petitioner's underlying complaint that his oral statement on April 14, 1994 was erroneously admitted during his trial. This Court concluded that, under applicable state harmless error standards, there was no reasonable probability that, but for the failure of Petitioner's appellate counsel to present such a point of error on direct appeal the outcome of Petitioner's direct appeal would have been any different. This Court's determination was premised on the compelling evidence of Petitioner's guilt presented during the guilt-innocence phase of Petitioner's trial and the relative unimportance to the prosecution's case-in-chief of this evidence. Likewise, this Court pointed out that Petitioner's trial counsel successfully blunted the inculpatory impact of Petitioner's comment about gun calibers by eliciting evidence showing that the caliber of the weapon used to murder Ayari was a matter of public knowledge long before Petitioner's arrest. In all candor, however, this Court's application of state harmless error standards and its ultimate conclusion that the failure of Petitioner's appellate counsel to challenge the admission of Petitioner's oral statement on direct appeal did not "prejudice" Petitioner within the meaning of Strickland are both subject to debate by reasonable jurists. Therefore, Petitioner's fourth claim herein deserves encouragement to proceed further.

In all other respects, this Court's resolution of Petitioner's claims for relief herein are not subject to a different disposition by reasonable jurists.

Accordingly, it is hereby ORDERED that:

1. All federal habeas corpus relief requested in Petitioner's pleadings in this cause¹⁷⁸ is DENIED.

178 Docket entry nos. 8, 19, 26.

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

3. Respondent's motion for summary judgment, filed September 3, 2003,¹⁷⁹ is GRANTED.

179 Docket entry no. 23.

4. Petitioner is GRANTED a Certificate of Appealability on his first and fourth claims herein but, in all other respects, Petitioner is DENIED a Certificate of Appealability.

5. All other pending motions are DISMISSED AS MOOT.

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

SIGNED.