Bagwell v. Cockrell

Full title: DENNIS WAYNE BAGWELL, TDCJ No. 999209, Petitioner, V. JANIE COCKRELL…

Court: United States District Court, W.D. Texas

Date published: Aug 19, 2003

CIVIL NO. SA-99-CA-1133-OG (W.D. Tex. Aug. 19, 2003)

Opinion

CIVIL NO. SA-99-CA-1133-OG

August 19, 2003

MEMORANDUM OPINION AND ORDER DENYING RELIEF

ORLANDO GARCIA, District Judge

Petitioner Dennis Wayne Bagwell filed this federal habeas corpus action pursuant to Title 28 U.S.C. § 2254 seeking review of his November, 1996, conviction for capital murder and his sentence of death.

I. Synopsis

As grounds for relief, petitioner argues that (1) his rights under the Fourteenth Amendment's Due Process and Equal Protection Clauses, as well as the Eighth Amendment, were violated when the state trial court refused to permit his trial counsel to voir dire potential jurors regarding their knowledge of Texas parole law and the state trial court refused to instruct the jury at the punishment phase of petitioner's trial regarding the length of time petitioner would have to serve following imposition of a life sentence before becoming eligible for release on parole, (2) his trial counsel rendered ineffective assistance by failing to (a) interview the prosecution's chief witness prior to trial and (b) investigate, discover, develop, and present adequate mitigating evidence regarding petitioner's abusive childhood, (3) petitioner was improperly shackled during trial, (4) petitioner was coerced by his trial counsel into not testifying at trial, (5) the Texas statute excluding jury instructions and consideration of parole eligibility at the punishment phase of petitioner's trial violated due process, equal protection and Eighth Amendment principles, (6) the Texas capital sentencing special issues are unconstitutionally vague with regard to their treatment of "mitigating evidence," (7) the Texas capital sentencing special issues are unconstitutionally vague, (8) the refusal of the Texas Court of Criminal Appeals to engage in proportionality review of death sentences violates due process principles, and (9) the Texas twelve:ten rule violates due process principles insofar as Texas capital jurors are not informed regarding the effect of a single holdout juror at the punishment phase of a capital murder trial.¹

1 See docket entry nos. 9 and 10.

For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief from this Court under the Anti-Terrorism and Effective Death Penalty Act of 1996 nor a Certificate of Appealability on any of his claims herein.

II. Statement of the Case

A. Factual Background

1. The Offense

On the morning of September 20, 1995, Ron Boone returned home to Wilson County to find the dead body of his common law wife Leona McBee on the floor of the couple's trailer home.² Leona had been beaten and strangled to death.³ Inside a bedroom at the rear of the trailer, Boone found an even more gruesome scene — the partially nude bodies of Leona's daughter Libby Best and 4-year-old granddaughter Reba Best and the nude body of Boone's teenage granddaughter Tassy Boone.⁴ Tassy Boone had been beaten and strangled to death; her body showed signs of sexual assault.⁵ Libby Best had been shot twice in the head from close range.⁶ Reba Best died of massive blunt force trauma to the back of her head.⁷

2 See Statement of Facts from the petitioner's trial (henceforth "S.F. Trial"), Volume 28 of 46, testimony of Ron Boone, at pp. 86-96.

3 The medical examiner testified that Leona suffered (1) a depressed skull fracture just above the right ear with accompanying lacerations, bruising, and extensive subdural hemorrhage, (2) fractures in the area near the base of the skull, (3) fractures to the hyoid bones in the neck, (4) a fractured cervical spine with accompanying bleeding into the spinal cord, (5) multiple injuries to the head and neck, including contusions and abrasions to both sides of the neck, abrasions to the left side of the face, abrasions to the forehead, abrasions to the left eye, facial bruises and congestion in the face consistent with strangulation, bruising to the front of the neck, bruising and lacerations of the upper lip, and injuries to the thyroid cartilage, (6) injuries to both hands and arms, the back of her right shoulder, and left leg, (7) defensive injuries to the back of her right hand, back of her left elbow, and front of her left knee, (8) multiple abrasions to the upper left chest, and (9) an abraded bruise to the under surface of the chin. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 330-51 and 378-97.
The medical examiner testified further that (1) Leona's injuries were extreme and more typical of the kind of injuries sustained in a car wreck than in an assault, (2) a number of Leona's injuries appeared have been caused by repeated blows from a patterned object, (3) any of several objects found at the crime scene might have caused some or all of Leona's injuries, including a guitar neck, a claw hammer, a two-handled flexible exercise bar, and a rifle, (4) there was evidence of manual strangulation with a much greater degree of force than was necessary to kill, and (5) the injuries to Leona's face and neck were typical of this "overkill." Id., at pp. 338-40 and 378-97.
A second forensic expert agreed with Dr. Rivercomb that the butt plate of the rifle introduced into evidence as State's Exhibit 112 could have caused the injuries to Leona's upper chest wound. Compare S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at p. 513 with S.F. Trial, Volume 35 of 46, testimony of William Russell Oliver, at pp. 1798-99.

4 See S.F. Trial, Volume 28 of 46, testimony of Ron Boone, at pp. 98-101.

5 The medical examiner testified that Tassy had sustained (1) multiple blows to the head which did not fracture the skull but which did cause bleeding around the brain, (2) a fractured cervical spine, fractured cartilage around the spine, and accompanying bleeding in the neck, (3) multiple contusions and abrasions to the front, back, and both sides of the neck and accompanying hemorrhage, (4) multiple abraded contusions to the face, chin, and scalp, (5) multiple contusions and abrasions to the back, shoulders, and legs, (6) congestion of the lungs, pharynx, and mucous membranes of the face and eyes, and (7) abrasion and contusion to the vagina, bruising around the cervix, and some hemorrhage.See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 405-10.
The medical examiner testified further that (1) Tassy's neck showed signs of manual strangulation, including rounded contusions and hemorrhage, (2) as with Leona, the trauma to Tassy's neck was beyond that which was necessary to strangle someone to death, (3) the vertebral arteries were lacerated when Tassy's spine was fractured, (4) significant blunt force trauma to Tassy's head caused subarachnoid hemorrhage, (5) Tassy's skin also showed signs of patterned injury from an object with a rounded edge, (6) any of several items found at the crime scene could have caused some or all of these patterned injuries, including the claw hammer, guitar neck, rifle, exercise bar, (7) finger tips were the likely sources of the rounded contusions on Tassy's neck, (8) the claw hammer may have caused a pair of puncture wounds to Tassy's jaw, (9) the injuries to Tassy's vagina and internal bruising to her cervix were consistent with penetration, although no semen was recovered during her autopsy, (10) lacerations and abrasions to Tassy's lips were consistent with strangulation, and (11) Tassy's neck showed signs of extreme force employed to strangle her. Id., at pp. 405-41.
A second forensic expert testified that (1) he counted at least twenty two separate injuries to Tassy's body, (2) some of those injuries were made by blows from a circular object, possibly a hammer, (3) some of Tassy's injuries resulted from blows by a flat, round object, possibly the neck of the guitar recovered by law enforcement agents, (4) still other of her injuries resulted from blows by a flat, rectangular object, possibly the broken trigger guard portion of the rifle, (5) lacerations to Tassy's head were possibly caused by the impact of a flat-headed-screw-like object, (6) injuries to Tassy's shoulder appeared to match portions of the pattern on the sole of the petitioner's tennis shoes, (7) still other of Tassy's injuries could have been caused by blows from the butt plate of the rifle and the claw portion of a hammer, respectively, and (8) he could not rule out manual strangulation as the cause of Tassy's neck injuries. See S.F. Trial, Volume 35 of 46, testimony of William Russell Oliver, at pp. 1800-20, 1824-43, and 1849-55.

6 The medical examiner testified that (1) Libby had been shot twice in the left side of her head, (2) one bullet entered her head just above and diagonal to her left eye, (3) this bullet was fired from a distance of two-to-three feet, completely traversed Libby's brain in an upward direction, and caused fragmenting of the top of her skull, (4) the other bullet was fired while the gun was in close contact with her left ear, (5) rapidly expanding gases caused extensive fracturing of the skull at this point of entry, (6) this bullet also passed completely through the brain and penetrated the brain stem, and (7) both bullets fragmented once they entered the skull. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 444-78.

7 The medical examiner testified that (1) the back of Reba's neck, neck, and shoulders displayed signs of soft tissue damage, hemorrhage, and crushing from blunt trauma, (2) the fracturing of the back and base of Reba's skull was quite extensive, including the opening for the spinal cord, the occipital bone, and radiating forward to the right ear, (3) the cause of Reba's death was blunt force trauma to the back of her head, (4) there were rounded contusions on the back of Reba's head and left shoulder, (5) Reba suffered brain hemorrhage and subdural hemorrhage, (6) there were also patterned contusions to the beck of her buttocks and legs indicating that she had been beaten or thrown against an object with a distinctive pattern on its surface, and (7) the exercise bar found at the scene could have caused some or all of the injuries to Reba's upper back, head, and neck. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 479-94.
A second forensic expert testified that (1) Reba's injuries resulted from blows delivered by a tubular object or the flat surface of an object with rounded ends or sides, possibly the exercise bar recovered by law enforcement agents. See S.F. Trial, Volume 35 of 46, testimony of William Russell Oliver, at pp. 1860-65.

2. The Indictment

On November 21, 1995, a Wilson County grand jury indicted petitioner Dennis Bagwell, Leona McBee's son and Libby Best's half- brother, in cause no. 95-11-141-CR on a charge of capital murder, to wit, murdering more than one person during the same criminal transaction.⁸

8 See Transcript of pleadings, motions, and other documents filed in petitioner's state trial court proceeding (henceforth "Transcript"), at pp. 1-4. More specifically, the indictment alleged that the petitioner (1) intentionally and knowingly caused the death of Leona McBee by (a) striking her with a firearm, hammer, guitar, exercise device, metal object, or unknown object, (b) causing blunt trauma to Leona's head and neck in an unknown manner, (c) strangling her with his hand and hands, or (d) strangling her in an unknown manner; (2) intentionally and knowingly caused the death of Tassy Boone by (a) strangling her with his hand and hands or in an unknown manner, (b) striking her with a hammer, guitar, firearm, exercise device, metal object, unknown object, or in an unknown manner, or (c) causing blunt trauma to the head and neck in an unknown manner; (3) intentionally and knowingly caused the death of Libby Best by shooting her with a firearm; and (4) intentionally and knowingly caused the death of Reba Best by (a) striking her with an exercise device, hammer, firearm, guitar, metal object, unknown object, or in an unknown manner or (b) causing blunt trauma to her head in an unknown manner.

3. Change, of Venue,

At the conclusion of an evidentiary hearing held August 14, 1996, the state trial court granted the petitioner's motion for change of venue in part, directing the transfer of the case to Atascosa County.⁹

9 See S.F. Trial, Volume 7 of 46, at p. 343; and Transcript, at p. 339. The cause was re-filed in the 218th Judicial District Court of Atascosa County as cause no. 96-08-0162-CRA.See Transcript, at p. 340.

4. Guilt-Innocence_ Phase _of_ Trial

Testimony at the guilt-innocence phase of petitioner's trial commenced on October 21, 1996.

a. The Prosecution's Case

On direct examination, Victoria Wolford, the petitioner's girlfriend and fellow crack cocaine abuser, testified that (1) she was with the petitioner on September 20, 1995, (2) the petitioner borrowed money from a co-worker and his supervisor which the petitioner used to purchase crack cocaine, (3) after she and the petitioner consumed the crack cocaine, they went to the Boone residence, arriving there around two a.m., (4) after she used the restroom in the Boone residence, she walked over to a travel trailer located behind the residence and laid down because she had a headache, (5) she heard noises and looked out the window of the travel trailer into the residence, (6) she saw Leona getting ice for the petitioner's ice chest, (7) the petitioner came to the travel trailer a few minutes later and expressed great distress that his mother had given him only twenty dollars, (8) the petitioner re-entered the residence and she saw him strike Leona from behind and Leona fall, (9) after the petitioner went into a different room of the residence, Wolford heard a loud, cracking sound, followed by a series of screams she recognized as coming from Libby Best and, then, two popping noises, (10) she heard Tassy Boone say "no," Reba scream, and, then, a period of silence, (11) she next heard Leona tell the dogs to be quiet and, then, heard Leona gasping for breath, (12) she saw and heard the petitioner strike Leona with a long-handled gun or rifle, (13) at that point, she quit watching and went back inside the travel trailer, (14) she next heard the petitioner yell for her, (15) when she exited the travel trailer, the petitioner was putting various items into his car, including a bow and arrow, a long gun, a blanket, and Libby's purse, (16) the petitioner directed Wolford to go inside the residence and get a soft drink can that was on the table, (17) when she entered the residence, she saw Tassy Boone, wearing a shirt and shorts, laying in the living room area facing toward the bathroom, (18) she exited the residence and asked the petitioner if he was ready to go, (19) the petitioner replied "no" and said he could not get Tassy to stop breathing, (20) the petitioner went and got some towels, wet the towels with a water hose, and wiped off his legs and arms, as well as his hammer, (21) Wolford asked him again if he were ready to go and he again said "no," adding that he had to go back inside and wipe off his fingerprints, (22) after a while, the petitioner returned to the car and they drove away, toward LaVernia, (23) they stopped along Highway 87 at a bridge where the petitioner threw away several items, including the rifle (which was in pieces), the bow and arrow, the blanket, and the tennis shoes he had worn at the Boone residence, (24) they resumed driving toward San Antonio and the petitioner threw a pair of socks out the window of their moving vehicle, (25) the petitioner stopped the vehicle at one point between San Antonio and New Braunfels where Wolford and the petitioner went through Leona's and Libby's purses, respectively, looking for money, (26) when they reached New Braunfels, the petitioner stopped their vehicle under a bridge by the river, threw the purses, his shorts, and a zip-lock bag containing coins into the river, and changed into blue jeans, boots, and a western shirt, (27) thereafter, they resumed traveling north through Austin and arrived at their destination of Marshall, Texas, around noon the next day, after stopping briefly to rest and another time when the petitioner deliberately ran off the road in an attempt to create the appearance of an accident scene, and (28) the petitioner informed her that he took items from the Boone residence to make it look like a robbery and a rape of Tassy.¹⁰

10 See S.F. Trial, Volume 30 of 46, testimony of Victoria Wolford, at pp. 545-89 and 600.

On both direct and cross-examination, Wolford admitted that (1) she gave false statements to the law enforcement officers who interviewed her immediately after the murders in Wilson County but insisted that she had done so because she was terrified of the petitioner, whom she testified had beaten her and threatened to kill her if she told anyone what she knew, and (2) she failed to tell anyone what she knew about the crimes until the petitioner was arrested and she was taken into protective custody,¹¹ Another prosecution witness corroborated Wolford's testimony regarding petitioner's threats against her.¹²

11 Id., testimony of Victoria Wolford, at pp. 589-92, 594-96, 600-01, 626, 640-41, 647, 655, and 662-65.

12 More specifically, Christine Norma Posey testified that (1) the Saturday before the murders, she and Wolford discussed leaving Posey's husband and the petitioner and going to Dallas, (2) she and her husband later worked things out, and (3) the petitioner later told her there was no way she and Wolford would have made it out of Bexar County alive if they had attempted to flee because he would have killed them before they could do so. See S.F. Trial, Volume 34 of 46, testimony of Christine Norma Posey, at pp. 1618-25.

Several law enforcement officers testified that they recovered numerous items taken from the Boone residence from both of the locations near bridges identified by Victoria Wolford, including a pair of tennis shoes and a pair of teal shorts.¹³ An expert witness testified that the sole of one of the tennis shoes found at the location identified by Wolford along Highway 87 matched a bloody shoe print found at the crime scene under the body of Tassy Boone.¹⁴ Ron Boone testified that he had seen the petitioner wearing both the tennis shoes and the teal shorts.¹⁵ Other witnesses gave testimony linking the petitioner to the tennis shoes in question.¹⁶ A pair of prosecution witnesses testified that the petitioner had threatened to kill his mother just days before her murder.¹⁷

13 More specifically, Texas Ranger Joe Peters testified that, the day the petitioner was arrested, Victoria Wolford identified two locations where the petitioner had discarded items he had taken from the Boone residence, he sent officers to both locations, and they were quickly able to find the items Wolford had said were there. See S.F. Trial, Volume 30 of 46, testimony of Joe Peters, at pp. 756-62.
Wilson County Sheriff's Department investigator Calvin Pundt identified numerous photographs of various items taken from the Boone residence which he and other law enforcement officers found at one of the locations indicated by Wolford (near a creek bridge along Highway 87 north of LaVernia), including an Indian-style blanket, a piece of a bra, the broken neck of a guitar, the base of the same guitar, several broken pieces of a rifle, an exercise bar, a bow and several arrows, and a hammer, gee S.F. trial, Volume 30 of 46, testimony of Calvin Pundt, at pp. 763-805; and Volume 31 of 46, testimony of Calvin Pundt, at pp. 812-25. Deputy Pundt also testified that law enforcement officers found a pair of tennis shoes at the same scene. Id., at p. 786. Ron Boone identified the Indian Blanket, bow and arrows, exercise bar, broken .22 caliber rifle, broken guitar, and hammer as items which had been in his and Leona's residence prior to her death.Id., Volume 34 of 46, testimony of Ronald Boone, at pp. 1647-57.
Texas Ranger Gerardo De Los Santos testified that he went to the other location indicated by Wolford, i.e., near a bridge over the Guadalupe River in New Braunfels, where he found Leona McBee's Social Security card and a team of divers found numerous other items. See S.F. trial, Volume 31 of 46, testimony of Gerardo de Los Santos, at pp. 826-36 879-87. Members of the dive team testified regarding each of the items they recovered frm the river at that same location, including a pair of MCI phone cards issued to Ron Boone, Leona McBee's library card, a soiled red towel, Leona McBee's driver's license, a clear plastic bag containing coins, a pair of teal shorts, a receipt bearing the handwritten notation "from Mom for Dennis Bagwell," and a Blue Cross Blue Shield insurance card issued to Ron Boone. See S.F. Trial, Volume 31 of 46, testimony of Agapito Lopez, at pp. 838-45; testimony of Ruben Duran, at pp. 846-50; testimony of Lee Vaughn, at pp. 851-59; testimony of Alan Riddick, at pp. 859-68; testimony of Charles Goble, at pp. 868-72; and testimony of Richard De Leon, III, at pp. 872-77. Ron Boone identified the red towel as having come from his residence and testified that Leona kept her Social Security card, library card, and driver's license in her purse, along with the insurance and phone cards found in the Guadalupe River. Id., Volume 34 of 46, testimony of Ronald Boone, at pp. 1657-61.

14 See S.F. Trial, Volume 32 of 46, testimony of Juan Antonio Rojas, at pp. 1313-39. More specifically, this witness testified that unique characteristics found on the sole of State's exhibit 140A, one of the tennis shoes in question, matched a bloody shoe print found on a bed sheet pulled from under Tassy Boone's body and that the shoe print appeared to be a "reverse print" made when the sheet fell on a bloody shoe print and picked up a mirror image of the actual shoe print.Id., at pp. 1333. This same witness also testified that the sole pattern on the tennis shoes in question matched a sole impression found on the trunk of the petitioner's vehicle. Id., at pp. 1341-44.

15 See S.F. Trial, Volume 34 of 46, testimony of Ronald Boone, at p. 1658.

16 More specifically, Steve Des Lauriers, a friend of the petitioner, identified the tennis shoes as ones that had been taken from his residence, to which the petitioner had once had a key. See S.F. Trial, Volume 34 of 46, testimony of Steve Des Lauriers, at pp. 1605-07. Michael Posey, another friend of the petitioner, testified that, on one occasion in September, 1995 near the date of the murders, he saw the petitioner wearing a pair of tennis shoes which resembled the pair found at the location along Highway 87 identified by Victoria Wolford.Id., Volume 34 of 46, testimony of Michael Ray Posey, at pp. 1634-38.

17 More specifically, Ida Marie Kelly testified that (1) she had heard the petitioner threaten to kill his mother on two occasions but (2) the petitioner, like his mother, is a loud, profane, individual prone to blowing up and likes to frighten people by making meaningless threats, and (3) she overheard the petitioner engaged in a very civil telephone conversation with his mother late on the evening of September 19, 1995.Id., testimony of Ida Marie Kelly, at pp. 1539, 1541-45, 1547, 1550-55, 1561, and 1571-73. Mrs. Kelly also testified that she had seen the petitioner wearing a pair of shorts that resembled the teal shorts recovered from the Guadalupe River where Wolford had indicated the petitioner changed his clothing. Id., Volume 35 of 46, testimony of Ida Marie Kelly, at pp. 1972-73. Lexy Barton testified that (1) she heard the petitioner ranting and raving, threatening to kill his mother and burn the trailer, (2) when she asked the petitioner shortly after the murders if he had killed his family, the petitioner laughed, and (3) when she saw Vicky Wolford that same night shortly after the murders, Wolford appeared trembling, scared, and was curled up in a fetal position on the couch. See S.F. Trial, Volume 33, of 46, testimony of Lexy Barton, at pp. 1575-82 1590.

A firearms expert testified that one of the bullet fragments removed from the cranium of Libby Best during her autopsy appeared to have been fired through the barrel of the shattered .22 rifle found at the location along Highway 87 identified by Wolford and that two spent shell casings found at the same location appeared to have been fired by the same rifle.¹⁸

18 See S.F. Trial, Volume 33 of 46, testimony of Ronald D. Crumley, at pp. 1498-1508.

b. The Defense's Case

A defense psychiatric expert testified that (1) based on his review of the crime scene evidence and information furnished to him by persons who knew them, he believed Tassy Boone had been a "spirited young lady," Libby Best had been "spirited," and Leona McBee had not been a quiet person and (2) cocaine uses raises a person's energy level and aggressiveness and those high on cocaine can experience manic episodes involving hyperactivity, during which the person is unable to think clearly and may experience psychotic, paranoid, behavior.¹⁹

19 See S.F. Trial, Volume 35 of 46, testimony of Dr. Michael Arambula, at pp. 1908-32.

Numerous witnesses testified regarding the petitioner's depressed, upset, demeanor in the days following the discovery of the bodies of his mother, his half-sister, his niece, and Tassy Boone.²⁰

20 More specifically, Ida Marie Kelly testified, both as a witness for the prosecution and for the defense, that (1) she observed the petitioner trembling and obviously upset, the evening after he learned of his mother's death as he described his interview by a law enforcement officer in Marshall and (2) it was unusual for the emotionally guarded petitioner to display his feelings. See S.F. Trial, Volume 33 of 46, testimony of Ida Marie Kelly, at pp. 1568-69.
Virginia Talley, the teenage daughter of Ida Marie Kelly, testified that the petitioner appeared "bummed out" about his mother's murder the night after he and Wolford returned to San Antonio from Marshall and that the petitioner did not laugh about anything but, rather, appeared concerned. See S.F. trial, Volume 35 of 46, testimony of Virginia Talley, at pp. 1975-82. On cross-examination, this witness admitted that she had penned several, rather torrid, love letters to the petitioner during his pretrial incarceration. Id., at p. 1992.
Margie and Calvin Grantham, two friends of the petitioner in Marshall, Texas, who saw him shortly after the petitioner had been formally notified by law enforcement of his mother's death, both testified the petitioner appeared very tense and upset, on the verge of tears.See S.F. Trial, Volume 36 of 46, testimony of Margie Grantham, at pp. 2039-42; and testimony of Calvin Grantham, at pp. 2048-51.
Linda Talley Champagne, petitioner's half-sister, testified that when she, the petitioner, and other family members went to the funeral home to view the bodies of Leona, Libby, and Reba, the petitioner was crying and that it takes a lot to make the petitioner cry. See S.F. Trial, Volume 36 of 46, testimony of Linda Talley Champagne, at pp. 1067-68. Petitioner's other half-sister, Dell Lackey, testified that she, too, was surprised when she saw the petitioner cry at the funeral home because she had never seen him weep before. Id., testimony of Dell Lackey, at pp. 2107-09.
Regina "Gigi" Lorch, a friend of Leona's, testified that, when she went with the family to the funeral home, the petitioner was upset when he went with her into the room to view the bodies, the petitioner stepped into the room where the bodies were on display and said "oh no," turned, and walked out of the room. Id., testimony of Regina "Gigi" Lorch, at pp. 2143-45.

The defense's theory of the case at the guilt-innocence phase of trial was to suggest that Tassy Boone's mother, Monica Boone, had committed the murders. Toward this end, the defense offered evidence showing that Monica and Tassy had a difficult relationship and that Monica had physically abused Tassy,²¹ and, on the night of the murders, a woman, who like Monica bore a tattoo on her shoulder, appeared in an intoxicated condition at a bar near the crime scene mumbling about having lost her hammer.²²

21 For instance, Regina "Gigi" Lorch testified that (1) the first time she met Tassy, the teenager had bruises on her leg and knee, (2) while Monica and Tassy were cordial with each other in public, they did not care for one another, and (3) Monica had tattoos on her breast and shoulder. See S.F. Trial, Volume 36 of 46, testimony of Regina "Gigi" Lorch, at pp. 2151-52 and 2157.

22 More specifically, Doreen Bodie, the owner of a bar in Seguin, testified that (1) on the evening of September 19, 1995, a woman arrived at the bar in an orange jeep with a middle-aged man named Monty Stewart, (2) the woman got out of the jeep and sat down at the bar, (3) the woman was disoriented and appeared to be either drunk or high, (4) the woman moaned about losing her hammer and her bat and said something about visiting "two children" on Longhorn Road (the same road on which the Boone residence was located), and (5) the woman in question was not Victoria Wolford. See S.F. Trial, Volume 35 of 46, testimony of Doreen Bodie, at pp. 1935-41, 1953-58, and 1961.

c. The Prosecution's Rebuttal Evidence

In rebuttal, the prosecution (1) re-called Monica Boone, who testified that she had been in California on the date of the murders and denied killing any of the victims,²³ (2) presented business records from an airlines showing that a ticket had been issued to a Monica Boone the day after the murders for a flight from Sacramento to San Antonio,²⁴ and (3) presented testimony establishing that law enforcement had identified the drunken woman seen at the bar in Seguin the evening before the murders and determined that she not a suspect.²⁵

d. The Jury's Verdict

The jury returned a verdict of guilty on November 1, 1996, after deliberating less than three hours.²⁶

26 The jury retired at 10:36 a.m. on November 1, 1996 to deliberate at the guilt-innocence phase of trial and returned its guilty verdict at 1:32 p.m. that same date. See S.F. Trial, Volume 37 of 46, at pp. 2304 2316. It is unclear from the record before this Court whether the jury took a recess for lunch.

5. Punishment Phase of Trial

The tumultuous punishment phase of petitioner's trial commenced on November 4, 1996.

a. The Prosecution's Case

(1) Petitioner's Previous Convictions

A fingerprint expert testified that the petitioner's fingerprints matched those on a pen packet introduced into evidence as State's Exhibit 395, which related to petitioner's September, 1982, Hidalgo County, Texas conviction for attempted capital murder.²⁷ An eyewitness to the petitioner's 1982 attempted capital murder offense testified that (1) she watched the petitioner and another man beat their robbery victim, (2) she later walked over and nudged the non-responsive victim with her foot, (3) the petitioner went back to their vehicle, obtained a knife, and walked over the victim, (4) when the petitioner subsequently returned to the car, there was blood on the knife, and (5) the petitioner wiped the blood off the knife and said "I think I killed him . . . I cut his throat. "²⁸

27 A copy of State's Exhibit 395 appears in S.F. Trial, Volume 45 of 46.

28 See S.F. Trial, Volume 40 of 46, testimony of Kristina Stopa, at pp. 447-52.

The prosecution introduced additional state court documents relating to petitioner's December, 1981, misdemeanor assault conviction.²⁹

29 See State's Exhibit Nos. 397, 398, and 400, found in S.F. Trial, Volume 45 of 46.
Curiously, the prosecution apparently did not introduce any substantive testimony relating directly to petitioner's felony conviction for his September, 1981 burglary of a habitation. See Bagwell v. State , 657 S.W.2d 526 (Tex.App.-Corpus Christi 1983, petition ref'd). While a Hidalgo County Probation Officer testified at the punishment phase of petitioner's trial that the petitioner had previously been convicted of burglary of a habitation and State's Exhibit 455 (purportedly a set of records relating to the probated sentence the petitioner received following that conviction) was admitted into evidence at petitioner's capital murder trial,see S.F. Trial, Volume 40 of 46, testimony of Leopoldo Palacios, Jr., at p. 413, no copy of State's Exhibit 455 appears among the voluminous state court records submitted to this Court by respondent. Instead, pages 886-895 appear to be missing from S.F. Trial, Volume 46 of 46.

(2) Petitioner's Murder of George Berry

Victoria Wolford returned to the stand and testified that (1) during Labor Day weekend, 1995, the petitioner and Wolford sold several pieces of electronic equipment the petitioner had rented and planned to report stolen, (2) they used the proceeds from their sale of the electronics to purchase rock cocaine, (3) after they consumed more than one hundred dollars worth of rock cocaine, the petitioner drove them to Seguin, where they twice circled the bar where they first met before the petitioner parked their car behind the establishment at approximately 12:25 a.m., (4) the petitioner went inside the bar but returned about five minutes later and asked for a quarter, (5) the petitioner began to walk back to the bar but then turned back to the car and announced to a skeptical Wolford that he was going to kill and rob elderly George Berry, who was inside the bar, (6) the petitioner went back inside the bar, where he remained for fifteen-to-twenty minutes, during which time Wolford heard two dull, metallic, stomping noises coming from inside the bar's storage room, (7) when the petitioner emerged from the bar again, he was carrying one glove and three money bags, two plastic and one cloth, (8) the petitioner threatened Wolford and told her she was the only witness he had ever allowed to live, (9) the petitioner directed Wolford to place the money bags beneath her seat, (10) Wolford did so and placed her purse on top of them, (11) the petitioner went through the cloth money bag and directed Wolford to go through one of the plastic bags and, after initial resistance, she did so, (12) the petitioner put all the money into the cloth money bag and drove them back to the house in Seguin where they had previously purchased rock cocaine, (13) after they purchased more rock cocaine, they returned to the travel trailer on the Boone property where they were staying, (14) the petitioner informed Wolford that he had struck George Berry with his hand and injured his finger and then he smashed his foot on Berry's throat, (15) the petitioner dropped Wolford off at the Boone property and left for approximately twenty minutes, (16) when he returned, the petitioner placed the money bag under the stove and they consumed their rock cocaine, (17) the petitioner informed Wolford that he believed God had put him there "to kill some people," (18) when they moved from the Boone property and began renting a room from their friends in San Antonio, they took the cloth money bag with them, (19) the petitioner was wearing black boots the night he killed and robbed George Berry, (20) the day after the robbery and murder, the petitioner's hand was discolored and swollen, (21) she lied to law enforcement officers when they first asked her about Berry's murder because she was afraid of the petitioner, however, (22) she gave full and accurate statements regarding that crime before she had an agreement with Guadalupe County prosecutors.³⁰

George Berry' s battered body was discovered shortly before six a.m. on September 5, 1995 on the floor of the storage room of Jim's Place, a bar in Seguin.³¹ There were obvious marks on Berry's face, nose, and neck.³² An expert witness testified that the marks on Berry's face could have been made by the sole of the heel of the boots the petitioner was wearing at the time of his arrest.³³

31 See S.F. Trial, Volume 38 of 46, testimony of Shane Burkhart, at pp. 17-20 and 24-27; and testimony of Darryl Hunter, at pp. 29-36.

32 See S.F. Trial, Volume 38 of 46, testimony of Jim De La Garza, at pp. 124-25.
In addition, a Department of Public Safety ("DPS") forensic photographer testified that he took crime scene photographs of the Berry murder, including close-up photographs of Berry's face which were admitted into evidence and showed obvious discoloration on the right side of Berry's face from the jaw to ear. See S.F. Trial, Volume 39 of 46, testimony of Michael Jay Holle, at pp. 278-82. The same witness also testified that he took photographs of the sole pattern on the bottom of a boot admitted into evidence as State's Exhibit 442. Id., at p. 284.

33 More specifically, a DPS trace evidence analyst testified that he found an impression on Berry's face at the crime scene and took his own photographs for the purpose of comparing those impressions with possible weapons. See S.F. Trial, Volume 39 of 46, testimony of Gene Lawrence, at pp. 320-22. This same witness testified that he compared photographs of the soles of the petitioner's boots, i.e., State Exhibit Nos. 441 and 442, with photographs of George Berry's face and concluded that the impressions on Berry's face could have been made by the heel of the petitioner's boot. Id., at pp. 322-29. On cross-examination, this expert admitted that he could not be certain it was a boot that left the impression on Berry's face, rubber fragments found on Berry's shirt did not match the heel of the petitioner's boots, and no boot marks were found on Berry's neck. Id., at pp. 332-33.
A San Antonio Police Officer identified the boots the DPS expert witness examined and compared to the marks on Berry's face as having been taken off the petitioner following the petitioner's arrest on September 25, 1995. See S.F. Trial, Volume 38 of 46, testimony of Richard Dean Martin, at pp. 116-20.

An expert witness testified that the petitioner's left thumb and left palm prints matched those she lifted from a file safe in the storage room where Berry's body was found.³⁴ The manager and two employees of Jim's Place all testified that non-employees were never allowed into the storage room at the rear of the bar where Berry's body was found and the file safe was located.³⁵ The bar tender who worked the evening of Berry's murder testified that (1) before she left Jim's Place for the night, she counted the money from her cash register and placed same into a money bag which she, in turn, placed in an unlocked drawer of the file safe in the bar's back room and (2) Berry was supposed to lock the file safe after she left.³⁶

34 See S.F. Trial, Volume 39 of 46, testimony of Carrie Sandifer, at pp. 287-99.

35 See S.F. Trial, Volume 38 of 46, testimony of Claudette Kenzel, at pp. 178-79; testimony of Donna Thornton, at pp. 193-94 and 196-97; and testimony of Melissa Knight, at pp. 204 and 209-11.
Additionally, the bar's manager testified that (1) the keys to the file safe were hung by the cash register, (2) Berry had the keys to the file safe and knew the combination to the safe, (3) Berry's duties included cleaning up the bar after hours, restocking, taking out the trash, and taking the bar's money to the bank for deposit, (4) there was between eleven and fourteen hundred dollars in the file safe the night Berry was killed, and (5) she had never seen the petitioner in the store room.See S.F. Trial, Volume 38 of 46, testimony of Donna Thornton, at pp. 181-97.

36 See S.F. Trial, Volume 38 of 46, testimony of Melissa Knight, at pp. 200-03.

Acting on information furnished by Wolford, a law enforcement officer found a cloth money bag in the closet of a room rented by the petitioner and Wolford.³⁷ The manager of Jim's Place identified that same money bag, which bore a bank logo, as one used by the bar.³⁸ The petitioner and Wolford's landlords testified that, shortly after he and Wolford moved into their home in early-September, 1995, the petitioner paid his rent of $275 in coins and one dollar bills which the petitioner took from a bank money bag.³⁹

37 See S.F. Trial, Volume 38 of 46, testimony of Richard Bennie, at pp. 139-142.

38 See S.F. Trial, Volume 38 of 46, testimony of Donna Thornton, at p. 190.

39 See S.F. Trial, Volume 39 of 46, testimony of Christine Posey, at pp. 358-59; and testimony of Michael Posey, at pp. 370-71.

Berry's autopsy revealed (1) multiple injuries to the face, neck, and upper chest, scratches to his arms, and diffused bruising to the left side of his face and head, (2) swelling, bruising, and abrasions to the left eyebrow and upper eyelid, (3) a dark red abrasion consisting of a pattern injury of wavy lines one-eighth inch apart extending from the left side of the chin to the right angle of the mandible, (4) extensive bruising and abrasions to the center and upper neck and upper chest, (5) a linear pattern of bruising to the upper chest similar to those observed on the neck and cheek, (6) diffused bruising to the upper anterior left shoulder, (7) several instances of "diffused" or extensive bruising apparently resulting from blunt force trauma such as that inflicted by a bat, fist, or stomping with a smooth surface, (8) a dry abrasion to the back of the head and a small abrasion to the right side of the neck, (9) four scattered scrapes to the back and back of the left elbow, (10) a linear bruise to the back of the right ring finger, (11) evidence Berry's only tooth had been knocked out recently after Berry had bitten completely through his tongue, (12) massive injuries to the neck and throat which completely crushed all cartilage in the upper portion of the windpipe, and (13) the left portion of the thyroid gland was completely severed from the rest of that organ.⁴⁰ The medical examiner opined that (1) Berry's injuries were the results of a very severe form of force, likely heavy stomping, that resulted in a crushed throat, extensive blunt force injury to the face, head, and neck, and bleeding over the surface of the brain and (2) Berry died as a result of a crushed throat⁴¹

40 See S.F. Trial, Volume 39 of 46, testimony of Dr. Robert J. Bayardo, at pp. 339-48.

41 Id., testimony of Dr. Robert J. Bayardo, at pp. 348-50.

(3) Violence During Pretrial Detention

Six County jail employees testified regarding threats and acts of violence engaged in by petitioner during his pretrial detention.⁴²

(4) Petitioner's TDCJ Disciplinary Records

A pair of Texas Department of Criminal Justice ("TDCJ") officials testified from TDCJ records that (1) during the period 1983 through 1988, the petitioner was an inmate in the Texas penal system, (2) from October, 1984 through December, 1987, the petitioner was housed in administrative segregation, the maximum custodial status available in the TDCJ, (3) during petitioner's incarceration, he was cited for sixteen disciplinary violations, including possession of tattooing equipment, creating a disturbance, using vulgar language, damaging or destroying state property, being out of place, trafficking and trading, striking an officer, inciting a riot, possession of contraband, multiple counts of refusing to obey orders, multiple counts of refusing to work, and multiple counts of threatening an officer, and (4) there are opportunities for violence by TDCJ inmates, even those in administrative segregation.⁴³

(5) Petitioner's Parole Records

A quartet of current and former TDCJ Parole Division officials identified petitioner's parole records and testified those records showed that (1) the petitioner was denied release on parole several times in the late-1980's, (2) petitioner was released on parole on October 25, 1989, (3) a pre-revocation warrant was issued for petitioner on April 6, 1992 for possession of a firearm, (4) petitioner's parole was revoked on June 5, 1992, (5) the petitioner was released again on parole on January 4, 1993 with a special condition that he participate in sexual offender counseling on a weekly basis, (6) the petitioner missed four counseling sessions, (7) petitioner displayed only fair-to-poor attitude during his counseling sessions, (8) while the petitioner never tested positive for cocaine, he did test positive for marijuana use in 1994, (9) there were no records of the petitioner having been given a drug test in 1995, and (10) his parole was revoked a second time in November, 1995.⁴⁴

b. The Defense's Case

The defense presented five witnesses, including the petitioner's former wife and former parole officer, who each opined that the petitioner should receive a term of life imprisonment, rather than a death sentence.⁴⁵

45 See S.F. Trial, Volume 40 of 46, testimony of Angela Keresztury (petitioner's former parole officer), at pp. 493 497; testimony of Linda Champagne (petitioner' s half-sister), at p. 522; testimony of Dell Lackey (petitioner's half-sister), at p. 529; testimony of Regina (Gigi) Lorch, at pp. 538-39; and testimony of Elizabeth Bagwell, at pp. 555 568.

The defense's theory regarding the murder of George Berry was that Robin Glen Whitman, another employee of Jim's Place, had murdered Berry. However, Whitman testified that (1) while had once threatened to kill Berry, he would never acted on that threat and never would have struck a sixty two year old man and (2) he did not work on the date of the Berry murder because he was home nursing an injured hand.⁴⁶ The bar tender who worked at Jim's Place the night of the Berry murder testified that Whitman called in sick that evening.⁴⁷ A Seguin Police Officer testified that Whitman's alibi for the night of the Berry murder had checked out and he had no reason to believe Whitman committed the murder.⁴⁸

46 See S.F. Trial, Volume 38 of 46, testimony of Robin Glen Whitman, at pp. 153-71.

47 See S.F. Trial, Volume 38 of 46, testimony of Melissa Knight, at p. 203.

48 See S.F. Trial, Volume 38 of 46, testimony of Jim De La Garza, at pp. 131-32.

c. The Jury's Verdict

The jury deliberated less than four hours on November 7, 1996 before returning its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt that there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character and background, and the petitioner's personal moral culpability, there were insufficient circumstances to warrant a sentence of life imprisonment.⁴⁹

49 See Transcript, at pp. 833-34; and S.F. Trial, Volume 41 of 46, at pp. 623-24. The jury retired to deliberate in the punishment phase of petitioner's capital murder trial at 9:53 a.m. on November 7, 1996 and returned its verdict at 1:45 p.m. that same date. See S.F. Trial, Volume 41 of 46, at pp. 623. It is unclear from the record whether the jurors took a lunch break during their deliberations but common sense suggests that they did so.

5. Direct Appeal

The petitioner appealed his capital murder conviction and sentence of death.⁵⁰ In an unpublished opinion issued March 31, 1999, the Texas Court of Criminal Appeals rejected all of the petitioner's points of error.⁵¹ Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.

50 Petitioner presented twenty three points of error in his appellant's brief, consisting of arguments that (1) the state trial court's refusal to permit voir dire examination and jury instructions regarding Texas parole law violated the petitioner's constitutional rights under the Fourteenth Amendment's Due Process and Equal protection Clauses, as well as the Eighth Amendment, (2) Article 37.07, § 4 of the Texas Code of Criminal Procedure was guilty of the same three constitutional defects, (3) the state trial court erred in admitting testimony of a hair analysis expert regarding similarities between one hair found on the tennis shoes and the petitioner's hair, (4) the trial court erred in not instructing the jury that Wolford was an accomplice as a matter of law, (5) there was factually insufficient evidence to support petitioner's conviction, (6) the trial court's punishment phase jury instructions precluded meaningful appellate review of the sufficiency of the evidence, (7) Article 44.251(a) of the Texas Code of Criminal Procedure was unconstitutional in view of its interplay with Article 37.071, § 2(e), (8) the Texas Court of criminal Appeals' refusal to engage in proportionality review of capital sentences violated due process principles, (9) Article 37.071 of the Texas Code of Criminal procedure, as applied to the second special sentencing issue, did not satisfy the requirements of the Supreme Court's holding in Tison v. Arizona , (10) the definition of "mitigating evidence" under Texas law was too limited for Eighth Amendment purposes, (11) the second sentencing special issue fails to place the burden of proof and is too open-ended to satisfy Eighth Amendment principles, (12) the trial court's refusal to instruct the jury regarding the effect of a hung jury violated due process principles, (13) the different capital sentencing schemes employed in Texas in the decade of the 1990's resulted in arbitrary imposition of the death penalty, (14) the Texas death penalty is cruel and unusual in violation of the Eighth Amendment, and (15) the death penalty violates the Texas Constitution.

51 More specifically, the Texas Court of criminal Appeals concluded that (1) the jury's guilty verdict was not against the great weight of the evidence, (2) none of the petitioner's due process, equal protection, or Eighth Amendment complaints regarding the absence of punishment phase jury instructions regarding parole eligibility warranted reversal of petitioner's sentence, (3) the trial court properly admitted the hair analysis expert testimony, (4) the trial court properly refused to instruct the jury that Wolford was an accomplice as a matter of law, (4) proportionality review of capital sentences is not constitutionally necessary and the Texas capital sentencing special issues are constitutional, (5) the definition of "mitigating evidence" urged by the petitioner on appeal was excessively broad insofar as it sought to incorporate evidence unrelated to the petitioner's moral culpability, (6) because the Texas capital sentencing special issues do not require the jury to weigh aggravating versus mitigating factors, the absence of a burden of proof instruction in the second sentencing special issue requiring the jury to find that the state has proved aggravating factors does not violate due process principles, (7) petitioner had no right to a jury instruction informing the jury of the effect of a single hold-out juror at the punishment phase of trial, (8) Texas' different capital sentencing schemes in the 1990's did not violate petitioner's constitutional rights, (9)
See Bagwell v. State , Cause No. 72,699 (Tex.Crim.App. March 31, 1999).

6. State Habeas Corpus Proceeding

On September 28, 1998, petitioner filed an application for state habeas corpus relief, in which he re-urged his complaints about the trial court's refusal to permit voir dire or punishment phase jury instructions regarding parole eligibility, asserted a pair of ineffective assistance claims, attacked the admission of certain poorly identified photographs, and argued that one member of the jury had correctly surmised that the petitioner's legs had been shackled throughout trial.⁵² The state district court held an evidentiary hearing in petitioner's habeas corpus proceeding on May 14, 1999 and heard testimony from petitioner's lead trial counsel, petitioner's court-appointed defense investigator, petitioner's sister, and the petitioner himself.⁵³ Both parties filed proposed findings of fact and conclusions of law.⁵⁴ On July 9, 1999, the state trial judge issued an Order incorporating his findings of fact, conclusions of law, and recommendation that the petitioner's state habeas corpus application be denied.⁵⁵ In an unpublished, per curiam Order issued September 29, 1999, the Texas Court of Criminal Appeals expressly adopted the trial judge's findings and conclusions and denied state habeas relief.⁵⁶

52 More specifically, in ten grounds for relief contained in his state habeas corpus application, the petitioner (1) re-urged six of the points of error he had presented in his direct appeal, to wit, his claims that the trial court's refusal to permit voir dire or jury instructions regarding parole eligibility for Texas prisoners given life sentences violated due process, equal protection, and Eighth Amendment principles, (2) asserted that his trial counsel rendered ineffective assistance by failing to (a) interview Victoria Wolford prior to trial and (b) present mitigating evidence regarding petitioner's difficult childhood, (3) argued the trial court erred in admitting gruesome photographs of the decedents which Dr. Oliver had blown up to reveal details of the pattern injuries sustained by Leona, Tassy, and Reba, and (4) argued that one juror suspected (correctly) that the petitioner had been shackled throughout the trial. See Transcript of pleadings, motions, and other documents filed in petitioner's State Habeas Corpus proceeding (henceforth "Transcript, State Habeas Proceeding"), at pp. 2-30.

53 The one-volume verbatim transcription of the oral testimony and other evidence admitted at that hearing appears among the state court records relating to petitioner's state habeas corpus proceeding will be designated `"S.F. State Habeas
Hearing."

54 See Transcript, State Habeas Proceeding, at pp. 69-91.

55 More specifically, the state trial judge (1) concluded that petitioner's first six grounds for relief relating to voir dire and jury instructions on parole eligibility had been disposed of on direct appeal and could not be re-litigated in a state habeas forum, (2) found the petitioner had failed to present any evidence showing that Victoria Wolford would have consented to an interview by petitioner's trial counsel, (3) found that petitioner's trial counsel had reviewed all of Wolford's written statements, (4) found that Wolford's trial testimony was substantially the same as the information contained in her written statements, (5) found that, despite having opportunity to do so, neither the petitioner nor his sister informed petitioner's trial counsel of the details of the petitioner's allegedly difficult childhood, (6) concluded that petitioner's trial counsel had not rendered ineffective assistance, (7) found the petitioner had failed to identify any specific photograph whose admission was erroneous, (8) concluded the petitioner had procedurally defaulted with regard to his complaint about the admission of any allegedly prejudicial photographs by failing to raise that complaint on direct appeal, (9) concluded that one juror's personal speculation regarding the possibility the petitioner had been shackled during trial was not admissible to collaterally attack the validity of the verdict, and (10) recommended that state habeas corpus relief be denied. See Transcript, State Habeas Proceeding, at pp. 93-104.

56 See Ex parte Dennis Wayne Bagwell. No. 42, 341-01 (Tex.Crim.App. September 29, 1999).

B. Procedural History

On October 13, 1999, petitioner filed a motion for appointment of counsel.⁵⁷ On October 19, 1999, petitioner filed an amended motion for appointment of counsel,⁵⁸ which this Court granted in an Order issued October 20, 1999.⁵⁹ In an Order issued November 2, 1999, this Court set deadlines for the filing of petitioner's federal habeas corpus petition and the respondent's response thereto.⁶⁰

57 See docket entry no. 1,

58 See docket entry no. 2.

59 See docket entry no. 3.

60 See docket entry no. 4.

On February 3, 2000, petitioner filed a motion for stay of execution.⁶¹ Respondent filed no response to same. In an Order issued February 18, 2000, this Court stayed petitioner's execution.⁶²

61 See docket entry no. 7.

62 See docket entry no. 8.

Petitioner filed his federal habeas corpus petition and memorandum in support thereof in this Court on March 3, 2000, setting forth the claims for relief outlined in Section I above.⁶³

63 See docket entry nos. 9 and 10. To reiterate, petitioner's federal habeas corpus petition and his memorandum in support thereof contain arguments that (1) his rights under the Fourteenth Amendment's Due Process and Equal Protection Clauses, as well as the Eighth Amendment, were violated when the state trial court refused to permit his trial counsel to voir dire potential jurors regarding their knowledge of Texas parole law and the state trial court refused to instruct the jury at the punishment phase of petitioner's trial regarding the length of time petitioner would have to serve following imposition of a life sentence before becoming eligible for release on parole, (2) his trial counsel rendered ineffective assistance by failing to (a) interview the prosecution's chief witness prior to trial and (b) investigate, discover, develop, and present adequate mitigating evidence regarding petitioner's abusive childhood, (3) the state trial court erred in admitting certain gruesome photographs into evidence, (4) petitioner was improperly shackled during trial, (5) petitioner was coerced by his trial counsel into not testifying at trial, (6) the Texas statute excluding jury instructions and consideration of parole eligibility at the punishment phase of petitioner's trial violated due process, equal protection and Eighth Amendment principles, (7) the Texas capital sentencing special issues are unconstitutionally vague with regard to their treatment of "mitigating evidence," (8) the Texas capital sentencing special issues are unconstitutionally vague, (9) the refusal of the Texas Court of Criminal Appeals to engage in proportionality review of death sentences violates due process principles, and (10) the Texas twelve:ten rule violates due process principles insofar as Texas capital jurors are not informed regarding the effect of a single holdout juror at the punishment phase of a capital murder trial.

On July 5, 2000, respondent filed his answer and motion for summary judgment in which he argued that (1) all of the petitioner's arguments regarding voir dire and jury instructions on parole eligibility are foreclosed by settled federal law or otherwise foreclosed by the Teague doctrine, (2) petitioner's ineffective assistance claims fail to satisfy the prejudice prong of Strickland , (3) petitioner failed to exhaust and, thereby, procedurally defaulted on his claim that he was coerced into not testifying at trial, (4) petitioner's concealed leg restraints did not violate petitioner's constitutional rights, (5) the Texas capital sentencing special issues are not unconstitutionally vague, (6) there is no constitutional right to proportionality review, and (7) Teague also bars petitioner's complaints regarding the Texas twelve: ten rule.⁶⁴

64 See docket entry no. 17.

On November 9, 2000, petitioner filed his reply to respondent's motion for summary judgment in which he argued that he had exhausted available state court remedies on his claim that he was denied his constitutional right to testify at trial.⁶⁵

65 See docket entry no. 18.

III. Analysis and Authorities

A. The AEDPA Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA.⁶⁶

66 See Penry v. Johnson , 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001).

Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.⁶⁷

67 See Wiggins v. Smith , ___ U.S. ___, ___, 123 S.Ct. 2527, 2534, ___ L.Ed.2d ___ (2003); Price v. Vincent , ___ U.S. ___, ___, 123 S.Ct. 1848, 1852-53, 155 L.Ed.2d 877 (2003); Williams v. Taylor , 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); and 28 U.S.C. § 2254(d).

The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. § 2254(d)(1) have independent meanings.⁶⁸ 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 has on a set of materially indistinguishable facts.⁶⁹ 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.⁷⁰ A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable."⁷¹ 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.⁷²

68 See Bell v. Cone. 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002); Penry v. Johnson , 532 U.S. at 792, 121 S.Ct. at 1918; and Williams v. Taylor , 529 U.S. at 404-05, 120 S.Ct. at 1519.

69 See Price v. Vincent , ___ U.S. at ___ 123 S.Ct. at 1853, ("a decision by a state court is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or if 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.'"); Bell v. Cone. 535 U.S. at 694, 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 1918, ("A state court decision will be `contrary to' our clearly established precedent if the state court either `applies a rule that contradicts the governing law set forth in our cases,' or `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.'"); and Williams v. Taylor , 529 U.S. at 404-06, 120 S.Ct. at 1518-19.

70 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2534-35; Woodford v. Visciotti , 537 U.S. 19, ___, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002); Bell v. Cone. 535 U.S. at 694, 122 S.Ct. at 1850; Penry v. Johnson , 532 U.S. at 792, 121 S.Ct. at 1918; and Williams y. Taylor , 529 U.S. at 407-08, 120 S.Ct. at 1520-21.
In Williams , the Supreme Court expressly reserved for another day the issue of how federal habeas courts should determine whether a state court erroneously extended a legal principle into a new realm or erroneously refused to extend existing legal principle into a new area. See Williams v. Taylor , 529 U.S. at 408-09, 120 S.Ct. at 1521.

71 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2535; Woodford v. Visciotti. 537 U.S. at ___, 123 S.Ct. at 360; Penry v. Johnson , 532 U.S. at 793, 121 S.Ct. at 1918; Williams v. Taylor , 529 U.S. at 409-11, 120 S.Ct. at 1520-22.

72 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2535; Price v. Vincent , ___ U.S. at ___, 123 S.Ct. at 1853, ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner."); Woodford v. Visciotti , 537 U.S. at ___, 123 S.Ct. at 360; Bell v. Cone. 535 U.S. at 694, 122 S.Ct. at 1850? Penry v. Johnson , 532 U.S. at 793, 121 S.Ct. at 1918; and Williams v. Taylor. 529 U.S. at 410-11, 120 S.Ct. at 1522.

The AEDPA significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous.⁷³

73 See Foster v. Johnson , 293 F.3d 766, 776 (5th Cir. 2002), cert. denied , ___ U.S. ___, 123 S.Ct. 625, 154 L.Ed.2d 532 (2002); Rudd v. Johnson , 256 F.3d 317, 319 (5th Cir. 2001), cert. denied. 534 U.S. 1001 (2001): "The presumption is particularly strong when the state habeas court and the trial court are one and the same."; Dowthitt v. Johnson , 230 F.3d 733, 741 (5th Cir. 2000), cert. denied , 532 U.S. 915 (2001); Miller v. Johnson. 200 F.3d 274, 281 (5th Cir. 2000), 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 same by clear and convincing evidence); Morris v. Cain , 186 F.3d 581, 583 (5th Cir. 1999); Davis v. Johnson , 158 F.3d 806, 812 (5th Cir. 1998), cert. denied , 526 U.S. 1074 (1999); Jackson v. Johnson , 150 F.3d 520, 524 (5th Cir. 1998), cert. denied , 526 U.S. 1041 (1999); Williams v. Cain , 125 F.3d 269, 277 (5th Cir. 1997), cert. denied. 525 U.S. 859 (1998), (recognizing that under the AEDPA, state court factual findings "shall be presumed correct unless rebutted by `clear and convincing evidence'"); Hernandez v. Johnson , 108 F.3d 554, 558 n. 4 (5th Cir. 1997), 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"); and 28 U.S.C. § 2254(e)(1).

With the foregoing principles in mind, this Court turns to the merits of petitioner's claims for federal habeas corpus relief.

B. Parole Jury Instructions and Voir Dire Claims

1. The Claims

In his first six grounds for relief in his federal habeas corpus petition, petitioner argues that the state trial court denied his federal constitutional rights under the Eighth Amendment, the Fourteenth Amendment's Due Process Clause, and the Fourteenth Amendment's Equal protection Clause when the state trial court denied petitioner's requests for (1) a jury instruction at the punishment phase of trial informing the jury of the duration of time the petitioner would have to serve in prison before becoming eligible for release on parole if given a life sentence and (2) the opportunity to voir dire potential jurors regarding their personal knowledge of Texas parole law.⁷⁴ In his eleventh through thirteenth claims for relief, petitioner echoes these same three constitutional arguments in the context of a trio of challenges to the former Texas statutory exclusion of information regarding parole eligibility in capital sentencing proceedings.⁷⁵

74 See Petitioner's Petition for Writ of Habeas Corpus, filed March 3, 2000, docket entry no. 9 (henceforth "Petition"), at pp. 6-10; and Petitioner's Memorandum of Law in Support of Petition for Writ of habeas Corpus, filed March 3, 2000, docket entry no. 10 (henceforth "Memorandum"), at pp. 7-26.

75 See Petition, at pp. 18-20; and Memorandum, at p. 51.

2. "Clearly Established" Supreme Court Precedent

a. Due Process Clause Claims

The initial problem with these claims, from the perspective of the AEDPA, is that the petitioner has not identified any United States Supreme Court authority establishing that Texas capital murder defendants, unlike those in South Carolina and other jurisdictions where they face the possibility of a life sentence without the possibility of parole, are constitutionally entitled to a jury instruction regarding parole eligibility. On the contrary, the Supreme Court has taken great pains in its opinions addressing jury instructions on parole eligibility in capital trials to distinguish those jurisdictions, such as Texas, which do not have terms of life imprisonment without the possibility of parole from those jurisdictions which provide that option to sentencing juries.⁷⁶

76 See Simmons v. South Carolina , 512 U.S. 154, 168-69 n. 8, 114 S.Ct. 2187, 2196 n. 8, 129 L.Ed.2d 133 (1994), (plurality opinion specifically explaining that, as of that date, Texas courts traditionally kept capital sentencing juries unaware of the availability of parole for those sentenced to serve terms of life imprisonment). Representing the views of three members of the Supreme Court in Simmons , Justice O'Connor's concurring opinion is also significant because of its emphasis on the fact that, under South Carolina law, a capital defendant faced the possibility of life without parole. See Id. , 512 U.S. at 176-78, 114 S.Ct. at 2200-01 (concurring opinion).
The Supreme Court's more recent opinion in Ramdass v. Angelone , 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), continues the vitality of this distinction, as the plurality opinion for the Supreme Court specifically limited the holding in Simmons to "only those instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." Id., 530 U.S. at 169, 120 S.Ct. at 2121. In her separate, pivotal, concurring opinion in Ramdass , Justice O'Connor once again emphasized her view of the continued vitality of the rule in Simmons , as enunciated by the plurality in Ramdass , and also pointed out that Ramdass came before the Supreme Court in the context of a federal habeas corpus proceeding, in which the Supreme Court's review, like this Court's review in the present cause, is circumscribed by the terms of the AEDPA. See Id. , 530 U.S. at 179, 120 S.Ct. at 2126 (concurring opinion).
Even more recently, the Supreme Court's opinion in Shafer v. South Carolina , 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), at least implicitly acknowledged the continued vitality of the distinction first noted in Simmons by holding that South Carolina's new capital sentencing scheme was guilty of the same constitutional defect identified in Simmons because, at least under some circumstances, the sentencing jury would be faced with a choice between a sentence of death and a sentence of life without the possibility of parole. See Shafer v. South Carolina , 532 U.S. at 51, 121 S.Ct. at 1273: "We therefore hold that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole."
In Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), the Supreme Court reiterated its holding in Shafer , emphasizing once again that capital sentencing juries in that State which unanimously found the presence of an aggravating circumstances were left to select between one of only two possible sentences: death or life imprisonment without the possibility of parole.See Kelly v. South Carolina , 534 U.S. at n. 2, 122 S.Ct. at 730 n. 2.

Like the United States Supreme Court in Ramdass v. Angelone,⁷⁷ this Court must view the petitioner's claims herein through the prism of the AEDPA. Thus, the issue before this Court isnot whether the petitioner has made a compelling policy argument for extending the holding of Simmons to jurisdictions such as Texas, where convicted capital murder defendants do not face the prospects of only a death sentence or a term of life imprisonment without the possibility of parole. Rather, the questions before this Court are whether, in rejecting on the merits petitioner's Eighth and Fourteenth Amendment claims regarding his requested jury instruction on parole eligibility and his requests to voir dire potential jurors regarding their knowledge of Texas law addressing parole eligibility, the Texas courts acted in a manner that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

77 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000).

Having carefully reviewed Supreme Court case law on the subject, this Court finds absolutely nothing about the Texas Court of Criminal Appeals' rejection of petitioner's first six claims for relief in petitioner's federal habeas corpus petition (in the course of petitioner's state direct appeal) that was either contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States." The United States Supreme Court has never held that either the Fourteenth Amendment's Equal Protection Clause or the Eighth Amendment or the Fourteenth Amendment's Due Process Clause require a jurisdiction such as Texas, where there is no option of sentencing a convicted capital murderer to a term of life imprisonment without the possibility of parole, to instruct capital sentencing juries regarding the intricacies of then-current parole law applicable to terms of life imprisonment.⁷⁸ On the contrary, the Supreme Court took great pains in its opinion in Simmons to distinguish jurisdictions such as Texas from those to which the holding in that opinion applied and has consistently continued to adhere to that distinction in its subsequent opinions addressing the Fourteenth Amendment's Due Process Clause.⁷⁹

78 In fact, the Supreme Court's Fourteenth Amendment jurisprudence, which includes Simmons, Ramdass, Shafer , and Kelly , makes an express distinction between the rule applied in Simmons and Shafer and the due process requirements in jurisdictions such as Texas, where sentences of either death or life without parole are not the only choices facing a capital sentencing jury. While the petitioner also cites to opinions of the United States Supreme Court analyzing the Eighth Amendment, none of those opinions ever addressed the issue raised by petitioner's first six grounds for relief herein, i.e., whether a Texas capital sentencing jury must be informed of the details concerning a convicted capital murder defendant's eligibility for release on parole. Thus, there is simply no "clearly established" federal law, as enunciated by the United States Supreme Court, holding that either the Eighth Amendment or Fourteenth Amendment's Due Process or Equal Protection Clauses requires such an instruction at the punishment phase of a Texas capital murder trial.

79 See Simmons v. South Carolina , 512 U.S. at 168-69 n. 8, 114 S.Ct. at 2196 n. 8, (plurality opinion specifically explaining that, as of that date, Texas courts traditionally kept capital sentencing juries unaware of the availability of parole for those sentenced to serve terms of life imprisonment). Representing the views of three members of the Supreme Court in Simmons , Justice O'Connor's concurring opinion is also significant because of its emphasis on the fact that, under South Carolina law, a capital defendant faced the possibility of life without parole. See Id. , 512 U.S. at 176-78, 114 S.Ct. at 2200-01 (concurring opinion).

b. Eighth Amendment Claims

Likewise, while petitioner's arguments in support of his Eighth Amendment claim are innovative, imaginative, inventive, and even intriguing, they simply do not support a conclusion that "clearly established" federal law, as enunciated by the Supreme Court, requires capital murder defendants be permitted to either inform capital sentencing juries in jurisdictions such as Texas regarding the state parole eligibility laws applicable to life sentences or to voir dire potential jurors concerning same. While it is true that the Supreme Court has held in the context of the Eighth Amendment that capital sentencing juries must be permitted to consider and give effect to "constitutionally relevant mitigating evidence,"⁸⁰ the Supreme Court has never declared said term to include information regarding state parole eligibility laws.⁸¹ On the contrary, a review of pertinent Supreme Court case law reveals that court has consistently employed the term "constitutionally relevant mitigating evidence" to describe evidence which tends to diminish a convicted capital murderer's moral blameworthiness or lessen the reprehensible nature of the offense, i.e., evidence which relates to the defendant's background or character or to the circumstances of the offense.⁸² The Supreme Court has never declared that state statutes and administrative regulations addressing parole eligibility for those defendants convicted of capital murder and sentenced to terms of life imprisonment lessen a defendant's moral blameworthiness. There simply is no "clearly established" Supreme Court precedent holding that the Eighth Amendment mandates either the admission of evidence, submission of punishment-phase jury instructions, or voir dire examination of potential jurors regarding parole eligibility for life sentences in jurisdictions that do not furnish capital sentencing juries with the option of life without parole.

80 See Buchanan v. Angelone , 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998): "the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence."; Johnson v. Texas , 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993), (holding that the appropriate standard of review is whether there is a reasonable likelihood the challenged jury instructions were applied by the jury in a way that prevented the consideration of constitutionally relevant mitigating evidence); and Boyde v. California , 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990), (holding the same).

81 The defendant in Simmons argued that his ineligibility for release on parole was a relevant consideration with regard to the propriety of his sentence because the evidence showed thatall of his victims had been argued elderly women and that he was unlikely to encounter such persons if he were sentenced to serve a term of life imprisonment. The petitioner's situation is significantly different. There was no evidence introduced at petitioner's trial showing that all of the petitioner's victims were women. On the contrary, George Berry was clearly male.

82 See, e.g., Penry v. Johnson , 532 U.S. 782, 796-97, 121 S.Ct. 1910, 1920, 150 L.Ed.2d 9 (2001), (holding that jury instructions in a Texas capital sentencing proceeding did not adequately afford the jury a means of giving effect to mitigating evidence of the defendant's mental retardation and history of childhood abuse); Buchanan v. Angel one , 522 U.S. 269, 278-79, 118 S.Ct. 757, 762-63, 139 L.Ed.2d 702 (1998), (holding that jury instructions in a Virginia capital sentencing proceeding adequately permitted consideration of mitigating evidence of the defendant's difficult family background and mental and emotional problems); Johnson v. Texas , 509 U.S. at 369-71, 113 S.Ct. at 2669-71, (holding the Texas capital sentencing special issues given at the defendant's trial permitted adequate jury consideration of the defendant's youth at the time of his offense); and Penry v. Lynaugh , 492 U.S. 302, 309, 109 S.Ct. 2934, 2941, 106 L.Ed.2d 256 (1989), (holding an earlier Texas capital sentencing scheme did not permit the sentencing jury to give effect to the defendant's history of childhood abuse and mental retardation).
The foregoing Supreme Court opinions relied upon principles enunciated initially in a series of plurality opinions which echoed the same underlying Eighth Amendment concern, i.e., that a capital sentencing authority be free to give independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation. See Eddings v. Oklahoma , 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1 (1982); Lockett v. Ohio , 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978): "we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."; and Woodson v. North Carolina , 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976): "we believe in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." For a detailed discussion of the specific types of mitigating evidence involved in each of these cases, see this Court's opinion in Cordova v. Johnson , 993 F. Supp. 473, 490-500 (W.D. Tex. 1998), affirmed , 157 F.3d 380 (5th Cir. 1998), cert. denied , 525 U.S. 1131 (1999).
In Cordova , this Court defined "constitutionally relevant mitigating evidence" as "evidence which relates to the defendant's character or background or to the circumstances of the offense and is sufficient to lead a reasonable juror to impose a penalty less than death." Cordova v. Johnson , 993 F. Supp. at 499. This construction is consistent with the Fifth Circuit's definition of the same term. See Smith v. Cockrell , 311 F.3d 661, 680 (5th Cir. 2002: "In determining whether a defendant's mitigating evidence is constitutionally relevant, the question is whether `the evidence implicates the basic concern of Penry that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.'"; Muniz v. Johnson , 132 F.3d 214, 222 (5th Cir. 1998), cert. denied , 523 U.S. 1113 (1998): "Mitigating evidence is `any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'"; and Madden v. Collins , 18 F.3d 304, 307 (5th Cir. 1994), cert. Denied , 513 U.S. 1156 (1995). The current status of Texas parole eligibility statutes or regulations does not satisfy this definition of constitutionally relevant mitigating evidence.

c. Equal Protection Clause Claims

The petitioner's attempts to shoehorn his complaints about the exclusion of his proffered evidence, requested jury instructions, and requested voir dire questions relating to parole eligibility into the Fourteenth Amendment's Equal Protection Clause fail for the same reason. From its earliest opinions recognizing the need to require a capital sentencing authority to consider "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death, "⁸³ the Supreme Court has made clear that its opinions do not limit "the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense."⁸⁴

83 See Lockett v. Ohio , 438 U.S. at 604, 98 S.Ct. at 2964-65.

84 Lockett v. Ohio , 438 U.S. at 604 n. 12, 98 S.Ct. at 2965 n. 12.
Contrary to the implication underlying petitioner's Sixth Amendment Compulsory process Claim, not every form of testimony that a convicted capital murder defendant wishes to introduce before the jury necessarily falls within the category of "constitutionally relevant mitigating evidence," as defined by Supreme Court precedent. For instance, this Court has held that evidence of a co-defendant's life sentence had no relevance to the issue of the propriety of a convicted capital murder defendant's sentence and could be properly excluded at the sentencing phase of a Texas capital murder trial. See Cordova v. Johnson , 993 F. Supp. at 503. The Fifth Circuit subsequently concluded that evidence of a co-defendant's life sentence had no relevance to Cordova's background or character or to the circumstances of the offense. See Cordova v. Johnson , 157 F.3d at 383-84. Because Texas parole eligibility statutes and regulations do not bear on the petitioner's character, prior criminal record, or the circumstances of his offense, neither the Eighth Amendment nor the Sixth Amendment's Compulsory Process Clause compel admission of evidence regarding same at the punishment phase of a Texas capital murder trial.

The Supreme Court has never declared that the Fourteenth Amendment's Equal Protection Clause permits a defendant to introduce evidence at the punishment phase of his capital murder trial without regard to state evidentiary rules or concepts of relevance and materiality. On the contrary, the Supreme Court has recognized that a defendant's right to present even relevant evidence is not unlimited but subject to reasonable restrictions.⁸⁵

85 See United States v. Scheffer , 523 U.S. 303, 308, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413 (1998), (upholding an evidentiary rule which barred the admission of polygraph test results from court martial proceedings). "A defendant's interest in presenting such evidence may thus `bow to accommodate other legitimate interests in the criminal trial process.'" Id. The Supreme Court recognized in Scheffer that evidentiary rule-makers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials and such rules do not abridge a defendant's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve. Id. While Scheffer did not specifically address the scope of the Sixth Amendment's Compulsory Process Clause, the constitutional principles discussed therein appear more apropos to petitioner's complaint about the exclusion of evidence regarding parole eligibility from his capital murder trial than the authorities relied upon by petitioner in his brief. Writing for this Court in the case of Norman Evans Green v. Johnson, the late Judge H.F. Garcia recognized a number of legitimate concerns that are furthered by the Texas rule barring consideration of parole eligibility at the punishment phase of a Texas capital murder trial. The Fifth Circuit subsequently adopted Judge Garcia's analysis as its own. See Green v. Johnson , 160 F.3d 1029, 1044 (5th Cir. 1998), cert. denied , 525 U.S. 1174 (1999). The exclusion of evidence regarding petitioner's parole eligibility in the event he received a life sentence was neither arbitrary nor disproportionate to the legitimate concerns furthered by that rule, discussed by Judge Garcia and accepted by the Fifth Circuit.

Furthermore, this Court has expressly and specifically held that the State of Texas may properly distinguish between capital and non-capital defendants when determining whether to admit evidence and jury arguments regarding parole eligibility as the punishment phase of a criminal trial. Writing for this Court in Green v. Johnson , SA-94-CA-1008-HG, the late-District Judge H.F. Garcia analyzed and rejected the exact same equal protection argument raised by petitioner herein, as well as a plethora of other arguments and contentions similar to those raised by petitioner in his first half-dozen claims for federal habeas corpus relief herein:

The definition and classification of criminal offenses and the provision of punishments for violations of same generally lies within the sound discretion of the legislature, provided that no suspect classification or fundamental rights are implicated⁸⁶ The rule in Texas, which permits instructions to the jury on Texas parole law at the punishment phase of non-capital trials but which forbids similar instructions in capital murder trials does not impinge upon any suspect class nor on the exercise of any fundamental rights.⁸⁷ Under Texas law, there is no constitutional right to release on parole.⁸⁸

Given the obvious and significant distinction between capital and non-capital sentencing, the Texas Legislature could rationally conclude that injection of such a speculative issue as potential release on parole into the capital sentencing equation might skew the results of such proceedings or raise a myriad of other problems.⁸⁹ While it is true that a capital murder defendant is entitled to have the jury consider all relevant mitigating evidence, the state of Texas parole law at any given point in time is not "mitigating evidence."⁹⁰ Forbidding injection of parole issues into the punishment phases of capital murder trials is a rational approach to the legitimate state interest of focusing the jury's attention on the thrust of the Texas capital sentencing special issues, i.e., the defendant's blameworthiness, and does not violate equal protection principles.⁹¹

Likewise, petitioner's Eighth Amendment and Fourteenth Amendment due process claims are without merit. Petitioner argues that the failure of his trial court to instruct the jury at the punishment phase of his trial prevented his jury from fully understanding the true nature of a life sentence under applicable Texas law and thus, violated the principle announced by the Supreme Court in Simmons v. South Carolina.⁹² * * *

Petitioner's reliance on Simmons is misplaced for a number of reasons. First, the Supreme Court took great pains in its opinion in Simmons to distinguish states such as Texas, which do not provide capital sentencing juries with an option of life without parole, from the scheme in South Carolina which required an instruction on parole ineligibility.⁹³ Second, the Fifth Circuit has repeatedly refused to extend the rule in Simmons beyond those situations in which a capital murder defendant is statutorily ineligible for parole.⁹⁴

86 Smallwood v. Johnson , 73 F.3d 1343, 1351 (5th Cir. 1996), cert. denied , 519 U.S. 883 (1996).

87 See Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987), cert. denied , 484 U.S. 935 (1987); and Gray v. Lucas. 677 F.2d 1086, 1104 (5th Cir. 1982), cert. denied , 461 U.S. 910 (1983).

88 See Johnson v. Rodriguez , 110 F.3d 299, 305 n. 9 (5th Cir. 1997), cert. denied , 522 U.S. 995 (1997); Madison v. Parker , 104 F.3d 765, 768 (5th Cir. 1997); Allison v. Kyle , 66 F.3d 71, 74 (5th Cir. 1995); Orellana v. Kyle 65 F.3d 29, 31-32 (5th Cir. 1995), cert. denied , 516 U.S. 1059 (1996); Gilbertson v. Texas Board of Pardons and Paroles , 993 F.2d 74, 75 (5th Cir. 1993); Creel v. Keene , 928 F.2d 707, 709-12 (5th Cir. 1991), cert. denied , 501 U.S. 1210 (1991); and Williams v. Briscoe, 64lF.2d274, 276 (5th Cir. 1981), cert. denied , 454 U.S. 854 (1981). For an overview of Texas parole procedures,see Johnson v. Rodriguez, 110 F.3d at 302-04.

89 For instance, instructions on parole eligibility at the punishment phases of capital murder trials might tempt capital sentencing juries to consider such transitory, but public, issues as prison overcrowding, the identities of the membership of the Texas Board of Pardons and Paroles, or the recent track record of that Board in releasing violent offenders, as factors which should be weighed in reaching their verdict at punishment. Injection of parole into the capital sentencing equation could easily have different impacts at differing points in time, depending on the jury's perception of issues such as those listed above. For example, it is public knowledge that in the late-1980's under pressure from the federal courts to reduce prison crowding, the Texas Board of Pardons and Paroles regularly released on parole violent offenders convicted of heinous offenses; whereas the current practices of that same Board have led to calls by legislators for the out-right elimination of all parole as an anachronism. States must ensure that capital sentencing decisions rest on an individualized inquiry under which the character and record of the individual offender and the circumstances of the particular offense are considered. Romano v. Oklahoma , 512 U.S. 1, 7, 114 S.Ct. 2004, 2009, 129 L.Ed.2d 1 (1994). The Texas capital sentencing scheme is designed to focus the jury's attention at the punishment phase on the defendant's character and background and the circumstances surrounding the offense. The Texas Legislature could rationally conclude that injection of parole issues at the punishment phases of capital murder trial would invite consideration of factors unrelated to the defendant's blameworthiness and render Texas capital sentencing precisely the sort of haphazard process the Supreme Court condemned in Gregg v. Georgia , 428 U.S. 153, 189-90, 96 S.Ct. 2909, 2933, 49 L.Ed.2d 859 (1976).

90 In order to constitute mitigating evidence for Penry purposes, evidence of a defendant's background and character must relate to, and diminish the defendant's moral culpability for the offense with which he is charged. See Tucker v. Johnson , 115 F.3d 276, 281-82 (5th Cir. 1997), cert. denied , 522 U.S. 1017 (1997), (holding that neither intoxication, youth, nor self-inflicted chronic drug and alcohol abuse and the resulting arrested emotional development constitute unique handicaps with which the defendant was burdened through no fault of her own); Turner v. Johnson , 106 F.3d 1178, 1189 (5th Cir. 1997), (holding that evidence has mitigating relevance only if there is a nexus between the mitigating evidence and the criminal act); Harris v. Johnson , 81 F.3d 535, 539 (5th Cir. 1996), cert. denied, 517 U.S. 1227 (1996), (holding that no Penry instruction was necessary where there was no evidence showing that the defendant's borderline intelligence bore a nexus to his criminal actions); Allridge. _Scott , 41 F.3d 213, 223 (5th Cir. 1994), cert. denied , 514 U.S. 1108 (1995), (holding that no Penry instruction was necessary in the absence of evidence showing that the defendant's criminal conduct was attributable to the mental illness and abuse the had defendant suffered during a previous incarceration); Lackey_ v._ Scott , 28 F.3d 486, 489 (5th Cir. 1994), cert. denied , 513 U.S. 1086 (1995), (holding that evidence of the defendant's low intelligence and history of childhood abuse was not relevant for Penry purposes where there was no evidence showing the defendant's criminal act was attributable to same); Madden v. Collins , 18 F.3d 304, 307-08 (5th Cir. 1994), cert. denied , 513 U.S. 1156 (1995), (holding that evidence the defendant suffered from an anti-social personality, dyslexia, and a troubled childhood was not relevant for Penry purposes absent a showing that the defendant's criminal conduct was attributable to same); Barnard v. Collins , 958 F.2d at 638-39, (holding that, in order to warrant a Penry instruction, evidence that a defendant had a troubled childhood must be accompanied by evidence that the defendant's childhood experiences had a psychological effect on the defendant, i.e., that the defendant's criminal conduct was attributable to his disadvantaged background); and Graham v. Collins , 950 F.2dat 1033, (holding that "mitigating" evidence must be able to raise an inference "that the crime is attributable to the disability"). See also Barnard v. Collins, 958 F.2d at 639, (holding that evidence from lay witnesses that the defendant had a drinking problem and was intoxicated at the time of his offense was insufficient to permit the jury to conclude that the defendant therein suffered from alcoholism or drug addiction or some other "uniquely severe permanent handicap" through no fault of his own).

91 See Thompson v. Lynaugh , 821 F.2d 1054, 1062 (5th Cir. 1987), cert. denied , 483 U.S. 1035 (1987).

92 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

93 See Simmons v. South Carolina. 512 U.S. at 168 n. 8, 114 S.Ct. at 2196 n. 8.

94 See Johnson v. Scott, 68 F.3d 106, 111-12 (5th Cir. 1995), cert. denied , 517 U.S. 1122 (1996); Montoya v. Scott , 65 F.3d 405, 416 (5th Cir. 1995), cert. denied , 517 U.S. 1133 (1996); Allridge v. Scott , 41 F.3d at 222; and Kinnamon v. Scott , 40 F.3d 731, 733 (5th Cir. 1994), cert. denied , 513 U.S. 1054 (1994).

As the late-Judge Garcia so astutely noted in the passage quoted above, directing a jury to consider an issue as ethereal and transitory as a State's then-current parole system in the course of a capital sentencing proceeding does a grievous injustice to both the defendant and the State because it encourages the jury to consider a wide range of factors that are totally irrelevant to either the circumstances of the crime, the defendant's blameworthiness, or the legitimate purposes of capital sentencing, i.e., deterrence and retribution.⁹⁵ The Fifth Circuit subsequently affirmed Judge Garcia's ruling in Green in an opinion that quoted extensively from his opinion for this Court.⁹⁶ The Fifth Circuit has likewise reaffirmed in numerous recent opinions its understanding that neither voir dire of potential jurors nor punishment-phase jury instructions regarding parole eligibility for a life sentence are constitutionally necessary in a Texas capital murder trial.⁹⁷ There is simply no "clearly established" federal law holding that equal protection principles require either punishment-phase jury instructions or voir dire on parole eligibility in Texas capital murder cases.

95 While the constitutional prohibition on ex post facto laws might arguably prevent the Texas Legislature from increasing the length of time a convicted capital murderer must serve before becoming eligible for release on parole, nothing in the Constitution prohibits the Texas Legislature from retroactively amending the current Texas parole laws relevant to those convicted of capital murder to lower the number of a years a convicted capital murderer must serve before becoming eligible for release on parole. While the current political climate might render such a possibility unlikely, the possibility that Texas parole officials would ever parole an unrepentant, sociopathic serial killer like Kenneth McDuff might have once been considered equally unthinkable. However, following his release on parole by Texas parole officials, McDuff quickly left a trail of bodies in his wake, including two for which Texas juries subsequently convicted and sentenced him to death.

96 See Green v. Johnson , 160 F.3d 1029, 1044 (5th Cir. 1998), cert. denied. 525 U.S. 1174 (1999).

97 See Johnson v. Cockrell , 306 F.3d 249, 257 (5th Cir. 5th Cir. 2002), cert. denied , U.S. ___, 123 S.Ct. 1573, 155 L.Ed.2d 319 (2003), (rejecting due process argument seeking to extend holding in Simmons to Texas); Collier v. Cockrell , 300 F.3d 577, 583-86 (5th Cir. 2002), cert. denied , ___ U.S. ___, 123 S.Ct. 690, 154 L.Ed.2d 586 (2002), (rejecting due process, equal protection, and Eighth Amendment claims seeking to extend holding in Simmons to Texas); Tigner v. Cockrell , 264 F.3d 521, 525-26 (5th Cir. 2001), cert. denied , 534 U.S. 1164 (2002), (rejecting due process and equal protection arguments seeking to extend holding in Simmons to Texas); Rudd v. Johnson , 256 F.3d 317, 320 (5th Cir. 2001), cert. denied , 534 U.S. 1001 (2001), (rejecting due process arguments seeking to extend holding in Simmons to Texas); Wheat v. Johnson , 238 F.3d 357, 362 (5th Cir. 2001), cert. denied , 532 U.S. 1070 (2001), (rejecting claims that Fourteenth and Eighth Amendments required Texas to permit voir dire on parole issues in capital cases); Clark v. Johnson , 237 F.3d 273, 282 (5th Cir. 2000), cert. denied , 531 U.S. 1167 (2001), (holding that Teague foreclosed extension of Simmons holding to permit introduction of evidence regarding parole eligibility in capital trials); Soria v. Johnson , 207 F.3d 232, 243 (5th Cir. 2000), cert. denied , 530 U.S. 1286 (2000), (holding that the Constitution does not require Texas to permit voir dire regarding parole issues and rejecting due process arguments for extending Simmons holding to Texas); and Miller v. Johnson , 200 F.3d 274, 290-91 (5th Cir. 2000), cert. denied , 531 U.S. 849 (2000), (rejecting due process and Eighth Amendment arguments for extending Simmons holding to Texas).

3. AEDPA Standard of Review

As explained above, since the enactment of the AEDPA, the scope of federal habeas review has narrowed to an examination of whether the state courts rejecting constitutional claims on the merits acted in a manner contrary to clearly established Supreme Court precedent or unreasonably applied clearly established federal law. There is simply no clearly established federal law, as determined by the Supreme Court, which mandates either punishment-phase jury instructions, voir dire examination of potential jurors, or the admission of evidence regarding parole eligibility in a Texas capital murder trial. There was nothing objectively unreasonable in the refusal of the Texas Court of Criminal Appeals to either (1) extend the due process principles announced in Simmons to Texas or (2) extend Supreme Court Eighth Amendment precedent requiring an avenue for consideration by capital sentencing juries of "constitutionally relevant mitigating evidence" to mandate jury consideration of state parole statutes and regulations, or (3) extend generic equal protection principles to compel jury consideration of parole eligibility at the punishment phase of a Texas capital murder trial.

Petitioner has not identified any disputed or allegedly unreasonable factual determinations made by the Texas Court of Criminal Appeals in the context of the petitioner's direct appeal regarding his request for a parole-eligibility instruction and voir dire of potential jurors regarding parole eligibility. Nor could such an argument be made. The determinations of whether the petitioner was entitled to such an instruction and whether petitioner was entitled to such voir dire turned purely on questions of federal constitutional law.

Because the Texas Court of Criminal Appeals' rejections on the merits of the petitioner's Eighth and Fourteenth Amendment claims regarding his requests for a punishment-phase jury instruction and voir dire on parole eligibility were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States and because the petitioner has failed to demonstrate that the Texas Court of Criminal Appeals' rejection of those same claims in the context of petitioner's direct appeal resulted from an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, petitioner is not entitled to federal habeas corpus relief from this Court in conjunction with any of petitioner's first six or eleventh through thirteenth grounds for relief herein.

4. Teague Foreclosure

Furthermore, while the petitioner contends that his interpretation of the Fourteenth Amendment's Due Process Clause compels a rejection of the distinction recognized by the Supreme Court in Simmons , and which appears to remain in vouge with a majority of the Supreme Court, it is simply not within the authority of this Court to adopt a new rule of constitutional criminal procedure in the context of a federal habeas corpus proceeding. The same holds for petitioner's invitations that this Court fashion similar new rules premised on the Eighth Amendment and the Fourteenth Amendment's Equal Protection Clause.

Respondent correctly contends that petitioner's first six claims are foreclosed by the non-retroactivity doctrine of Teague v. Lane , under which federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review.⁹⁸ Under Teague , a "new rule" is one which was not dictated by precedent existing at the time the defendant's conviction became final."⁹⁹ 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.¹⁰⁰ This non-retroactivity doctrine applies equally to a novel application of an old rule.¹⁰¹

98 See Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994); and Teague v. Lane , 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989).

99 See O'Dell v. Motherland , 521 U.S. 151, 156, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (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"); and Caspari v. Johnson , 510 U.S. at 390, 114 S.Ct. at 953.

100 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 v. Bohlen , 510 U.S. at 390, 114 S.Ct. at 953.

101 See Stringer v. Black , 503 U.S. 222, 227-29, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992).

The rule advocated by petitioner herein, i.e., which mandates punishment-phase jury instructions and voir dire of potential capital murder jurors regarding parole eligibility in a Texas capital murder trial, is supported by no Supreme Court precedent existing as of the date the petitioner's conviction became final. 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.¹⁰² In fact, as of the present date, no federal court has ever held that either the Fourteenth Amendment's Equal Protection Clause, the Eighth Amendment, or the Fourteenth Amendment's Due Process Clause requires capital sentencing juries in jurisdictions such as Texas, where life without parole is not the only option other than death available to capital sentencing juries, to be instructed on the details of parole eligibility applicable to a life sentence or to be subjected to voir dire on same. Thus, the rule advocated by petitioner herein constitutes a "new rule" within the meaning of Teague and its progeny.¹⁰³

102 See Caspari v. Bohlen , 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Because the petitioner never sought certiorari review of his conviction and sentence following the Texas Court of Criminal Appeals' affirmation of both on direct appeal on March 31, 1999, petitioner's conviction became "final" for Teague purposes ninety (90) days thereafter, when the deadline for filing a petition for writ of certiorari with the United States Supreme Court expired. See Rule 13.1, Rules of the Supreme Court of the United States.

103 See Woods v. Cockrell , 307 F.3d 353, 361-62 (5th Cir. 2002); Johnson v. Cockrell. 306 F.3d at 257; Collier v. Cockrell , 300 F.3d at 583; Tigner v. Cockrell , 264 F.3d at 525; Wheat v. Johnson , 238 F.3d at 361-62; Clark v. Johnson , 227 F.3d at 282; Green v. Johnson , 160 F.3d at 1045 n. 16; Muniz v. Johnson , 132 F.3d at 224-25; and Johnson v. Scott , 68 F.3d 106, 112 n. 12 (5th Cir. 1995), cert. denied , 517 U.S. 1122 (1996). While petitioner's conviction became final for Teague purposesafter the date of the Supreme Court's opinion in Simmons, as explained above, the opinion in Simmons specifically excepted jurisdictions such as Texas from the rule announced in that case. Extending Simmons to Texas would, therefore, constitute adoption of a "new rule" for Teague purposes.Id.

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.¹⁰⁴ The new rule proposed by petitioner falls within neither of these two exceptions to the Teague doctrine.¹⁰⁵

104 See O'Dell v. Netherland , 521 U.S. at 157, 117 S.Ct. at 1973; Graham v. Collins , 506 U.S. 461, 478, 113 S.Ct. 892, 897-98, 122 L.Ed.2d 260 (1993).

105 See Clark v. Johnson , 227 F.3d at 282, (holding that extension of the Simmons rule to Texas would amount to adoption of a new rule of criminal procedure which would not fall within either of the exceptions of the Teague doctrine).

Thus the non-retroactivity rule of Teague forecloses adoption of the rule urged by petitioner herein, regardless of whether dressed in the guise of an Eighth Amendment, Equal Protection Clause, or Due Process Clause theory.

5. Conclusions

The Texas Court of Criminal Appeals' rejections on the merits of petitioner's due process, equal protection, and Eighth Amendment claims regarding punishment-phase jury instructions and voir dire regarding parole eligibility on direct appeal were wholly consistent with clearly established federal law, as pronounced by the United States Supreme Court. Extension of the holding in Simmons to Texas capital murder trials would require an implicit overruling of recent Supreme Court case law on that subject. Furthermore, extension of the Simmons holding to jurisdictions such as Texas, whether under the guise of a due process, equal protection, or Eighth Amendment theory, is foreclosed in this federal habeas corpus proceeding by the non-retroactivity doctrine of Teague. Therefore, none of the petitioner's first six, nor eleventh through thirteenth, claims for relief herein warrant federal habeas corpus relief.

C. Ineffective Assistance Claims

1. The Claims

In his seventh and eighth claims for federal habeas corpus relief herein, petitioner argues that his trial counsel rendered ineffective assistance by failing to (1) interview Victoria Wolford prior to trial and (2) investigate and present adequate mitigation evidence during the punishment phase of trial.¹⁰⁶

106 See Petition at pp. 11-15; and Memorandum, at pp. 26-41.

2. "Clearly Established" Supreme Court Precedent

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

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.¹⁰⁷

107 Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

In order to establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness."¹⁰⁸ 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.¹⁰⁹ The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight.¹¹⁰ It is strongly presumed that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.¹¹¹ An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law are virtually unchallengeable.¹¹² Counsel is required neither to advance every non-frivolous argument nor to investigate every conceivable matter inquiry into which could be classified as non-frivolous.¹¹³ A criminal defense counsel is not required to exercise clairvoyance during the course of a criminal trial.¹¹⁴ Likewise, the Sixth Amendment does not require that counsel do what is impossible or unethical; if there is no bona fide defense to the charge, counsel is not required to create one.¹¹⁵

108 Wiggins v. Smith , ___ U.S. ___, ___, 123 S.Ct. 2527, 2535 L.Ed.2d ___ (2003); Williams v. Taylor , 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000); Darden v. Wainwright , 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986); and Strickland v. Washington , 466 U.S. at 687-88, 104 S.Ct. at 2064.

109 See Strickland v. Washington , 466 U.S. at 687-91, 104 S.Ct. at 2064-66.

110 See Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993); Burger v. Kemp , 483 U.S. 776; 789, 107 S.Ct. 3114, 3123, 97 L.Ed.2d 638 (1987); and Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065-66.

111 See Strickland v. Washington , 466 U.S. at 690, 104 S.Ct. at 2066.

112 See Jones v. Jones , 163 F.3d 285, 300 (5th Cir. 1998), cert. denied , 528 U.S. 895 (1999); Ransom v. Johnson , 126 F.3d 716, 721 (5th Cir. 1997), cert. denied , 522 U.S. 944 (1997); Green v. Johnson , 116 F.3d 1115, 1122 (5th Cir. 1997), ("A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness."); Boyle v. Johnson , 93 F.3d 180, 187-88 (5th Cir. 1996), cert. denied , 519 U.S. 1120 (1997), (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson , 92 F.3d 1385, 1406-09 (5th Cir. 1996), cert. denied , 520 U.S. 1242 (1997), (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); and Bryant v. Scott , 28 F.3d 1411, 1435 (5th Cir. 1994), citing Strickland v. Washington. 466 U.S. at 691, 104 S.Ct. 2066; and Andrews v. Collins , 21 F.3d at 623, (holding that counsel acted reasonably in failing to further pursue the defendant's mental capacity or background where counsel had no reason to believe that further investigation would be useful).

113 See Neal v. Cain , 141 F.3d 207, 214-15 (5th Cir. 1998), (holding that petitioner's complaints regarding counsel's failure to raise specific defenses did not satisfy prejudice prong of Strickland where proposed defenses were without merit); Sones v. Hargett , 61 F.3d 410, 415 n. 5 (5th Cir. 1995): "Counsel cannot be deficient for failing to press a frivolous point."; United States v. Gibson , 55 F.3d 173, 179 (5th Cir. 1995): "Counsel is not required by the Sixth Amendment to file meritless motions."; Smith v. Collins , 977 F.2d 951, 960 (5th Cir. 1992), cert. denied , 510 U.S. 829, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993): "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources."; Koch v. Puckett , 907 F.2d 524, 527 (5th Cir. 1990): "counsel is not required to make futile motions or objections."; Schwander v. Blackburn , 750 F.2d 494, 500 (5th Cir. 1985), (holding that defense counsel is not required to investigate everyone whose name is mentioned by the defendant); and Murray v. Maggio , 736 F.2d 279, 283 (5th Cir. 1984): "Counsel is not required to engage in the filing of futile motions."

114 See Sharp v. Johnson , 107 F.3d 282, 290 n. 28 (5th Cir. 1997), citing Garland v. Maqgio , 717 F.2d 199, 207 (5th Cir. 1983), (holding that clairvoyance is not a required attribute of effective representation). See also Lackey v. Johnson , 116 F.3d 149, 152 (5th Cir. 1997), (holding that trial counsel was not ineffective for failing to discover evidence about which the defendant knew but withheld from his counsel).

115 See United States v. Cronic , 466 U.S. 648, 656 n. 19, 104 S.Ct. 2039, 2045 n. 19, 80 L.Ed.2d 657 (1984).

The proper standard for evaluating counsel's performance under the Sixth Amendment is "reasonably effective assistance."¹¹⁶ "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment."¹¹⁷ "Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."¹¹⁸ In order to establish that he has sustained prejudice, the convicted defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."¹¹⁹ "A reasonable probability is a probability sufficient to undermine confidence in the outcome."¹²⁰ The prejudice prong of Strickland focuses on whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair; unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.¹²¹

116 Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064.

117 Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2067.

118 Strickland v. Washington , 466 U.S. at 692, 104 S.Ct. at 2067.

119 Williams v. Taylor , 529 U.S. at 391, 120 S.Ct. at 1511-12; Strickland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068.

120 Woodford v. Visciotti. 537 U.S. 19, ___, 123 S.Ct. 357, 359, 154 L.Ed.2d 279 (2002), quoting Strickland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068.

121 Williams v. Taylor , 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17; Strickland v. Washington , 466 U.S. at 692, 104 S.Ct. at 2067.

3. AEDPA Review

a. Failure to Interview Wolford

(1) Factual Findings Supported by the Record

In the course of petitioner's state habeas corpus proceeding, the state trial judge specifically found that (1) petitioner's trial counsel's investigator attempted to personally interview Wolford but she declined to speak with him, (2) petitioner presented no evidence indicating that Wolford would have agreed to be interviewed by petitioner's trial counsel, (3) petitioner's trial counsel received and reviewed all of Wolford's written statements prior to trial, (4) Wolford's trial testimony was consistent with her pretrial statements and she offered no testimony that surprised petitioner's trial counsel, and (5) there was overwhelming evidence establishing that, while on parole, the petitioner committed the brutal murders of his mother, sister, niece, and Tassy Boone.¹²² The Texas Court of Criminal Appeals subsequently adopted the trial judge's factual findings.¹²³ Having independently reviewed the entire trial record and the verbatim transcript of the evidentiary hearing held in petitioner's state habeas corpus proceeding, this Court independently concludes that each of the foregoing factual determinations were supported by overwhelming evidence then before the state trial judge.¹²⁴

122 See Transcript, State Habeas Proceeding, at pp. 95-96.

123 See Ex parte Dennis Wayne Bagwell , No. 42,341-01 (Tex.Crim.App. September 29, 1999).

124 More specifically, petitioner's court-appointed investigator testified that (1) he went to the Guadalupe County Jail where Wolford was then detained but was unable to interview her because she had not placed his name on her list of approved visitors, (2) he also called the jail a few times but had no success getting in to see Wolford, (3) no law he was aware of required Wolford to speak with him, (4) it did not occur to him to write Wolford a letter requesting that she speak with him, but (5) he did review several written statements Wolford had given to law enforcement authorities. See S.F. State Habeas Hearing, testimony of Ray Hildebrand, at pp. 8-17, 22, and 24.
Petitioner's lead trial counsel testified that (1) prosecutors furnished him with an extraordinary amount of evidence during discovery, (2) an investigator was appointed to assist him in early-1996, (3) neither he nor his co-counsel spoke with Victoria Wolford prior to trial, (4) he reviewed Wolford's seven written statements prior to trial, (5) he represented petitioner in connection not only with the Wilson County murders but also with regard to the Guadalupe County case brought against petitioner for the murder of George Berry, (6) he did not go to the Guadalupe county Jail to see Wolford but did go there once to check on her list of visitors, (7) he never called nor wrote Wolford prior to trial, (8) he is aware of no information suggesting that Wolford would have agreed to speak with him prior to trial had he so requested, (9) Wolford's trial testimony, while different from her initial statement to law enforcement authorities, was consistent with her subsequent statements, (10) he was never aware of any information indicating that Wolford knew information that was different from that contained in her trial testimony, and (11) his co-counsel did not write to, telephone, or speak with Wolford prior to trial. See S.F. State Habeas Hearing, testimony of Alan Futrell, at pp. 28-57.
For unknown reasons, petitioner did not call Wolford to testify at the state habeas corpus hearing and did not offer any other evidence suggesting that she would have agreed to be interviewed by the petitioner's investigator or trial counsel prior to trial.

(2) No Deficient Performance

It is well-settled that a prosecution witness has a right not to be interviewed by the defense prior to trial.¹²⁵ The steps taken by petitioner's court-appointed investigator to contact Wolford were, under the circumstances, entirely reasonable and professional. Given that (1) Wolford was the key witness against the petitioner in both the Wilson/Atascosa County and Guadalupe County murder cases, (2) Wolford had furnished heavily corroborated statements suggesting that she had witnessed the petitioner brutally murder five people in a three-week period in September, 1995, (3) Wolford's statements regarding petitioner's threats against her were corroborated by the statement of another prosecution witness, i.e., Christine Posey, and (4) the fact petitioner's trial counsel had received copies of all of Wolford's numerous written statements given to law enforcement authorities, there was nothing objectively unreasonable with the decision by petitioner's defense team not to make further requests to Wolford for an interview prior to trial.¹²⁶ Thus, the state habeas court's conclusion that petitioner's complaints about his trial counsel's failure to interview Wolford prior to trial failed to satisfy the initial prong of Strickland 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 an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

(3) No Prejudice

Furthermore, the state habeas court also correctly concluded that this aspect of petitioner's ineffective assistance claims failed to satisfy the prejudice prong of Strickland. As explained above, petitioner offered the state habeas court absolutely no evidence showing that Wolford would have ever agreed, under any circumstances, to be interviewed by the defense prior to petitioner's capital murder trial. More significantly, petitioner offered the state habeas court absolutely no evidence showing that his trial counsel could have gained any new or additional insight into the case against petitioner or the existence of any new or additional factual or legal defensive theories had Wolford agreed to a pretrial interview. On the contrary, petitioner's trial counsel testified that Wolford's trial testimony was consistent with the written statements she gave to law enforcement authorities prior to trial, all of which said counsel reviewed well in advance of trial. This Court's independent review of those statements and Wolford's trial testimony confirms this same fact. While Wolford initially did initially deny any knowledge of the Wilson County murders, her subsequent statements were consistent with her trial testimony.¹²⁷ Petitioner has not alleged any specific facts showing that, had she consented to a pretrial interview, Wolford could have furnished his trial counsel with any additional information that could have benefitted petitioner at trial. Thus, petitioner failed to show that the failure of his trial counsel to personally request an interview with Wolford would have had any impact whatsoever on the outcome of either phase of petitioner's capital murder trial. Under such circumstances, the state habeas court's conclusion that this aspect of petitioner's ineffective assistance claims failed to satisfy the prejudice prong of Strickland was neither 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 an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

127 All of Wolford's statements were admitted into evidence during the evidentiary hearing held in petitioner's state habeas corpus proceeding and are attached to the verbatim transcription of the testimony at that hearing.
Wolford gave Texas Ranger Ronny Griffith a written statement on September 20, 1995 in which she denied any knowledge of the Wilson County murders. See S.F. State Habeas Hearing, at pp. 135-36. Both Wolford and Griffith testified to this same fact during petitioner's capital murder trial. See S.F. Trial, Volume 30 of 46, testimony of Victoria Wolford, at pp. 540, 595-96, 655, and 662-65; and testimony of Ronnie [sic] Griffith, at pp. 670-71, 692, 697, and 701. Petitioner's trial counsel introduced a copy of Wolford's first statement, dated September 20, 1995, and it was admitted into evidence during the punishment phase of petitioner's trial as Defendant's Exhibit No. 13. See S.F. Trial, Volume 38 of 46, testimony of Victoria Wolford, at p. 111. A copy of that statement appears in S.F. Trial, Volume 46 of 46, at p. 935. However, Wolford's subsequent statements to law enforcement officers (dated September 25 and 28, 1995) described the details of petitioner's murders of Leona, Libby, Tassy, and Reba in a manner wholly consistent with Wolford's trial testimony. See S.F. State Habeas Hearing, at pp. 137-47.

(4) Conclusions

The state trial judge concluded in the course of petitioner's state habeas corpus proceeding that petitioner's complaints regarding his trial counsel's failure to interview Wolford prior to trial satisfied neither prong of Strickland. ¹²⁸ The Texas Court of Criminal Appeals adopted these conclusions of law.¹²⁹ In so concluding, those state courts reasonably applied the correct legal standard, i.e., the dual prongs of Strickland , in a completely reasonable manner. Petitioner's seventh ground for relief herein, i.e., his complaint regarding his trial counsel's failure to interview Wolford prior to trial, does not warrant federal habeas corpus relief.

128 See Transcript, State Habeas Proceeding, at pp. 97-98.

129 See Ex parte Dennis Wayne Bagwell , No. 42,341-01 (Tex.Crim.App. September 29, 1999).

b. Failure to Investigate, Develop, and Introduce Mitigating Evidence

(1) Factual Findings Supported by the Record

In the course of petitioner's state habeas corpus proceeding, the state trial judge found that (1) petitioner and his family members met with petitioner's trial counsel several times prior to trial and discussed petitioner's childhood with said counsel, (2) despite being given opportunities to do so, neither the petitioner nor his sister Dell Lackey informed petitioner's trial counsel of the details of petitioner's allegedly abusive childhood, (3) had petitioner's trial counsel known of the information regarding petitioner's childhood history of abuse, said counsel would have introduced same at trial, (4) there was overwhelming evidence the petitioner committed four brutal murder, including those of his own mother, sister, niece, and an unrelated teenager, as well as the brutal murder a few weeks earlier of an elderly man, (5) at the time of those murders, the petitioner was on parole from a conviction for attempted capital murder, and (6) the petitioner (a) had a prior conviction for assault, (b) made numerous threats of violence against law enforcement personnel, (c) had a history of parole violations and disciplinary violations while incarcerated, and (d) told Wolford that "God put me here to kill some people,"¹³⁰ The Texas Court of Criminal Appeals subsequently adopted the trial judge's factual findings.¹³¹ Having independently reviewed the entire trial record and the verbatim transcript of the evidentiary hearing held in petitioner's state habeas corpus proceeding, this Court independently concludes that each of the foregoing factual determinations were supported by the evidence then before the state trial judge.¹³²

130 See Transcript, State Habeas Proceeding, at pp. 99-100.

131 See Ex parte Dennis Wayne Bagwell , No. 42,341-01 (Tex.Crim.App. September 29, 1999).

132 More specifically, at the evidentiary hearing held in petitioner's state habeas corpus proceeding, after testifying regarding the details of petitioner's emotionally and physically abusive childhood, petitioner's sister Dell Lackey admitted that (1) she had not mentioned the beatings she and the petitioner received as children from her father (who was petitioner's step father), (2) she had the opportunity to tell petitioner's trial counsel about petitioner's history of abuse but did not do so, (3) she did not furnish petitioner's trial counsel with any details about petitioner's abused childhood except for relating that her step-father used to force the petitioner to sit and stare at a blank television screen for extended periods of time. See S.F. State Habeas Hearing, testimony of Dell Lackey, at pp. 98-101. Likewise, at the same hearing, the petitioner testified that his trial counsel had given him opportunities prior to trial to discuss petitioner's childhood.Id., testimony of Dennis Bagwell, at p. 107. Finally, petitioner's lead trial counsel testified that (1) neither Dell Lackey nor the petitioner ever told him about Leona or her husband ever being abusive toward the petitioner or their other children, (2) neither Dell Lackey nor the petitioner ever told him about the incidents in which petitioner's step-father forced the petitioner to sit and watch a blank television screen, (3) he was never told of the allegations of Leona's promiscuity, (4) he conferred extensively with the petitioner regarding the petitioner's childhood, adolescence, and young adult life, and (5) he presented every bit of mitigation evidence at trial that he was aware of.Id., testimony of Alan Futrell, at pp. 108-19.

(2) No Deficient Performance

An attorney's failure to investigate the case against the defendant and to interview witnesses can support a finding of ineffective assistance.¹³³ In fact, defense counsel in a capital murder proceeding have a duty to conduct a thorough investigation into the defendant's background.¹³⁴ However, in order to establish that counsel was rendered ineffective by virtue of a failure to investigate the case against a defendant or to discover and present evidence, a convicted defendant must do more than merely allege a failure to investigate in the abstract; he must state with specificity what the investigation would have revealed, what evidence would have resulted from that investigation, and how such would have altered the outcome of the case.¹³⁵ Furthermore, when a trial counsel's decision not to pursue further investigation into a potential defense or into an area of potential mitigating evidence is based on investigation and consultation with the defendant which leads the attorney to believe that further investigation would be fruitless, that decision may not be challenged as unreasonable.¹³⁶ The extent of an attorney's investigation into an area must be viewed in the context of the defendant's cooperation with the attorney's investigation and with a heavy measure of deference to counsel's judgments.¹³⁷

133 See Moore v. Johnson , 194 F.3d 586, 608 616 (5th Cir. 1999); and Bryant v. Scott , 28 F.3d at 1435.

134 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2535; and Williams v. Taylor , 529 U.S. at 396, 120 S.Ct. at 1514-15.

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made made less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Strickland v. Washington , 466 U.S. at 690-91, 104 S.Ct. at 2066 (emphasis added).

135 See Moawad v. Anderson , 143 F.3d 942, 948 (5th Cir. 1998), cert. denied , 525 U.S. 952 (1998); Anderson v. Collins , 18 F.3d 1208, 1221 (5th Cir. 1994); Nelson v. Hargett 989 F.2d 847, 850 (5th Cir. 1993); United States v. Green , 882 F.2d 999, 1003 (5th Cir. 1989); Lockhart v. McCotter , 782 F.2d 1275, 1282-83 (5th Cir. 1986), cert. denied , 479 U.S. 1030 (1987); Alexander v. McCotter. 775 F.2d 595, 603 (5th Cir. 1985); Schwander v. Blackburn. 750 F.2d 494, 499-500 (5th Cir. 1985); and Ross v. Estelle. 694 F.2d 1008, 1011 (5th Cir. 1983).

136 See Strickland v. Washington. 466 U.S. at 690-91, 104 S.Ct. at 2066; Carter v. Johnson , 131 F.3d at 465; Boyle v. Johnson , 93 F.3d at 187-88; West v. Johnson , 92 F.3d at 1406-09; and Andrews v. Collins , 21 F.3d at 623.

137 See Strickland v. Washington. 466 U.S. at 691, 104 S.Ct. at 2066; Carter v. Johnson , 131 F.3d at 463; and Randle v. Scott , 43 F.3d 221, 225 (5th Cir. 1995), cert. denied , 515 U.S. 1108 (1995), (holding that trial counsel was not ineffective for failing to investigate the validity of the defendant's prior conviction where the defendant was aware that the prior conviction had been reversed but failed to disclose same to his counsel and, instead, instructed his counsel to cease investigation into the matter so as to expedite the defendant's entry of a guilty plea). However, an attorney who is aware of potential mitigating evidence is obligated to investigate the existence of such evidence beyond merely communicating with the defendant. Ransom v. Johnson , 126 F.3d at 723.

The failure to present mitigating evidence during the sentencing phase of a capital trial is not, per se, deficient performance.¹³⁸ Counsel does, however, have a duty to make a reasonable investigation into available mitigating evidence or to make a reasonable decision that makes particular investigations unnecessary.¹³⁹ Counsel is also obligated to investigate beyond merely communicating with his client once counsel becomes aware of the possible existence of potentially mitigating evidence.¹⁴⁰

138 See Ransom v. Johnson , 126 F.3d at 723; Wiliams v. Cain , 125 F.3d at 277; and West v. Johnson , 92 F.3d at 1408.

139 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2535; Williams v. Taylor , 529 U.S. at 396, 120 S.Ct. at 1514-15; Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2066; and Williams v. Cain , 125 F.3d at 277.

140 Ransom v. Johnson, 126 F.3d at 723.

Petitioner's trial counsel did not render deficient performance in this case by failing to discover information uniquely within the personal knowledge of the petitioner and his family which the petitioner and his family chose not to reveal or disclose to said counsel.¹⁴¹ The state habeas courts made factual findings, fully supported by the evidence before them, that the petitioner and his family had many opportunities to disclose the details of petitioner's allegedly abusive childhood to petitioner's trial counsel but failed to do so. The testimony of petitioner's trial counsel at the evidentiary hearing held in petitioner's state habeas corpus proceeding fully supports the state habeas court's factual findings in this regard. At both that hearing and the punishment phase of petitioner's trial, petitioner's trial counsel demonstrated a willingness to present any mitigating evidence regarding his client's background of which the petitioner had made said counsel aware. Petitioner's trial counsel cannot be faulted for failing to discover, develop, and introduce evidence that the petitioner and his family chose to withhold from said counsel. While trial counsel in a capital murder trial have a duty to independently investigate the existence of mitigating evidence,¹⁴² that burden doesnot require said counsel to exercise clairvoyance.¹⁴³

141 See Johnson v. Cockrell , 306 F.3d at 252-53; Soria v. Johnson , 207 F.3d at 250-51; Lackey v. Johnson , 116 F.3d at 152, (holding that trial counsel was not ineffective for failing to discover evidence about which the defendant knew but withheld from his counsel); and Sharp v. Johnson , 107 F.3d at 286.

142 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2535; Williams v. Taylor , 529 U.S. at 396, 120 S.Ct. at 1514-15; Strickland v. Washington , 466 U.S. at 691, 104 S.Ct. at 2066: "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."; Ladd v. Cockrell , 311 F.3d 349, 358 (5th Cir. 2002); Foster v. Johnson , 293 F.3d 766, 778 (5th Cir. 2002), cert. denied , ___ U.S. ___, 123 S.Ct. 625, 154 L.Ed.2d 532 (2002); and Neal v. Puckett , 286 F.3d 230, 236 (5th Cir. 2002), cert. denied , ___ U.S. ___, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003): "in the context of a capital sentencing proceeding, defense counsel has the obligation to conduct a reasonably substantial, independent investigation into potential mitigating circumstances."

143 See Sharp v. Johnson , 107 F.3d at 290 n. 28, (holding that clairvoyance is not a required attribute of effective representation); and Lackey v. Johnson , 116 F.3d at 152, (holding that trial counsel was not ineffective for failing to discover evidence about which the defendant knew but withheld from his counsel).

Petitioner does not allege that there ever existed any means for his trial counsel to learn the details of petitioner's allegedly abused childhood other than through interviews with petitioner and his family. It is clear from the record of the petitioner's trial and state habeas corpus proceeding that petitioner's trial counsel did interview the petitioner and his family and friends and that these interviews included discussions about the petitioner's childhood. This is not a case in which the petitioner was institutionalized as a child or in which any independent authority might have possessed records detailing the petitioner's allegedly abusive childhood. The petitioner, his sister, and the petitioner's trial counsel all testified that said counsel interviewed extensively the petitioner's family and the petitioner regarding the petitioner's childhood in the search for mitigating evidence. The state trial judge found as much in the course of petitioner's state habeas corpus proceeding and the Texas Court of Criminal Appeals adopted those factual findings.

Moreover, petitioner's trial counsel did not abandon petitioner at the punishment phase of trial. On the contrary, petitioner's trial counsel presented mitigating evidence at both phases of petitioner's capital murder trial. At the guilt-innocence phase of trial, petitioner's trial counsel presented testimony (1) from an expert witness regarding the effects of cocaine abuse,¹⁴⁴ (2) from several of the petitioner's friends and acquaintances regarding the petitioner's background and emotional reaction to the death of his mother,¹⁴⁵ and (3) from the petitioner's family regarding his unusually emotional state following the murder of his mother.¹⁴⁶ At the punishment phase of trial, petitioner's trial counsel presented petitioner's former parole officer, petitioner's former spouse, a close friend of Leona McBee, and petitioner's half-sisters, all of whom asked the jury to spare the petitioner's life.¹⁴⁷ Petitioner's former parole officer also testified that the petitioner (1) had made efforts while on parole to remain drug-free and maintain employment, (2) was open to direction and cooperative, (3) was a hard worker but lacked social skills, and (4) argued with Leona but loved his mother and had a close relationship with her.¹⁴⁸ She also testified that Leona was the petitioner's most active supporter and advocate.¹⁴⁹ The petitioner's former wife also testified that the petitioner had a four-year-old daughter who deserved a chance to get to know her father.¹⁵⁰

144 See S.F. Trial, Volume 35 of 46, testimony of Dr. Michael Arambula, at pp. 1896-1901 1908-32.

145 More specifically, on cross-examination after she was called as a prosecution witness, petitioner's trial counsel elicited testimony from petitioner' s friend that the petitioner (1) had dropped out of school in junior high, (2) had a temper, was profane, and liked to threaten people, but (3) was not threatening to those who knew him, (4) had engaged in a civil telephone conversation with his mother shortly before the murders at the Boone residence, and (5) was trembling and visibly upset about his mother's murder. See S.F. Trial, Volume 33 of 46, testimony of Ida Marie Kelly, at pp. 1547-55, 1568-69, 1571, and 1573. Petitioner's trial counsel also called a friend of the petitioner who described the petitioner as "bummed out" and upset about his mother's death.See S.F. Trial, Volume 35 of 46, testimony of Virginia Talley, at pp. 1980-81. Petitioner's trial counsel also called two friends of the petitioner who testified that the petitioner appeared visibly upset shortly after he was informed of his mother's murder. See S.F. Trial, Volume 36 of 46, testimony of Margie Grantham, at pp. 2042; and testimony of Calvin Grantham, at pp. 2049-51. One of these same witnesses also testified that the petitioner had "given his life to the Lord" six or seven years before the murders. Id., testimony of Margie Grantham, at p. 2037. Petitioner's trial counsel also presented another family friend who testified the petitioner appeared visibly shaken and reacted emotionally when he went to the funeral home to view his mother's body. See S.F. Trial, Volume 36 of 46, testimony of Regina "Gigi" Lorch, at pp. 2138 and 2143-45.

146 See S.F. Trial, Volume 36 of 46, testimony of Linda Talley Champagne, at pp. 2067-68; and testimony of Dell Lackey, at pp. 2109. One of petitioner's half-sisters also testified that the petitioner had experienced a disrupted childhood following the divorce of Leona from her father. Id., testimony of Dell Lackey, at pp. 2121-23.

147 See S.F. Trial, Volume 40 of 46, testimony of Angela Keresztury, at pp. 493 497; testimony of Linda Champagne, at p. 522; testimony of Dell Lackey, at pp. 528-29; and testimony of Elizabeth Bagwell, at pp. 555 568.

148 See S.F. Trial, Volume 40 of 46, testimony of Angela Keresztury, at pp. 479-89.

149 Id., testimony of Angela Keresztury, at pp. 487 504.

150 See S.F. Trial, Volume 40 of 46, testimony of Elizabeth Bagwell, at pp. 546-58 568.

While the petitioner's new evidence of his allegedly abusive childhood was double-edged in nature,¹⁵¹ this is not a case in which a capital defense counsel made a tactical decision not to present such evidence because of concerns it might harm his client.¹⁵² On the contrary, petitioner's trial counsel indicated during his testimony at the state habeas hearing that he would have been willing to present any mitigating evidence had petitioner or his family informed said counsel of same during his interviews with them.¹⁵³ In view of the state habeas court's factual determinations, fully supported by the evidence before that court, that the petitioner and his family failed to disclose the details of petitioner's allegedly unsupervised, abused, childhood to petitioner's trial counsel during their interviews, said counsel's failure to discover and develop this same information into admissible evidence was not objectively unreasonable. The state habeas court's conclusion that petitioner's complaints about his trial counsel's failure to discover and develop evidence regarding petitioner's allegedly abused childhood failed to satisfy the initial prong of Strickland 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 an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

151 See Ladd v. Cockrell , 311 F.3d at 360, (recognizing that, while evidence showing a capital murder defendant was inadequately supervised as a child might permit an inference that he was not morally culpable for his behavior, that same evidence might also suggest the defendant, as a product of his environment, was likely to continue to be dangerous in the future).

152 One practical problem from the defense's strategic or tactical perspective with introducing evidence of petitioner's allegedly abused childhood was that even if such evidence might have reduced petitioner's moral culpability for murdering the woman who was at least partially responsible for the abuse and neglect the petitioner suffered as a child, i.e., petitioner's mother Leona, the prosecution could have countered by arguing that such evidence did not reduce the petitioner's moral culpability for having brutally murdered his half-sister Libby, his four-year-old niece, or Ron Boone's teenage granddaughter, none of whom are alleged to have ever abused the petitioner. Furthermore, as noted by the Fifth Circuit in Ladd v. Cockrell, supra , such evidence would have tended to lead to an affirmative answer to the sentencing special issue regarding future dangerousness.

153 See S.F. State Habeas Hearing, testimony of Alan Futrell, at pp. 109-18.

(3) No Prejudice

In a capital sentencing proceeding, the prejudice analysis focuses on whether there is a reasonable probability that, absent counsel's errors, a life sentence would have been imposed.¹⁵⁴

154 See Wiggins v. Smith , ___ U.S. at ___, 123 S.Ct. at 2542; Strickland v. Washington , 466 U.S. at 695, 104 S.Ct. at 2069; Carter v. Johnson , 131 F.3d at 463; Ransom v. Johnson , 126 F.3d at 723; Green v. Johnson , 116 F.3d at 1122, (holding that the proper inquiry is whether the defendant has demonstrated a reasonable probability that the jury would not have imposed the death sentence in the absence of errors by counsel); and Belyeu v. Scott. 67 F.3d at 538.

In the course of the petitioner's state habeas corpus proceeding, the state trial judge characterized the evidence of the petitioner's guilt as "overwhelming" and the nature of the four murders for which the petitioner was convicted as "brutal."¹⁵⁵ Having independently reviewed the entire record from the petitioner's state trial, appellate, and habeas corpus proceedings, this Court concludes that both those characterizations grossly understate the quality and quantity of evidence presented by the prosecution at trial. That evidence showed the petitioner's assaults upon his elderly mother, his half-sister, his four-year-old niece, as well as teenager Tassy Boone and elderly George Berry, involved application of force vastly beyond that which was necessary to kill any of those five persons.¹⁵⁶ Furthermore, the petitioner made attempts to conceal the nature of his crimes, posing at least one body and taking items from the crime scene which he apparently had no intention of keeping or selling. The state trial court record includes absolutely no indication the petitioner ever made any expression of remorse for his crimes in the presence of the jury.¹⁵⁷ The record before the petitioner's capital sentencing jury also included compelling evidence showing the petitioner had a demonstrated history of parole violations, making threats against law enforcement personnel (including correctional officers), and committing serious disciplinary violations while incarcerated.

155 See Transcript, State Habeas Proceeding, at p. 99.

156 More specifically, Leona McBee's body bore indications that she had been strangled and repeatedly beaten with several different objects, resulting in, among other injuries, a depressed skull fracture and the fracture of her cervical vertebrae. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 334-97; and Volume 35 of 46, testimony of William Russell Oliver, at pp. 1780-99.
Libby Best was shot twice at point-blank range, with one of the shots that killed her coming with the muzzle of the rifle pressed firmly against her ear. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 444-78.
Four-year-old Reba Best suffered massive trauma to the back of her head and shattered the back of her skull. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 479-94; and Volume 35 of 46, testimony of William Russell Oliver, at pp. 1859-65.
Tassy Boone was not only strangled, beaten in excess of twenty times with several different objects, and sexually assaulted, but suffered the indignity of having her corpse stripped naked and posed in a particularly lurid manner. See S.F. Trial, Volume 29 of 46, testimony of Carolyn H. Rivercomb, at pp. 406-38; Volume 35 of 46, testimony of William Russell Oliver, at pp. 1800-17, 1828-42, and 1849-55; Volume 28 of 46, testimony of Calvin Pundt, at pp. 218-20, 225-29; and State Exhibit Nos. 51-52, found in S.F. Trial, Volume 46 of 46, at pp. 50-51.
George Berry's injuries displayed similar indications of not merely extreme, but frenzied, violence, including a completely crushed throat, partially severed thyroid, and hemorrhage of the lining of the brain.See S.F. Trial, Volume 39 of 46, testimony of Robert J. Bayardo, at pp. 339-50.

157 Even at the evidentiary hearing held in petitioner's state habeas corpus proceeding, the petitioner offered absolutely no indication he felt any remorse for his crimes or any empathy whatsoever for any of his victims or their survivors. See S.F. State Habeas Hearing, testimony of Dennis Bagwell, at pp. 102-07.

In the face of such evidence, there is simply no reasonable probability that, but for the failure of petitioner's trial counsel to present evidence showing that the petitioner (1) was often unsupervised as a child, (2) slept in the same room while his mother engaged in intercourse with a man not her husband, (3) was forced to sit and stare at a blank television screen for extended periods of time by an alcoholic step-father, and (4) was beaten on several occasions by the same step-father, the outcome of the punishment phase of the petitioner's trial would have been any different.¹⁵⁸ Petitioner offered the state court absolutely no evidence suggesting that any of the alleged physical or emotional abuse inflicted upon the petitioner by his alcoholic step-father ever required medical or psychiatric treatment or had any long-term impact on the petitioner's emotional development.¹⁵⁹

158 As noted by the Fifth Circuit in Ladd v. Cockrell , such evidence was, at best, double-edged in nature and would have possibly assisted the jury in answering the first capital sentencing special issue in a manner adverse to petitioner. See Ladd v. Cockrell, 311 F.3d at 360, (recognizing that evidence showing a capital murder defendant was inadequately supervised as a child could be adverse to the defendant's position on the issue of future dangerousness).

159 In point of fact, the petitioner offered the state habeas court absolutely no evidence showing either that (1) he was ever aware that his mother engaged in intercourse in his presence, (2) he ever sustained any physical injury at the hands of his step father, or (3) he could even recall any of the incidents to which his half-sister Dell Lackey testified she had witnessed. On the contrary, Ms. Lackey's testimony included an admission that she was unaware whether the knew his mother had once slept with a man while the petitioner was in the same room with her. See S.F. State Habeas hearing, testimony of Dell Lackey, at p. 96. Likewise, while Ms. Lackey testified that both she and the petitioner were beaten by her father, who was also petitioner's step-father, she made no mention of any specific injuries she or the petitioner sustained as a result of those beatings, much less any injuries which required medical treatment. Finally, petitioner offered the state habeas court absolutely no evidence showing that any of the abuse he allegedly sustained at the hands of his alcoholic step-father ever caused petitioner to suffer any emotional or psychiatric problems.

Where, as here, (1) the evidence of a capital murder defendant's guilt is overwhelming, (2) the nature of the capital offense is truly horrific,¹⁶⁰ (3) the defendant has a demonstrated history of assaultive conduct, (4) the defendant has a demonstrated history of disruptive behavior while in custody, and (5) the defendant abjectly refuses to make any sincere act of contrition or expression of remorse for his offense, evidence the defendant's trial counsel failed to present mitigating evidence showing the defendant suffered sporadic, relatively minor, childhood abuse is insufficient to cast any doubt on the outcome of the punishment phase of a capital murder trial.¹⁶¹

160 It cannot be over-emphasized that the petitioner was convicted of murdering three members of his own family, including the person the petitioner's former parole officer described as petitioner's "only ally."See S.F. Trial, Volume 40 of 46, testimony of Angela Keresztury, at p. 487. Nor can it be overemphasized that the degree of force the petitioner employed in all five of his murders was extreme.

161 See Ladd v. Cockrell , 311 F.3d at 360-61.

Given the horrific nature of the petitioner's offenses, the number of murders the petitioner committed, and the petitioner's failure to make any sincere expression of remorse in the jury's presence, there is no reasonable probability that the outcome of the punishment phase of his trial would have been any different had Dell Lackey testified at the punishment phase of the petitioner's capital murder trial in the same manner that she did at the evidentiary hearing held in petitioner's state habeas corpus proceeding.

Under such circumstances, the state habeas court's conclusion that petitioner's complaints about his trial court's failure to investigate and present mitigating evidence failed to satisfy the prejudice prong of Strickland 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 an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

(4) Conclusions

The state trial judge concluded in the course of petitioner's state habeas corpus proceeding that petitioner's complaints regarding his trial counsel's failure to investigate and present mitigating evidence satisfied neither prong of Strickland. ¹⁶² The Texas Court of Criminal Appeals adopted these conclusions of law.¹⁶³ In so concluding, those state courts reasonably applied the correct legal standard, i.e., the dual prongs of Strickland , in a completely reasonable manner. Petitioner's eighth ground for relief herein, i.e., his complaint regarding his trial counsel's alleged failure to investigate and present mitigating evidence, does not warrant federal habeas corpus relief.

162 See Transcript, State Habeas Proceeding, at pp. 100-02.

163 See Ex parte Dennis Wayne Bagwell , No. 42,341-01 (Tex.Crim.App. September 29, 1999).

D. Complaint About Leg Restraints

1. The Claim

In his ninth ground for relief herein, petitioner argues that his constitutional rights were violated when he was placed in leg restraints for the duration of his trial.¹⁶⁴

164 See Petition, at pp. 15-16; and Memorandum, at pp. 41-46.

2. The State Court Proceedings

At a pretrial hearing held September 20, 1996, the prosecution moved to have the petitioner restrained while in the courtroom, based upon petitioner's threats against law enforcement personnel during petitioner's pretrial detention.¹⁶⁵ The prosecution introduced testimony from a Wilson County Deputy Sheriff indicating that (1) the petitioner had made numerous threats against law enforcement personnel during his pretrial detention, (2) unidentified members of the families of his victims had likewise threatened the petitioner, and (3) restraining the petitioner through the use of a leg brace would make it easier for court security personnel to remove the petitioner in the event of an incident in the courtroom and reduce the likelihood the petitioner would be able to retaliate against anyone who attacked him in the courtroom.¹⁶⁶ An investigator for the Wilson County Sheriff's Department testified that he personally witnessed an outburst by the petitioner on May 28, 1996 in which the petitioner threatened several law enforcement personnel, including a specific threat to "take one of you out before we hit the floor.¹⁶⁷ While petitioner's trial counsel did elicit testimony from both these witnesses indicating that the petitioner had not actually physically assaulted anyone during his pretrial detention,¹⁶⁸ the petitioner offered no evidence to rebut the testimony regarding the petitioner's many threats against law enforcement personnel. The state trial judge granted the prosecutor's motion and directed that (1) the leg restraint would be worn beneath the petitioner's clothing, (2) the petitioner not be shown to the jury or any prospective jurors in any restraint, and (3) the petitioner's legs be concealed while the petitioner was seated at the table in the courtroom.¹⁶⁹

165 See S.F. Trial, Volume 9 of 46, at pp. 510-31.

166 See S.F. Trial, Volume 9 of 46, testimony of Johnny Deagen, at pp. 512-18.

167 Id., testimony of Calvin Pundt, at pp. 520-22.

168 Id. , testimony of Johnny Deagen, at pp. 516-17; and testimony of Calvin Pundt, at p. 522.

169 See S.F. Trial, Volume 9 of 46, at pp. 528-30.

Petitioner made no complaint regarding the leg restraint either throughout the remainder of his trial or on direct appeal.

In his state habeas corpus application, petitioner complained, in part, that, because of the presence of two law enforcement officers near the petitioner throughout trial and the presence of boxes stacked in front of the defense table, one member of the jury speculated, correctly, that the petitioner was restrained in some manner and that this supposition led him to believe the petitioner was a dangerous man.¹⁷⁰ However, the only evidence offered by petitioner to support these assertions was a rank hearsay affidavit from the petitioner's investigator relating what he had allegedly been told by a member of the petitioner's petit jury.¹⁷¹

170 See Transcript, State Habeas Proceeding, at pp. 27-29.

171 See Transcript, State Habeas Proceeding, at p. 42. Petitioner offered the state habeas court no explanation for his inability to secure an affidavit from the juror himself.

The same state trial judge who presided over petitioner's trial found in the course of petitioner's state habeas corpus proceeding that, while the petitioner's legs were shackled during trial, his legs were kept from the jury's view.¹⁷² The state trial judge did not hold an evidentiary hearing on this portion of petitioner's state habeas corpus application,¹⁷³ concluding instead that (1) the hearsay statements of the investigator relating the juror's speculation regarding leg restraints did not constitute admissible evidence, (2) petitioner's complaint regarding the leg restraint had not been presented on direct appeal and was not cognizable in a state habeas corpus proceeding, and (3) even if considered on the merits, petitioner's complaint did not warrant relief because no juror had actually witnessed the petitioner in restraints and the petitioner had made no showing that he was prejudiced by anything the jurors actually did witness before or during trial.¹⁷⁴ The Texas Court of Criminal Appeals adopted these findings and conclusions when it rejected petitioner's state habeas corpus application.¹⁷⁵

172 See Transcript, State Habeas Proceeding, at p. 103.

173 While petitioner complains herein that he was not afforded an evidentiary hearing on this aspect of his state habeas corpus application, petitioner fails to explain why the state trial judge's first-hand view of the petitioner's physical appearance during trial was inadequate to permit the trial judge to make the limited factual findings that same judge made in the course of petitioner's state habeas corpus proceeding. In short, petitioner offers this Court absolutely no specific factual allegations showing that the state trial judge's factual findings in connection with this aspect of petitioner's state habeas corpus application were in any manner incorrect. Likewise, petitioner also furnishes this Court with no rational explanation for his failure to furnish the state habeas court with an affidavit based on personal knowledge suggesting that any of his jurors witnessed anything inappropriate during the petitioner's trial. Finally, petitioner offered the state habeas court, and offers this Court, no affidavits or otheradmissible evidence controverting the state trial judge's factual findings made in petitioner's state habeas corpus proceeding regarding what the jury could and could not see in terms of the petitioner's leg restraints.

174 See Transcript, State Habeas Proceeding, at pp. 103-04.

175 See Ex parte Dennis Wayne Bagwell, No. 42,341-01 (Tex.Crim.App. September 29, 1999).

3. "Clearly Established" Supreme Court Precedent

The United States Supreme Court acknowledged in Holbrook v. Flynn that the inherently prejudicial practice of leg shackling should be permitted only where justified by an essential state interest specific to the trial.¹⁷⁶ In Holbrook , the customary courtroom security force was supplemented by four uniformed state troopers sitting in the first row of the spectator section during respondent's entire trial. The Supreme Court held that the deployment of troopers was intimately related to the state's legitimate interest in maintaining custody during the proceedings and that the troopers' presence was not so inherently prejudicial that respondent was denied his right to a fair trial.¹⁷⁷ The Supreme Court set out the standard for reviewing a constitutional challenge to a state court proceeding, noting that in its supervisory capacity,

176 Holbrook V. Flynn , 475 U.S. 560, 568-569, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986).

177 See Holbrook v. Flynn , 475 U.S. at 568, 106 S.Ct. at 1346: "While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable."

our task here is not to determine whether it might have been feasible for the State to have employed less conspicuous security measures in the courtroom. * * * All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to a defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.¹⁷⁸

178 Holbrook v. Flynn , 475 U.S. at 572, 106 S.Ct. at 1347-48

Prior to Holbrook , the Supreme Court held in Illinois v. Allen that shackling a defendant is not per se unconstitutional, but is within the sound discretion of the trial judge as he maintains order in a criminal trial:

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. * * * We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . .: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.¹⁷⁹

179 Illinois V. Allen , 397 U.S. 337, 343-344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970) (emphasis added).

While the Supreme Court's discussion of physical restraints in Holbrook did acknowledge the strict scrutiny that must accompany the use of restraints on a defendant in the courtroom, its discussion of that point made clear that it was addressing restraints on criminal defendants that were visible to the jury.¹⁸⁰ Furthermore, the Supreme Court made clear in Holbrook that the subjective assessment of the courtroom's arrangement by individual jurors is not dispositive of the issue of whether a procedure is inherently prejudice.¹⁸¹

180 See Holbrook v. Flynn. 475 U.S. at 568, 106 S.Ct. at 1345, quoting Illinois v. Allen. 397 U.S. at 344, 90 S.Ct. at 1061.

181 See Holbrook v. Flynn , 475 U.S. at 570, 106 S.Ct. at 1346-47, ("Whenever a courtroom arrangement is challenged as inherently prejudicial, therefore, the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether `an unacceptable risk is presented of impermissible factors coming into play.'").

4. AEDPA Review

In the course of petitioner's state habeas corpus proceeding, the Texas Court of Criminal Appeals ruled in a manner wholly consistent with applicable Supreme Court precedent that neither the presence of two (2) uniformed officers seated near the petitioner throughout trial nor the leg restraints worn by the petitioner beneath his clothing and precluded from jury view by stacks of books and other visual barriers violated the petitioner's constitutional right to a fair trial. Petitioner presented the state habeas court with absolutely no factual allegations, much less any competent evidence, establishing that any physical restraints on the petitioner were visible during trial. Nor did petitioner allege any specific facts showing that the presence of the two security officers was prejudicial to petitioner, inherently or otherwise.¹⁸²

182 Given the Supreme Court's holding in Holbrook , which rejected complaints about the presence of four security guards in the courtroom, petitioner's complaint about the presence of a mere two security officers seated near him throughout trial is legally frivolous: "reason, principle, and common human experience counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial." Holbrook v. Flynn , 475 U.S. at 569, 106 S.Ct. at 1346.

Moreover, given the petitioner's amply demonstrated propensity for making threats against law enforcement officers and the fact the petitioner was on parole from a conviction for attempted capital murder at the time he was alleged to have committed five particularly brutal murders, the state trial court's actions in ordering that the petitioner wear leg restraints under his clothing and that all such restraints be hidden from the jury's view were clearly reasonable responses to the threats that had been made against the petitioner, as well as the risks of a possible violent outburst by the defendant. In fact, the state trial judge's ruling appears to be a wholly reasonable attempt to balance legitimate concern over a potential outburst by or toward the petitioner with a genuine concern for ensuring the petitioner a fair trial. Significantly, the petitioner offered no rebuttal to the evidence showing that he had threatened law enforcement officers and that members of the victim's families had made threats against him. The Supreme Court has never held that a trial judge must wait until a defendant engages in obstreperous or violent conduct in the courtroom or becomes the victim of such conduct by others before resorting to concealed physical restraints. On the contrary, the Supreme Court's precedent focus on the potentially prejudicial impact of practices that are "conspicuous, or at least noticeable."¹⁸³ Finally, petitioner alleged no specific facts showing that he was actually prejudiced by the concealed leg restraints he wore under his clothing while he sat behind a visual obstruction at the defense table.¹⁸⁴

183 See Holbrook v. Flynn , 475 U.S. at 568, 106 S.Ct. at 1345.

184 See Holbrook v. Flynn , 475 U.S. at 567, 106 S.Ct. at 1345, (recognizing that not every practice tending to single out the accused from everyone else in the courtroom must be struck down).

Under such circumstances, the state habeas court's conclusion that petitioner's complaints about his leg restraints failed to establish a violation of the petitioner's constitutional right to a fair trial 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 an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

5. Conclusions

The state trial judge concluded in the course of petitioner's state habeas corpus proceeding that petitioner's complaints regarding his leg restraints were unsupported by competent evidence, procedurally defaulted,¹⁸⁵ and without merit because the petitioner had failed to allege any facts showing he was prejudiced thereby.¹⁸⁶ The Texas Court of Criminal Appeals adopted these conclusions of law.¹⁸⁷ In so concluding, those state courts reasonably applied the correct legal standard, i.e., Holbrook's requirement of a showing of prejudice, in a completely reasonable manner. Petitioner's ninth ground for relief herein, i.e., his complaint regarding his leg restraints, does not warrant federal habeas corpus relief.

185 Because respondent did not raise procedural default or Teague foreclosure as defenses to this claim, this Court has not addressed either of those potentially meritorious defenses.

186 See Transcript, State Habeas Proceeding, at pp. 103-04.

187 See Ex parte Dennis Wayne Bagwell , No. 42,341-01 (Tex. Grim. App. September 29, 1999).

E. Denial of Right to Testify

1. The Claim and Defense

In his tenth claim for relief herein, petitioner argues that his trial counsel denied petitioner's constitutional right to testify at trial by coercing petitioner into not taking the stand.¹⁸⁸ Respondent argues that petitioner procedurally defaulted on this claim by failing to exhaust available state remedies, i.e., failing to fairly present same to the state courts.¹⁸⁹ In reply, petitioner argues that he did "fairly present" the factual basis for this claim during his testimony at the evidentiary hearing held in his state habeas corpus proceeding.¹⁹⁰

188 See Petition, at pp. 16-18; and Memorandum, at pp. 47-51.

189 See Respondent's Answer and Motion for Summary Judgment, filed July 5, 2000, docket entry no. 17, at pp. 7-9.

190 See Petitioner's Reply to Respondent's Response, filed November 9, 2000, docket entry no. 18, at pp. 1-6. Curiously, petitioner requests that this Court hold an evidentiary hearing to resolve this same claim, which he contends was properly exhausted during the course of petitioner's state habeas corpus proceeding. Id., at p. 6.

2. Petitioner's Failure to Exhaust Available State Court Remedies in His State Habeas Proceeding

a. Petitioner's State Habeas Corpus Proceeding

This Court has independently examined all the pleadings and other documents relating to petitioner's state habeas corpus proceeding and concludes that petitioner failed to exhaust available state court remedies with regard to his complaint that he was denied his right to testify at trial. More specifically, nowhere in his original state habeas corpus application did the petitioner indicate in any way, shape, or form, that he was complaining his trial counsel (or anyone else) had deprived petitioner of his right to testify at his capital murder trial.¹⁹¹ The petitioner did testify during the evidentiary hearing held May 14, 1999 in petitioner's state habeas corpus proceeding and complained, among other things, that his trial counsel repeatedly counseled him against testifying at the guilt-innocence phase of trial because said counsel did not want petitioner's criminal record being brought before the jury prior to the punishment phase of trial.¹⁹² However, at no time either before, during, or after the evidentiary hearing held in petitioner's state habeas corpus proceeding did the petitioner request permission, or attempt, to amend his state habeas application to include a claim that he had been denied his right to testify at trial. Moreover, and most significantly, in his proposed findings of fact and conclusions of law filed June 25, 1999, petitioner failed to include any proposed factual findings or proposed conclusions of law addressing a claim that the petitioner had been denied his right to testify at trial.¹⁹³ Likewise, none of the petitioner's proposed findings or conclusions relating to his ineffective assistance claims referred or related to any claim that the petitioner had been denied his right to testify. Thus, petitioner never gave the state habeas court any notice that he was urging a claim (either as an independent claim for relief or as a part of his ineffective assistance claims) that he had been denied his constitutional right to testify at his capital murder trial.

191 See Transcript, State Habeas Proceeding, at pp. 2-30. While petitioner did include a pair of ineffective assistance claims in his state habeas corpus application, which correspond to petitioner's seventh and eighth grounds for federal habeas corpus relief contained in his Petition filed in this Court, nothing in petitioner's state habeas corpus application gave the state courts any clue that the petitioner contended he had been denied his right to testify at trial.

192 See S.F. State Habeas Hearing, testimony of Dennis Bagwell, at pp. 103-04. Significantly, the petitioner did not testify that his trial counsel ever did or said anything to "coerce" petitioner into not testifying at the guilt-innocence phase of trial other than to advise petitioner regarding their tactical reasons for wishing him not to do so. Likewise, petitioner did not testify that his trial counsel ever did or said anything to "coerce" petitioner into not testifying at the punishment phase of his trial.

193 See Transcript, State Habeas Proceeding, at pp. 82-90.

b. Failure to Exhaust State Remedies

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.¹⁹⁴

194 See Carey v. Saffold , 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker , 533 U.S. 167, 179, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001); O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999); and Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).

Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims.¹⁹⁵ A fundamental prerequisite to federal habeas corpus relief under Title 28 U.S.C. § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief.¹⁹⁶ A federal court is free to raise the lack of exhaustion sua sponte.¹⁹⁷ In order to exhaust, a petitioner must "fairly present" all of his claims to the state courts.¹⁹⁸ 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.¹⁹⁹ The presentation of claims for the first time on discretionary review to the state's highest court does not constitute "fair presentation" for exhaustion purposes.²⁰⁰ Full exhaustion of all claims presented is required before federal habeas corpus relief is available.²⁰¹ The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition.²⁰² Likewise, to have "fairly presented" his federal claim, the petitioner must have reasonably alerted the state courts to the federal nature of his claim.²⁰³

195 See Mercadel v. Johnson , 179 F.3d 271, 276-77 (5th Cir. 1999); Alexander v. Johnson , 163 F.3d 906, 908 (5th Cir. 1998); and Jones v. Jones , 163 F.3d 285, 299 (5th Cir. 1998), cert. denied , 528 U.S. 895 (1999).
However, Title 28 U.S.C. § 2254(b)(2) empowers a federal habeas court to deny rely premised upon an exhausted claim. Daniel v. Cockrell , 283 F.3d 697, 701-02 (5th Cir. 2002), cert. denied , U.S. ___, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002).

196 See Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Sterling v. Scott , 57 F.3d 451, 453 (5th Cir. 1995), cert. denied. 516 U.S. 1050 (1996); and 28 U.S.C. § 2254(b)(1)(A).

197 See Cranberry v. Greer , 481 U.S. 129, 133-36, 107 S.Ct. 1671, 1674-76, 95 L.Ed.2d 119 (1987); Shute v. State of Texas. 117 F.3d 233, 237 (5th Cir. 1997); and Graham v. Johnson , 94 F.3d 958, 970 (5th Cir. 1996). A federal court is also free to disregard a State's waiver of the exhaustion requirement when the interests of comity require such. See Earhart v. Johnson , 132 F.3d 1062, 1065 (5th Cir. 1998), cert. denied. 525 U.S. 933 (1998).

198 See Duncan v. Henry. 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor , 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Jones v. Jones , 163 F.3d at 296; and Shute v. State of Texas , 117 F.3d at 237: "a habeas petitioner `must fairly apprize the highest court of his state of the federal rights which were allegedly violated,'" In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. See Richardson v. Procunier , 762 F.2d 429, 431-32 (5th Cir. 1985).

199 Moore v. Cain , 298 F.3d 361, 364 (5th Cir. 2002), cert. denied , ___ U.S. ___, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); and Mercadel v. Johnson , 179 F.3d at 275.

200 Castille v. Peoples , 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Satterwhite v. Lynaugh , 886 F.2d at 92.

201 See Rose v. Lundy , 455 U.S. 509, 518-22, 103 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); and Thomas v. Collins, 919 F.2d at 334.

202 See Anderson v. Harless , 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Wilder v. Cockrell , 274 F.3d at 259, ("where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement"); and Finley v. Johnson , 243 F.3d 215, 219 (5th Cir. 2001).

203 See Wilder v. Cockrell , 274 F.3d at 260: "A fleeting reference to the federal constitution, tacked onto the end of a lengthy, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights."

A Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state's highest court through collateral review provided by state habeas procedures.²⁰⁴ Where a federal habeas corpus petitioner urges an issue that he failed to raise on direct appeal, he must first use available state collateral procedures to satisfy the exhaustion requirement.²⁰⁵ However, if a Texas prisoner has obtained a ruling on the merits on a claim from an intermediate Texas appellate court and his petition for discretionary review has been denied by the Texas Court of Criminal Appeals, he need not file a subsequent state petition for habeas corpus relief urging the same claim in order to have exhausted state relief.²⁰⁶

204 Richardson v. Procunier , 762 F.2d at 432; see also Carter v. Estelle , 677 F.2d 427, 442 n. 10 (5th Cir. 1982), cert. denied. 460 U.S. 1056 (1983).

205 Lowe v. Scott , 48 F.3d 873, 875 (5th Cir. 1995), cert. denied , 515 U.S. 1123 (1995).

206 See Shute v. State of Texas , 117 F.3d at 237, (holding that when a state prisoner properly presented his federal claim to the highest state court on direct review, he need not ask for state collateral relief on the same ground and on the same evidence); Myers v. Collins , 919 F.2d 1074, 1076-77 (5th Cir. 1990).See also Sones v. Hargett , 61 F.3d 410, 415 (5th Cir. 1995), (holding that Section 2254 does not require repetitious applications to state courts); and Bennett v. Whitley , 41 F.3d 1581, 1582-83 (5th Cir. 1994), (holding that a Louisiana prisoner who properly exhausts state remedies on a claim of insufficient evidence in his direct appeal and whose subsequent attempt to re-litigate the same issue in a state habeas corpus proceeding is barred under state procedural default rules prohibiting re-examination of an issue disposed of via direct appeal is NOT procedurally barred from presenting his insufficient evidence claim in a subsequent federal habeas corpus action).

The issue of whether a federal habeas corpus claim has been "fairly presented" to the highest responsible state appellate court is separate and distinct from the issue of whether that claim is procedurally defaulted. In fact, a claim is exhausted when it is clear the habeas petitioner is now procedurally barred under state law from asserting same in the state courts.²⁰⁷

207 Gray v. Netherlan , 518 U.S. 152, 161, 116 S.Ct. 2074, 20___, 135 L.Ed.2d 457 (1996); Evans v. Cockrell , 285 F.3d 370, 375 (5th Cir. 2002); Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999).

In Texas, it had long been settled that a state prisoner has available habeas corpus relief through Article 11,07 of the Texas Code of Criminal Procedure as a means of collaterally attacking his conviction or any improprieties with regard to his parole revocation.²⁰⁸ Presenting new legal or factual theories that have not been presented to the state courts in a federal habeas petition warrants dismissal of the petition.²⁰⁹ Likewise, federal constitutional claims must have been presented to, and considered by, the state courts in a federal constitutional context; it is insufficient that all the facts underlying a federal claim were before the state court or that a somewhat similar state-law claim was made.²¹⁰ Finally, a habeas petitioner who presents material additional evidentiary support to the federal court that was not presented to the state courts has not exhausted state remedies with regard to that evidence.²¹¹ However, the presentation for the first time in a federal habeas corpus proceeding of affidavits and documentary evidence that do not differ from the factual allegations previously presented to the state courts does not raise exhaustion problems.²¹²

208 See Ex parte Hall , 696 S.W.2d 915, 917 (Tex.Crim.App. 1985); and Ex parte Henderson, 645 S.W.2d469, 472 (Tex.Crim.App. 1983) (en bane).

209 See Sones v. Hargett , 61 F.3d at 414-15, (holding that the exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirelynew factual claims in his petition in the federal court); Thomas v. Collins , 919 F.2d at 334-35, (holding that presenting new legal theories based upon facts presented in state proceedings does not satisfy the exhaustion requirement); Knox v. Butler , 884 F.2d 849, 852 n. 7 (5th Cir. 1989), cert. denied , 494 U.S. 1088 (1990): "on habeas review, federal courts must respect the autonomy of state courts by requiring that petitioners advance in state court all grounds for relief, as well as all factual allegations supporting those grounds. This rule extends to the evidence establishing the factual allegations themselves."; Dispensa v. Lynaugh , 847 F.2d 211, 217 (5th Cir. 1988), (holding that a claim is not exhausted where a federal habeas petitioner presents the same legal claim to a federal court that he presented in state court but supports that claim with new factual allegations that he did not make in the state courts); Joyner v. King , 786 F.2d 1317, 1320 (5th Cir. 1986), cert. denied sub nom. Joyner v. Phelps , 479 U.S. 1010 (1986); Rodriguez v. McKaskle , 724 F.2d 463, 466 (5th Cir. 1984), cert. denied , 469 U.S. 1039 (1984), (holding that the exhaustion requirement is not normally satisfied if a petitioner presents new legal theories or entirely new factual claims); Vela v. Estelle , 708 F.2d 954, 958 (5th Cir. 1983), cert. denied. 464 U.S. 1053 (1984); and Burns v. Estelle , 695 F.2d847, 849-50 (5th Cir. 1983), (holding that where a petitioner asserted a claim of ineffective assistance based upon certain facts in a state proceeding, a new claim of ineffective assistance based upon an entirely new set of facts had not been "exhausted").

210 See Duncan v. Henry , 513 U.S. at 365-66, 115 S.Ct. at 888; Wilder v. Cockrell , 274 F.3d at 259; Yohey v. Collins , 985 F.2d 222, 226 (5th Cir. 1993); and Minor v. Lucas. 697 F.2d 697, 698 (5th Cir. 1983).

211 See Graham v. Johnson , 94 F.3d at 968-69; and Knox v. Butler , 884 F.2d at 852 n. 7: "on habeas review, federal courts must respect the autonomy of state courts by requiring that petitioners advance in state court all grounds for relief, as well as all factual allegations supporting those grounds. This rule extends to the evidence establishing the factual allegations themselves."

212 See Dowthitt v. Johnson , 230 F.3d 733, 745-46 (5th Cir. 2000), cert. denied , 532 U.S. 915 (2001).

While the petitioner's testimony during his state habeas corpus proceeding did present the state habeas court with a cursory, almost cryptic, set of allegations that might conceivably be construed as asserting petitioner had been denied his right to testify, at no time did the petitioner ever advise the state habeas court that he was asserting such a claim. The arguments asserted by petitioner in support of his ninth claim for relief herein were never, in any form whatsoever, addressed to the state habeas court. The "fair presentation" requirement of the exhaustion doctrine is not satisfied in a situation in which the petitioner presents a factual basis for a federal claim but never advises the state courts that he wishes to pursue such a federal claim.²¹³ On the contrary, a petitioner must provide the state courts with a "fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim."²¹⁴ It is not enough that all the facts necessary to support the claim were before the state courts.²¹⁵

213 See Anderson v. Harless. 459 U.S. at 6, 103 S.Ct. at 277; and Picard v. Connor. 404 U.S. at 277, 92 S.Ct. at 513.

214 Anderson v. Harless , 459 U.S. at 6, 103 S.Ct. at 277; Henry v. Cockrell , 327 F.3d 429, ___ [2003 WL 1798524, *_] (5th Cir. 2003).

215 See Anderson v. Harless , 459 U.S. at 6, 103 S.Ct. at 277; Henry v. Cockrell. 327 F.3d at ___ [2003 WL 1798524, *_]; Wilder v. Cockrell , 274 F.3d at 259.

Petitioner failed to take any action before the state habeas court to alert that court that he wished to assert a claim that he had been denied his right to testify at trial. Petitioner's testimony at the evidentiary hearing held in his state habeas corpus proceeding included a variety of complaints wholly unrelated to any of his claims in that proceeding, including an assertion that he had been denied effective assistance on appeal. Even if petitioner's testimony could be liberally construed as putting the state habeas court on some sort of constructive notice that petitioner wished to assert a claim that he was denied his right to testify at trial, such notice was insufficient to satisfy the exhaustion doctrine. The exhaustion doctrine requires more than mere notice.²¹⁶ At no point during his state habeas corpus proceeding did petitioner alert the state courts that he wished to assert a claim that he had been denied the right to testify at his trial.²¹⁷ Moreover, it is well-settled in Supreme Court jurisprudence that exhaustion is not satisfied merely because the factual basis for a federal claim was presented to the state court.²¹⁸ Petitioner wholly failed to give the state habeas court a "fair opportunity" to address the merits of his claim that he was denied the right to testify at his trial.²¹⁹ Because petitioner failed to give the state habeas courts a "fair opportunity" to address the substance of his claim he was denied his right to testify, he failed to exhaust available state remedies on same.

216 Keeney v. Tamayo , 504 U.S. 1, 10, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992):

Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits.

217 As explained above, petitioner had multiple opportunities to do so, either through inclusion of such a claim in his original state habeas corpus application, the filing of an amended or supplemental state habeas application, or the inclusion of proposed findings of fact and conclusions of law in the proposed findings and conclusions petitioner filed in his state habeas corpus proceeding after his evidentiary hearing. Petitioner took advantage of none of these opportunities and, therefore, failed to give the state habeas court a "fair opportunity" to address such a claim.

218 See Anderson v. Harless , 459 U.S. at 6, 103 S.Ct. at 277; and Picard v. Connor , 404 U.S. at 277, 92 S.Ct. at 513.

219 In order to satisfy the exhaustion doctrine, the petitioner must have "fairly presented" to the state courts the "substance" of his federal habeas corpus claim. Anderson v. Harless , 459 U.S. at 6, 103 S.Ct. at 277; Picard v. Connor , 404 U.S. at 275 277-78, 92 S.Ct. at 513-14.

As pointed out by respondent, the consequences of petitioner's failure to exhaust available state habeas remedies with regard to this claim include procedural default on same.