Hinojosa v. Dretke

Full title: RICHARD HINOJOSA, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

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

Date published: Sep 30, 2004

Civil No. SA-01-CA-136-RF (W.D. Tex. Sep. 30, 2004)

Opinion

Civil No. SA-01-CA-136-RF.

September 30, 2004

MEMORANDUM OPINION AND ORDER DENYING RELIEF

W. ROYAL FURGESON, District Judge

Petitioner Richard Hinojosa filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 seeking review of his July, 1997 Bexar County conviction for capital murder and his sentence of death.

I. Synopsis

As grounds for relief, petitioner argues that (1) the prosecution suppressed exculpatory and impeachment evidence in violation of the rule in Brady, (2) the prosecution knowingly used perjured testimony to secure petitioner's conviction, (3) petitioner's trial counsel rendered ineffective assistance by (a) failing to adequately prepare for and rebut the prosecution's DNA evidence, (b) inadequately examining potential jurors during voir dire and accepting as jurors members of the venire who were likely biased against petitioner, (c) admitting during jury argument that petitioner was the source of the semen found inside the victim, (d) failing to present evidence rebutting the prosecution's shoe print evidence, (e) failing to request jury instructions at the guilt-innocence phase of trial regarding the lesser-included offense of murder, requiring unanimity regarding the method of capital murder, and the definition of "same criminal episode," (f) failing to present mitigating evidence at the punishment phase of trial regarding petitioner's difficult, abused, childhood, (g) failing to present failure DNA evidence, (h) failing to present favorable shoe print evidence, (i) failing to voir dire the prosecution's DNA expert, and (j) failing to object to the trial court's characterizations of the presumption of innocence, (4) petitioner was constructively denied effective assistance of trial counsel, (5) the trial court committed fundamental error in combining different factual theories of capital murder in the guilt-innocence phase jury charge, (6) various terms employed in the punishment phase jury instructions were unconstitutionally vague, and (7) Texas statutes forced petitioner's jurors to continue deliberating after they had reached a verdict favorable to petitioner.¹

1 See Petitioner's Petition, filed July 13, 2001, docket entry no. 8 (henceforth "Petition").

For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief from this Court nor a Certificate of Appealability.

II. Statement of the Case

A. Factual Background

1. The Crime and its Aftermath

On the morning of May 10, 1994, Terry Wright was reported missing. Family members and police officers who arrived at her residence found a flower pot had been thrown through a window and her bedroom in a shambles.² Muddy footprints led from the broken window into Ms. Wright's bedroom, where a torn nightgown was discovered.³ Both Ms. Wright and her vehicle were missing.⁴ The telephone line to Ms. Wright's residence had been cut.⁵ A footprint was observed in the mud in the atrium outside the house, directly adjacent to the broken window.⁶ Later that same date, Ms. Wright's vehicle was discovered in an inoperable condition in a relatively isolated location a short distance from her residence.⁷ That evening, law enforcement officers aided by a K-9 unit located Ms. Wright's nude body lying in a field near where her vehicle had been discovered.⁸ A shoe print found near where Ms. Wright's body was located matched the shoe print found just outside the broken window of Ms. Wright's home.⁹ The shoe prints matched the out-sole of a brand and model of tennis shoes purchased by petitioner's wife several months before Terry Wright's murder.¹⁰

2 See Statement of Facts from petitioner's trial (henceforth "S.F. Trial"), Volume 16 of 24, testimony of Jeffrey D. Wright, at pp. 37-39, 57-58, 66, 68; testimony of Robert Johnson, at pp. 83, 85-87, 105-06; testimony of Robert Martinez, at pp. 166, 170, 175-77.

3 See S.F. Trial, Volume 16 of 24, testimony of Jeffrey D. Wright, at pp. 38, 41, 43, 51, 57-59, 66, 68, 70; testimony of Robert Johnson, at pp. 85, 91, 105-06, 114-15; and Testimony of Robert Martinez, at pp. 162-65.

4 See S.F. Trial, Volume 16 of 24, testimony of Jeffrey D. Wright, at pp. 38-39 46-47; testimony of Robert Johnson, at pp. 86 88-89; Volume 17 of 24, testimony of T.J. Jagge, at pp. 14-15 35-36.

5 See S.F. Trial, Volume 16 of 24, testimony of Robert Johnson, at pp. 101 125; testimony of Robert Martinez, at pp. 169-70; testimony of Daniel Terrill, at pp. 215 217.
A photograph of the cut telephone line was admitted into evidence at petitioner's trial as State Exhibit No. 19 and appears at S.F. Trial, Volume 24 of 24, at pp. 62-63.

6 See S.F. Trial, Volume 16 of 24, testimony of Jeffrey D. Wright, at pp. 43 51; testimony of Robert Johnson, at pp. 91 115.
A photograph of the footprint discovered just outside the broken window of Ms. Wright's residence was admitted into evidence at petitioner's trial as State Exhibit No. 18 and appears among the state court records from petitioner's trial in S.F. Trial, Volume 24 of 24, at pp. 60-61.

7 See S.F. Trial, Volume 16 of 24, testimony of Jeffrey D. Wright, at pp. 39 46-47; testimony of Robert Johnson, at pp. 117 125; testimony of Matthew Marshall, at pp. 130-32; testimony of Jimmy Walden, at pp. 141-44; testimony of Robert Martinez, at pp. 179-82.

8 See S.F. Trial, Volume 16 of 24, testimony of Robert Martinez, at pp. 182-84; Volume 17 of 24, testimony of Charles Garcia, at pp. 192-94.

9 A San Antonio Police Sergeant testified regarding the discovery of the foot print at the crime scene. See S.F. Trial, Volume 17, testimony of Jeffrey Humphrey, at pp. 73, 85, 95, 142, 153. A different San Antonio Police Officer testified that me made plaster casts of the foot prints located at both Mr. Wright's residence and the location where her body was discovered. See S.F. Trial, Volume 17 of 24, testimony of Crisoforo Vieyra, at pp. 199, 203, 205-06, 208-09; and Volume 18 of 24, testimony of Crisoforo Vieyra, at pp. 6-7 11. A tool mark expert testified that the sole patterns found on the shoe prints found at Terry Wright's residence and near where her body was discovered were a match. See S.F. Trial, Volume 18 of 24, testimony of Richard Stengel, at pp. 108 112-14.
A photograph of the shoe print found at the location near Terry wright's body was admitted into evidence at petitioner's trial as State Exhibit No. 37 and appears at S.F. Trial, Volume 24 of 24, at pp. 98-99.

10 Petitioner's ex-wife testified at petitioner's trial that (1) in he months prior to Terry wright's murder, she purchased herself and petitioner matching pairs of FILA tennis shoes that were identical except for the fact that petitioner's pair were slightly larger than her pair, (2) after Terry Wright's murder, she was unable to locate petitioner's tennis shoes, and (3) she furnished law enforcement investigators with her pair of tennis shoes, which were identical, except for size, to the pair she had purchased petitioner prior to the murder. See S.F. Trial, Volume 18 of 24, testimony of Rebecca Alfaro, at pp. 71-74, 77-78, 80, 82, 92, 101. A representative of FILA testified that (1) all models of the men's and women's versions of the FILA "slant shot" tennis shoes in question bore the same sole pattern, (2) the only difference between the men';s and women's models of that tennis shoe were the size of the shoe, with women's models having a much narrower out-sole, especially in the ball of the foot, and (3) in his opinion, the shoe prints found at Terry Wright's home and at the location where her body was discovered were made by men's shoes. See S.F. Trial, Volume 17 of 24, testimony of John A. Kivlehan, at pp. 158-65, 169, 171.

An autopsy revealed both that Terry Wright had been stabbed eleven times in her chest and back and the presence of sperm in her vagina.¹¹ Subsequent testing of the DNA recovered from the sperm found inside Terry Wright identified petitioner as the probable source of that sperm.¹²

11 See S.F. Trial, Volume 18, testimony of Vincent DiMaio, at pp. 187-208 211-13. The medical examiner testified that (1) five of the stab wounds penetrated the heart and were all potentially fatal, (2) another stab wound penetrated a lung and was also potentially fatal, (3) there did not appear to be any defensive wounds on Ms. Wright's body, and (4) the pattern of the wounds suggested that her heart had been the target of Ms. Wright's attacker. Id. , at pp. 194-96, 203, 211-13, 222.

12 More specifically, a Bexar County serologist testified that initial DNA testing, using the Restriction Fragment Length Polymorphism ("RFLP") method, proved inconclusive so samples were sent off to a private laboratory for more sophisticated DNA testing. See S.F. Trial, Volume 19 of 24, testimony of Lonnie Ginsberg. The representative of the private DNA-testing laboratory which conducted more sensitive Polymerase Chain Reaction ("PCR") analysis of the sperm recovered from Terry Wright's vagina testified that (1) petitioner's DNA was a match for the sperm-DNA recovered from Terry Wright, (2) statistically, the odds of petitioner's DNA randomly matching all the DNA characteristics of the DNA revealed by the PCR testing of the sperm fraction of Terry Wright's vaginal swabs were one in nineteen million, nine hundred thousand, (3) there was no indication in their test results that the sperm found inside Terry Wright had come from multiple sources, and (4) there was no indication of contamination in their test results. See S.F. Trial, Volume 19, testimony of Meghan Clement, at pp. 58-77, 86, 97-98.

2. The Indictment

On August 15, 1995, a Bexar County grand jury indicted petitioner in cause no. 95-CR-4325 on a single Count of capital murder.¹³

13 See Trial Transcript, Volume I of II, at pp. 6-7.
The indictment charged, in four separate paragraphs, that, on or about May 10, 1994, petitioner intentionally and knowingly caused the death of Terry Wright by stabbing her with an object unknown to the grand jury while in the course of committing and attempting to commit the predicate felony offenses of burglary, kidnaping, robbery, and aggravated sexual assault upon Mr. Wright, respectively.
The facts and evidence elicited during petitioner's capital murder trial are discussed at length in the Texas Court of Criminal Appeals' published opinion affirming petitioner's conviction and sentence on direct appeal. See Hinojosa v. State, 4 S.W.3d 240, 242-45 (Tex.Crim.App. 1999).

3. The Trial

The guilt-innocence phase of petitioner's capital murder trial commenced on July 14, 1997. On July 21, 1997, the jury returned its verdict, finding petitioner guilty of capital murder.¹⁴

14 See Statement of Facts from petitioner's trial (henceforth "S.F. Trial"), Volume 21 of 24, at pp. 99-102; and Trial Transcript, Volume II of II, at p. 210.

The punishment phase of petitioner's capital murder trial began and ended on July 25, 1997, at the conclusion of which the state trial court sentenced petitioner to death by lethal injection.¹⁵

15 See S.F. Trial, Volumes 23 of 24, at pp. 53-56; Trial Transcript, Volume II of II, at pp. 224-25.
Testimony and documentary evidence, including court records, admitted during the punishment phase of petitioner's capital murder trial established that petitioner had previously been convicted of multiple counts of assault and robbery, as well as for voluntary manslaughter arising from an incident in which the petitioner shot his victim in the chest and then ran up and shot the victim a second time in the back of the head. See S.F. Trial, Volume 22 of 24, testimony of Richard Contreras, at pp. 6-7 9; testimony of Beatrice Gonzales, at pp. 12, 15, 17, 19; testimony of Vincent DiMaio, at pp. 23-27; and State Exhibit Nos. 99-103, found at S.F. Trial, Volume 24 of 24, at pp. 194-306.
In response to two special issues, petitioner's jury found beyond a reasonable doubt that (1) there was a reasonable probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all the evidence, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment. See Trial Transcript, Volume II of II, at pp. 224-25.

4. Direct Appeal

Petitioner appealed. In an opinion issued October 27, 199, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence.¹⁶ Petitioner did not seek certiorari review of his conviction or sentence on direct appeal from the United States Supreme Court.

16 See Hinojosa v. State, 4 S.W.3d 240 (Tex.Crim.App. 1999).

5. State Habeas Corpus Proceeding

On July 20, 1999, petitioner filed an application for state habeas corpus relief, asserting all of the arguments outlined in Section I above.¹⁷ The state trial court held an evidentiary hearing on petitioner's state habeas corpus claims on March 7-8, 2000. In an Order issued August 23, 2000, the state trial court issued its findings of fact, conclusions of law, and recommendation that petitioner's request for state habeas corpus relief be denied.¹⁸ On January 31, 2001, the Texas Court of Criminal Appeals issued an unpublished Order denying petitioner state habeas corpus relief based on the trial court's findings.¹⁹

17 See Petitioner's State Habeas Corpus Application, found among the state court records relating to petitioner's state habeas corpus proceeding (henceforth "State Habeas Transcript"), at pp. 1-87.

18 See State Habeas Transcript, at pp. 165-94. The details of the state trial court's findings of fact and conclusions of law made in the course of petitioner's state habeas corpus proceeding will be discussed hereinafter in connection with each of petitioner's claims for relief herein, respectively.

19 See Ex parte Richard Hinojosa, App. No. 46, 974-01 (Tex.Crim.App. January 31, 2001).

B. Procedural History

On February 15, 2001, petitioner filed his motion requesting appointment of counsel in this cause.²⁰ In an Order issued February 27, 2001, this Court appointed counsel to represent petitioner herein.²¹

20 See docket entry no. 1.

21 See docket entry no. 2.

On July 16, 2001, petitioner filed his federal habeas corpus petition, setting forth as grounds for relief the arguments summarized above in Section I.²² On November 21, 2001, respondent filed his answer and motion for summary judgment.²³ On January 15, 2002, petitioner filed a response to respondent's motion for summary judgment and a motion requesting "fact development."²⁴

22 See docket entry no. 8.

23 See docket entry no. 10.

24 See docket entry no. 13.

III. Analysis and Authorities

A. AEDPA Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA.²⁵

25 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.²⁶

26 See Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003); Price v. Vincent, 538 U.S. 634, 638-40, 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. Section 2254(d)(1) have independent meanings.²⁷ 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.²⁸ 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.²⁹ A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable."³⁰ 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.³¹

27 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.

28 See Mitchell v. Esparza, 540 U.S. 12, ___, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003): "A state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"; Price v. Vincent, 538 U.S. at ___, 123 S.Ct. at 1853; Bell v. Cone, 535 U.S. at 694, 122 S.Ct. at 1850; Penry v. Johnson, 532 U.S. at 1918; and Williams v. Taylor, 529 U.S. at 404-06, 120 S.Ct. at 1518-19.
The Supreme Court has held that a state court's failure to cite governing Supreme Court authority does not, per se establish that the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents; `so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at ___, 124 S.Ct. at 10; Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002).

29 See Wiggins v. Smith, 539 U.S. at ___, 123 S.Ct. at 2534-35; Woodford v. Visciotti, 537 U.S. 19, 24-25, 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 v. 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 an existing legal principle into a new area. See Williams v. Taylor, 529 U.S. at 408-09, 120 S.Ct. at 1521.

30 See Wiggins v. Smith, 539 U.S. at ___, 123 S.Ct. at 2535; Woodford v. Visciotti, 537 U.S. at 25, 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.

31 See Wiggins v. Smith, 539 U.S. at ___, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. at 641, 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 25, 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.³²

32 See Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002), cert. denied, 537 U.S. 1054 (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).

B. Brady Claims

1. The Arguments

In his first claim for federal habeas corpus relief, petitioner argues that the prosecution suppressed exculpatory or impeachment evidence in the form of (1) a pretrial statement made to law enforcement investigators by prosecution witness Rebecca Alfaro to the effect that she could not say with certainty whether the tread pattern on the bottom of her FILA tennis shoes were the same as the tread pattern on the bottom of the FILA tennis shoes she had purchased for petitioner and (2) records from the private DNA testing lab that suggested defects in the procedures employed to test petitioner's DNA and the vaginal swabs obtained from Terry Wright.³³

33 See Petition, at pp. 11-36.

2. Clearly Established Federal Law

Few constitutional principles are more firmly established by Supreme Court precedent than the rule that "`the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'"³⁴ The Supreme Court has also held that the prosecution's duty to disclose evidence material to either guilt or punishment, i.e., the rule announced more than forty years ago in Brady v. Maryland, applies even when there has been no request by the accused.³⁵ The duty also applies to impeachment evidence.³⁶ Moreover, the rule encompasses evidence known only to police investigators and not to the prosecutor.³⁷

34 Banks v. Dretke, ___ U.S. ___, ___, 124 S.Ct. 1256, 1272, 157 L.Ed.2d 1166 (2004) ( quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963)); Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999) ( quoting Brady ); Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) ( quoting Brady ).

35 See Strickler v. Greene, 527 U.S. at 280, 119 S.Ct. at 1948; Kyles v. Whitley, 514 U.S. at 433, 115 S.Ct. at 1565; United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).

36 See Banks v. Dretke, ___ U.S. at ___, 124 S.Ct. 1272; Strickler v. Greene, 527 U.S. at 280, 119 S.Ct. at 1948; Kyles v. Whitley, 514 U.S. at 433-34, 115 S.Ct. at 1565-66; United States v. Bagley, 473 U.S. 667, 676 685, 105 S.Ct. 3375, 3380 3385, 87 L.Ed.2d 481 (1985).

37 Strickler v. Greene, 527 U.S. at 280-81, 119 S.Ct. at 1948; Kyles v. Whitley, 514 U.S. at 437-38, 115 S.Ct. at 1567-68.

In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Strickler v. Greene, 527 U.S. at 281, 119 S.Ct. at 1948, quoting Kyles v. Whitley, 514 U.S. at 437, 115 S.Ct. at 1567.

Under clearly established Supreme Court precedent, there are three elements to a Brady claim: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be "material," i.e., prejudice must have ensued from its non-disclosure.³⁸ Evidence is "material" under Brady where there exists a "reasonable probability" that had the evidence been disclosed the result at trial would have been different.³⁹ The Supreme Court has emphasized four aspects of the Brady materiality inquiry: first, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted in the defendant's acquittal;⁴⁰ second, the materiality standard is not a sufficiency of the evidence test;⁴¹ third, once materiality is established, harmless error analysis has no application;⁴² and fourth, materiality must be assessed collectively, not item by item.⁴³

38 Banks v. Dretke, ___ U.S. at ___, 124 S.Ct. at 1272; Strickler v. Greene, 527 U.S. at 281-82, 119 S.Ct. at 1948.

39 See Banks v. Dretke, ___ U.S. at ___, 124 S.Ct. at 1276; Strickler v. Greene, 527 U.S. at 289-90, 119 S.Ct. at 1952; Wood v. Bartholomew, 516 U.S. at 1, 5, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995); Kyles v. Whitley, 514 U.S. at 433, 115 S.Ct. at 1565, United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

40 See Strickler v. Greene, 527 U.S. at 289-90, 119 S.Ct. at 1952; Kyles v. Whitley, 514 U.S. at 434, 115 S.Ct. at 1566; United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (expressly adopting the "prejudice" prong of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), analysis of ineffective assistance claims as the appropriate standard for determining "materiality" under Brady).

As we made clear in Kyles, the materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."

Strickler v. Greene, 527 U.S. at 290, 119 S.Ct. at 1952, quoting Kyles v. Whitley, 514 U.S. at 434-35, 115 S.Ct. at 1565. which in turn quoted United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

41 See Kyles v. Whitley, 514 U.S. at 434-35, 115 S.Ct. at 1566. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.
Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. at 1566.

42 See Kyles v. Whitley, 514 U.S. at 435-36, 115 S.Ct. at 1566-67:

Assuming arguendo that a harmless-error enquiry were to apply, a Bagley error could never be treated as harmless since "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," necessarily entails the conclusion that the suppression must have had "substantial and injurious effect or influence in determining the jury's verdict."

Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. at 1566.

43 Kyles v. Whitley, 514 U.S. at 436-37, 115 S.Ct. at 1567.

3. AEDPA Review

The Texas Court of Criminal Appeals rejected these same claims on the merits in the course of petitioner's state habeas corpus proceeding.

a. Rebecca Alfaro's Testimony

The state habeas trial court specifically found that (1) on May 31, 1997, Rebecca Alfaro told defense investigators John Kemmy and Thomas Caldwell that her FILA tennis shoes and the petitioner's FILA tennis shoes were the same but that she could not recall whether the bottoms of the shoes had the same tread pattern and (2) on June 2, 1997, Alfaro told law enforcement investigators that her FILA tennis shoes and the petitioner's FILA tennis shoes looked the same on top but she could not say the tread patterns on the bottom of the soles were the same.⁴⁴ Both of these factual findings were fully supported by the evidence then before petitioner's state habeas court.⁴⁵

44 See State Habeas Transcript, at p. 108.

45 At petitioner's trial, Rebecca Alfaro testified that she told detectives prior to trial that her FILA tennis shoes were identical to petitioner's FILA tennis shoes. See S.F. Trial, Volume 18 of 24, testimony of Rebecca Alfaro, at pp. 80 82. Under cross-examination by petitioner's trial counsel, Alfaro testified that, when she was approached by defense investigators on May 31, 1997, she informed them that she did not know whether the bottoms of her tennis shoes and petitioner's tennis shoes were identical. Id. , at pp. 93-95. On re-cross examination, Alfaro testified that police detectives had asked her about the tennis shoes and that she had told them her tennis shoes and petitioner's tennis shoes were identical but that she had meant the shoes as a whole and not, specifically, the sole patterns. Id. , at p. 100.
Former lead prosecutor James Kopp testified during the hearing in petitioner's state habeas corpus proceeding that, when he interviewed Alfaro on June 2, 1997, she informed him that her tennis shoes and petitioner's were identical but she could not testify as to whether the bottoms of the hoes were identical.See S.F. State Habeas Hearing, testimony of James Kopp, at p. 20

The state habeas trial court also specifically found that the prosecution made petitioner's trial counsel aware of the limitations of Alfaro's identification testimony at the time the prosecution informed defense counsel that it intended to call a FILA representative to testify regarding the tread patterns on the bottom of Alfaro and petitioner's FILA tennis shoes.⁴⁶ This factual finding was also fully supported by the record before the state habeas court.⁴⁷

46 "[A]round a week or two before jury selection in applicant's case, the prosecutor informed applicant's counsel that Rebecca Alfaro had told him, on June 2, 1997, that she was not sure that the pattern on the sole of applicant's Fila [sic] tennis shoes was the same as the pattern on her own Fila [sic] tennis shoes." State Habeas Transcript, at pp, 169-70.

47 More specifically, prosecutor James Kopp testified during petitioner's state habeas corpus hearing that he was very confident he had informed petitioner's trial counsel about a week or two prior to jury selection that Alfaro could not identify the tread patterns on the bottom of the FILA tennis shoes and, for that reason, he was calling a FILA company representative to identify those tread patterns. See S.F. State Habeas Hearing, testimony of James Kopp, at pp. 25-26.
Petitioner's former trial counsel, attorney Ed Camara, testified during petitioner's state habeas corpus hearing that he could not recall the prosecution telling him specifically that Rebecca Alfaro could not identify the tread patterns on the bottom of the FILA tennis shoes and, in fact, his notes indicated the prosecution had told him that Alfaro would testify the tennis shoe soles matched. See S.F. State Habeas Hearing, testimony of Ed Camara, at pp. 169-70.
Thus, the state habeas court had conflicting testimony before it which it resolved in its factual findings in favor of Kopp's version of the relevant events. However, the state habeas court's determination that Kopp's testimony was the more credible may not have been based solely upon its assessments of the respective demeanor of the witnesses. Attorney Camara never denied that the prosecution informed him prior to trial that it was calling a FILA shoe company representative to testify regarding the tread patterns on the soles of the FILA tennis shoes in question. In fact, Camara admitted that was aware prior to trial that the prosecution intended to call a FILA company representative to testify regarding the sole tread patterns and was critical of his own performance for not interviewing Kivlehan prior to trial.See S.F. State Habeas Hearing, testimony of Ed Camara, Jr., at pp. 164-66.

The state habeas court specifically found that, despite her earlier statements to both law enforcement and defense investigators, at petitioner's trial, Alfaro testified that she knew for a fact the tread patterns on the bottom of the soles of both her FIL tennis shoes and petitioner's FILA tennis shoes were identical.⁴⁸ While Alfaro's trial testimony on this subject is hardly a font of clarity, the state habeas court's factual finding is a reasonable determination of the facts based on the record from petitioner's trial.⁴⁹

48 See State Habeas Transcript, at pp. 108-09.

49 On cross-examination at petitioner's trial, Alfaro (1) initially claimed that she had never told petitioner's investigators that she was unable to identify the bottoms of the tennis shoes, (2) she then admitted she had, in fact, told defense investigators that she could not testify regarding the tread patterns on the tennis shoes, and (3) she nonetheless insisted that she was now certain the tread pattern on the bottom of petitioner's tennis shoes had been identical to the tread pattern on the bottom of her own pair of tennis shoes:

Q Didn't you tell Mr. Kemmy and Mr. Caldwell that the shoes were similar, but the bottoms were not the same?

A No.

Q Let me finish, please. That you had never looked at the bottoms of the shoes so you didn't know what they looked like as far as if it was the same, if the two shoes were the same or not?

A I didn't tell them that.
Q You didn't tell them that?

A I didn't tell them that I didn't know that. That word exactly. I told them they were the same shoe.

Q Yes. You may have said that. But they asked you specifically about the bottoms. Didn't you tell them —

A I told them I don't know.

Q Excuse me, ma'am. Would you let me finish my question?

A Go ahead. Sorry.

Q Didn't they ask you about the bottom of the shoes, and you told them that you didn't remember if the bottoms looked the same or not? Did you say that?

A I said that.
Q But now you're saying —
A But now — go ahead. Go ahead.

Q But now you're saying that the bottoms of the shoes were the same?

A Yes. For the simply reason is, looking at the pictures from then until recently, I know that they're the same. Because at that time I couldn't remember. I mean, they caught me off guard. They wanted an answer from two or three years ago that I'm trying to put in my past. It's just something —

Q Now, let me ask you another question. Now, it was my understanding that when you testified earlier, you said that the policemen had shown you those pictures before.

A A long time ago, like two years ago.

Q So you knew what the bottoms of the shoe looked like sometime —

A Vaguely.

Q — in the past? Okay? If you had seen the picture before, when was it that the picture of Richard's shoes came into your mind?

A Just like going down the weeks and thinking about it now that it was presented to me day, May 31st.

Q In fact, this new revelation of yours has just come to pass, hasn't it, since you've been talking to the district attorney?

A What was that?

Q You've just now come to that conclusion that the shoes were the same?

A Yes.

Q And let me ask you this: Are you absolutely sure that the bottoms of your shoes and Richard's shoes were exactly the same?

A No. I can't say that they're exactly to every little sole that they're the same.

Q Are you telling this jury right now that you're sure that the bottom of his shoes have the same design as that?

A The same design.
Q You're sure about that?
A Yes.

Q As sure as you are about everything you're saying here today?

A As sure as I can remember.
S.F. Trial, Volume 18 of 24, testimony of Rebecca Alfaro, at pp. 95-97.

Based on the foregoing factual findings, the state habeas court concluded that (1) the prosecution did not suppress Alfaro's statement to prosecutors on June 2, 1997 and (2) in light of the undisputed testimony of FILA company representative John Kivlehan regarding the type of sole tread pattern on FILA slant shot tennis shoes and Alfaro's consistent testimony that her tennis shoes and petitioner's were the same model of FILA tennis shoe, any impeachment value that might have been derived from Alfaro's statement to the prosecution on June 2, 1997 did not satisfy the materiality prong of Brady. ⁵⁰

50 See State Habeas Transcript, at pp. 171-73.

For a number of reasons, in so concluding, the state habeas court acted in a manner wholly consistent with clearly established federal law.

First, the state habeas court's conclusion that the prosecution did not suppress the contents of Alfaro's June 2, 1997 statement was an eminently reasonable conclusion based upon that same court's equally reasonable factual findings that the prosecution informed petitioner's trial counsel of the limitations of Alfaro's personal knowledge regarding the tread patterns at the time the prosecution informed petitioner's trial counsel a FILA shoe company representative would testify regarding the tread patterns.

Second, through cross-examination, petitioner's trial counsel made the jury aware that (1) Alfaro had previously informed defense investigators that she had no recollection of the tread patterns on the bottom of her and petitioner's tennis shoes and (2) her conclusion that the tread patterns on her and the petitioner's tennis shoes were the same was of very recent vintage. Moreover, petitioner's trial counsel elicited contradictory testimony from Alfaro regarding what she knew about the tread patterns and what she had told others. In short, petitioner's trial counsel effectively impeached Alfaro's sudden revelation that she could testify with certainty regarding the tread patterns on the bottom soles of her and petitioner's FILA tennis shoes. Any additional impeachment value that might have been gained from petitioner's trial counsel eliciting further admissions from Alfaro that she had previously told prosecutors the same thing she had told defense investigators, i.e., that she did not remember the sole patterns n her and petitioner's tennis shoes, would have been of such minimal benefit to petitioner as to be immaterial within the meaning of Brady.

Finally, and most telling of all, an objective review of the testimony from petitioner's trial reveals that it was the testimony of FILA shoe company representative John Kivlehan,not Alfaro's testimony, which established that the tread patterns on the bottom of the soles of all FILA slant shot tennis shoes, both men's and women's, were identical.⁵¹ Petitioner offered the state trial court and state habeas court no evidence suggesting there was anything erroneous about this aspect of Kivlehan's trial testimony. Likewise, petitioner has offered no court, state or federal, any evidence showing that Rebecca Alfaro's trial testimony establishing that she purchased petitioner the exact same model FILA tennis that she purchased for herself was inaccurate. Under such circumstances, the state habeas court correctly concluded that Alfaro's June 2, 1997 statement to prosecutors did not satisfy the materiality prong of Brady.

51 John Kivlehan testified at petitioner's trial that (1) all models of the men's and women's versions of the FILA "slant shot" tennis shoes in question bore the same sole pattern, (2) the only difference between the men's and women's versions of that model FILA tennis shoe were the size of the shoe, with women's models having a much narrower out-sole, especially in the ball of the foot, and (3) in his opinion, the shoe prints found at Terry Wright's home and at the location where her corpse was discovered were made by a man's shoe. See S.F. Trial, Volume 17 of 24, testimony of John A. Kivlehan, at pp. 158-65, 169, 171.

For the foregoing reasons, the Texas Court of Criminal Appeals' rejection on the merits of petitioner's complaints about the alleged suppression of Rebecca Alfaro's statement to prosecutors on June 2, 1997 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 trial and habeas corpus proceedings.

b. DNA Lab Records

Petitioner also complains cryptically that the prosecution failed to present petitioner's trial counsel with records from the private DNA laboratory that conducted PCR testing on the seminal material obtained from Terry Wright's vaginal swabs and compared those test results with DNA samples from petitioner.⁵²

52 See Petition, at pp. 26-33 36.

The state habeas court specifically found that petitioner's trial counsel subpoenaed those same records from the company in question but, for unknown reasons, petitioner's trial counsel failed to move to compel production of the subpoenaed documents.⁵³ This factual finding is fully supported by the record before petitioner's state habeas court.⁵⁴

53 See State Habeas Transcript, at p. 173 n. 1.

54 Petitioner's trial counsel testified during petitioner's state habeas corpus hearing that (1) he obtained the final test results from the PCR testing done in petitioner's case from the prosecution, (2) he subpoenaed all other documentation relating to that testing from Meghan Clement and Lab Corp, but (3) despite his subpoena duces tecum, Meghan Clement did not bring all the Lab Corp documentation with her to trial. See S.F. State Habeas Hearing, testimony of Ed Camara, Jr., at p. 168.
Curiously, petitioner's trial counsel never offered any explanation for his failure to seek sanctions against Ms. Clement or Lab Corp or to otherwise seek to enforce his subpoena duces tecum. Likewise, petitioner's trial counsel offered no explanation for his failure to seek access to Lab Corp's records concerning the DNA done in petitioner's case until after the commencement of petitioner's trial. This Court's independent review of the record from petitioner's trial reveals no attempt made by petitioner's trial counsel to enforce any subpoena duces tecum or to request a continuance or additional time from the trial court to permit said counsel to do so.

The state habeas court concluded that, because the documents in question were in the custody of a third party, i.e., Lab Corp., they were equally accessible to both parties and petitioner had failed to demonstrate that he exercised due diligence in securing the documents in question.⁵⁵ This Court's independent review of the record from petitioner's trial and state habeas corpus proceedings reveals no evidence showing that either (1) the prosecution ever possessed any documentation regarding DNA testing that it failed to make fully available to petitioner's trial counsel or (2) petitioner's trial counsel employed due diligence to secure access to the Lab Corp's DNA testing records regarding petitioner's case.

55 See State Habeas Transcript, at p. 173 n. 1.

The Fifth Circuit has repeatedly held that evidence is not "suppressed" within the meaning of Brady if the defendant either knew, should have known, or with the exercise of due diligence could have learned, of the essential facts permitting him to take advantage of the evidence in question.⁵⁶ In this case, petitioner's trial counsel was aware of the existence of records in the possession, custody, or control of Lab Corp, undertook steps to obtain those records, but ultimately failed to seek enforcement of its subpoena duces tecum seeking production of those records. Petitioner's trial counsel also failed to make any motion for a continuance or for sanctions against Lab Corp for failing to comply with petitioner's subpoena duces tecum. Under such circumstances, the Texas Court of Criminal Appeals' rejection on the merits of this aspect of petitioner's Brady claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and habeas corpus proceedings.

56 See Graves v. Cockrell, 351 F.3d 143, 154 (5th Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2160, 158 L.Ed.2d 757 (2004) (holding that a valid Brady claim requires a showing that the undisclosed evidence was unavailable to a defendant despite the exercise of due diligence); Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002), cert. denied, 536 U.S. 978 (2002) (holding that Brady does not obligate the State to furnish the defendant with exculpatory evidence that is fully available to the defense through the exercise of reasonable diligence); In re Smith, 142 F.3d 832, 836 (5th Cir. 1998) (holding that if the defendant, using reasonable diligence, could have obtained the information, no claim arises under Brady ); Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997), cert. denied, 522 U.S. 1120 (1998); Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 513 U.S. 1137 (1995) (holding that a Brady violation does not arise if the defendant, using reasonable diligence, could have obtained the information); and Blackmon v. Scott, 22 F.3d 560, 564-65 (5th Cir. 1994), cert. denied, 513 U.S. 1060) (holding that the State is not required to furnish the defendant with exculpatory evidence that is fully available to the defendant or that could be obtained through reasonable diligence).

C. Giglio-Napue Claim

1. The Argument

In his second claim for federal habeas corpus relief, petitioner argues that unspecified portions of Rebecca Alfaro's testimony at petitioner's trial were false and that the prosecution failed to make petitioner's trial counsel aware of that fact.⁵⁷

57 See Petition, at pp. 36-37.

2. Clearly Established Federal Law

A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected.⁵⁸ To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing that (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing that it was false.⁵⁹ For use of perjured testimony to constitute constitutional error, the prosecution must have knowingly used the testimony to obtain a conviction.⁶⁰ In order for allegations of perjured testimony to constitute a due process violation, a defendant "must show that the prosecution knowingly presented materially false evidence to the jury."⁶¹ For the perjury to be material, there must have been a reasonable likelihood that the false testimony could have affected the judgment of the jury.⁶²

58 See Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), and Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); Hafdahl v. Johnson, 251 F.3d 528, 532 (5th Cir. 2001), cert. denied, 534 U.S. 1047 (2001); Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999); Pyles v. Johnson, 136 F.3d 986, 996 (5th Cir. 1998), cert. denied, 524 U.S. 933 (1998); Goodwin v. Johnson, 132 F.3d 162, 185 (5th Cir. 1997); Faulder v. Johnson, 81 F.3d 515, 518 (5th Cir. 1996), cert. denied, 519 U.S. 995 (1996).

59 See Giglio v. United States, 405 U.S. at 153-54, 92 S.Ct. at 766; United States v. Mason, 293 F.3d 826, 828 (5th Cir. 2002); Hafdahl v. Johnson, 251 F.3d at 532-33; Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000), cert. denied, 532 U.S. 975 (2001); Creel v. Johnson, 162 F.3d at 391; United States v. Haese, 162 F.3d 359, 365 (5th Cir, 1998), cert. denied, 526 U.S. 1138 (1999); Pyles v. Johnson, 136 F.3d at 996; Carter v. Johnson, 131 F.3d 452, 458 (5th Cir. 1997), cert. denied, 523 U.S. 1099 (1998); Goodwin v. Johnson, 132 F.3d at 185; Faulder v. Johnson, 81 F.3d at 518; Spence v. Johnson, 80 F.3d 989, 996-97 (5th Cir. 1996), cert. denied, 519 U.S. 1012 (1996); East v. Scott, 55 F.3d 996, 1005 (5th Cir. 1995), citing Napue v. Illinois, 360 U.S. at 271, 79 S.Ct. at 1178.

60 See Carter v. Johnson, 131 F.3d at 458; Spence v. Johnson, 80 F.3d at 996; Black v. Collins, 962 F.2d 394, 407 (5th Cir. 1992), cert. denied, 504 U.S. 992 (1992).

61 See Carter v. Johnson, 131 F.3d at 458; Spence v. Johnson, 80 F.3d at 996; Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990); United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989).

62 See Goodwin v. Johnson, 132 F.3d at 185; Carter v. Johnson, 131 F.3d at 459; and Spence v. Johnson, 80 F.3d at 997.

3. AEDPA Review

The state habeas trial court specifically found that (1) petitioner had failed to identify which parts of Alfaro's trial testimony were allegedly false and (2) there was no evidence suggesting that Alfaro's testimony was in any manner false.⁶³ On the contrary, the state habeas court cited the uncontradicted trial testimony of FILA company representative John Kivlehan as establishing that all FILA "slant shot" tennis shoes bore the same tread pattern on the bottom of their soles.⁶⁴ For the same reasons discussed at length in Section III.B.3. above,⁶⁵ these factual findings were all fully supported by the record before petitioner's state habeas court. Thus, the state habeas court reasonably concluded that petitioner had failed to demonstrate that any portion of Alfaro's trial testimony was factually inaccurate.

63 See State Habeas Transcript, at p. 174.

64 Id.

65 See notes 44-51 supra and accompanying text.

This Court's independent review of the record before petitioner's trial and state habeas courts reveals absolutely no evidence suggesting that the prosecution was ever aware of any factual errors in Alfaro's trial testimony. There is simply no evidence suggesting that the prosecution ever knowingly elicited any testimony from Alfaro that it knew to be false. Likewise, petitioner has offered no court any evidence establishing that the prosecution was ever aware that any of the testimony Alfaro gave during petitioner's trial under cross-examination or re-cross-examination was factually inaccurate.

Insofar as petitioner's pleadings in this Court can be construed as asserting that Alfaro testified falsely during petitioner's trial as to what she had told defense investigators, petitioner's claim of falsity fails because Alfaro admitted during cross-examination that she had previously told defense investigators something entirely different than she was then telling petitioner's jury.⁶⁶ Furthermore, petitioner offered absolutely no testimony at either petitioner's trial or state habeas corpus proceeding from either defense investigator refuting any aspect of Alfaro's trial testimony. Finally, as correctly pointed out by the state habeas court, petitioner has never offered any court any evidence suggesting that Alfaro's eleventh hour conclusion at trial regarding the identity of the tread patterns on the bottom of her and the petitioner's FILA tennis shoes was factually inaccurate. On the contrary, John Kivlehan's trial testimony establishing that all FILA "slant shot" tennis shoes bore the same tread pattern on their sole bottoms remains uncontradicted to this date, as does Alfaro's consistent assertion that her tennis shoes and petitioner's were the exact, same, model. Therefore, petitioner's complaint regarding unidentified errors in Alfaro's trial testimony fails to satisfy the materiality prong of the Giglio-Napue test. This Court's independent review of the record reveals that petitioner's assertions in support of his Giglio-Napue claim fails to satisfy any of the requirements for a showing of a due process violation.

66 See note 49 supra.

Under such circumstances, the state habeas court's rejection on the merits of petitioner's Giglio-Napue claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and habeas corpus proceedings.

D. Ineffective Assistance of Counsel Claims

1. Overview of the Arguments

In his third claim for relief, petitioner argues that his trial counsel rendered ineffective assistance to petitioner by (1) failing to adequately prepare for, rebut, and present DNA evidence, (2) failing to adequately voir dire and exercise peremptory challenges against biased members of the jury venire, (3) admitting during jury argument that petitioner could have been the source of the semen recovered from terry Wright's body, (4) failing to elicit favorable testimony from Alfaro and the prosecution's shoe print expert regarding the size of the running shoes the defense introduced at trial, (5) failing to object to and request jury instructions and definitions at the guilt-innocence phase of trial, and (6) failing to present mitigating evidence at the punishment phase of trial.⁶⁷

67 See Petition, at pp. 37-96.

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.⁶⁸

68 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."⁶⁹ 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.⁷⁰ The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight.⁷¹ It is strongly presumed that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.⁷² 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.⁷³ 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.⁷⁴ A criminal defense counsel is not required to exercise clairvoyance during the course of a criminal trial.⁷⁵ 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.⁷⁶

69 Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000); 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.

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

71 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.

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

73 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); 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).

74 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."

75 See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997), citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983), (holding that clairvoyance is not a required attribute of effective representation). 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).

76 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."⁷⁷ "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."⁷⁸ "Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."⁷⁹ 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."⁸⁰ "A reasonable probability is a probability sufficient to undermine confidence in the outcome."⁸¹ 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.⁸²

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

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

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

80 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.

81 Woodford v. Visciotti, 537 U.S. 19, 23, 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.

82 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. Complaints About DNA Evidence

Petitioner offers a litany of complaints regarding his trial counsel's handling of the prosecution's DNA evidence at trial. More specifically, petitioner complains that his trial counsel failed to (1) adequately prepare for the prosecution's DNA evidence, (2) adequately cross-examine the prosecution's DNA expert witness, (3) object to the admission of the DNA evidence, (4) obtain a ruling on the defense's pretrial motion to exclude the DNA evidence, (5) request a hearing outside the jury's presence on the admissibility of the DNA evidence, (6) voir dire the prosecution's DNA expert outside the jury's presence, and (7) present favorable DNA evidence.⁸³

83 See Petition, at pp. 37-55, 74-75, 81-83.

In support of these same contentions, petitioner presented the testimony of Dr. Paul Goldstein, a DNA expert, during the hearing in petitioner's state habeas corpus proceeding. During his testimony at petitioner's state habeas corpus proceeding, Dr. Goldstein (1) was critical of Lab Corp's failure to report a result for the D1S80 allele, (2) suggested that a poor quality photocopy of another test result indicated that a gel had shifted during testing, (3) argued strongly that additional, sequential, testing was necessary to properly distinguish petitioner's DNA from that of his nephew Brian Garcia, particularly with regard to the TH01 allele, but admitted that Lab Corp had employed standard testing procedures for the TH01 allele, (4) suggested that over-amplification could produce inaccurate test results, (5) was critical of the failure of Lab Corp to have more than one person actually sign off on test results, (6) was critical of Lab Corp's decision to exclude HBGG allele test results from their analysis but admitted he had no problems with the manner in which Lab Corp obtained its HBGG test results, (7) admitted that he had not personally conducted any DNA testing on any of the materials involved in petitioner's case, and (8) admitted that the ultimate conclusions reached by prosecution DNA expert Meghan Clement at petitioner's trial could be correct.⁸⁴

84 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Paul Goldstein, at pp. 31-90.

During petitioner's trial, prosecution expert Meghan Clement testified that (1) DNA testing performed on the sperm fraction derived from the vaginal swab obtained from Terry Wright revealed certain specific characteristics,⁸⁵ (2) DNA testing done on a known sample of the petitioner's DNA revealed the exact same characteristics as those obtained from testing the sperm fraction derived from the vaginal swab,⁸⁶ (3) Brian Garcia, the petitioner's nephew, did not possess the same DNA characteristic as either petitioner or the vaginal swab with regard to the D7S8 allele, thereby excluding Garcia as a possible donor of the sperm recovered from the vaginal swab,⁸⁷ (4) the peculiar combination of DNA factors present in both petitioner's DNA sample and the vaginal swab DNA sample appear randomly in the Southwestern Hispanic population about once in every nineteen million, nine hundred thousand persons,⁸⁸ (5) there was no indication of contamination by human DNA in any of the test results Lab Corp obtained,⁸⁹ and (6) there was no indication of any over-amplification in the sperm fraction of the vaginal swab's TH01 allele test.⁹⁰

85 More specifically, Meghan Clement testified that the sperm fraction of the DNA obtained from Terry Wright's vaginal swab yielded (1) a 1.2 3 result for the DQ Alpha test; (2) a B result for the LDLR test; (3) an A result on the GYPA test; (4) an A B result on the HBGG test; (5) an A result on the D7S8 test; (6) an A C result on the GC test; (7) a 7 9 result on the CSF test; (8) an 8 result on the TPOX test; (9) a 6 7 result on the TH01 test; (10) no discernable result on the D1S80 test. See S.F. Trial, Volume 19 of 24, testimony of Meghan Clement, at pp. 67-75. Ms. Clement also testified that the non-sperm portion of the vaginal swab DNA tested in every respect in a manner consistent with Terry Wright's DNA. Id. , at pp. 76-77.

86 Ms. Clement testified that petitioner's DNA sample yielded the exact same test results on each of the foregoing tests except the D1S80 test, for which petitioner's known DNA produced a 28 test result. Id.

87 Id. , at p. 69.

88 Id. , at pp. 75-76.

89 Id. , at pp. 76-77, 86, 90, 93, 97-98. Ms. Clement also testified that remaining blood samples existed from which further DNA testing could be done to confirm the results Lab Corp had obtained. Id. , at p. 78.

90 See S.F. Trial, Volume 19 of 24, testimony of Meghan Clement, at pp. 50-110.

The state habeas trial court found that petitioner failed to (1) establish that any exculpatory DNA evidence exists, (2) identify any legal basis for excluding the prosecution's DNA evidence at trial, or (3) identify any cognizable complaints about the admission of the prosecution's DNA evidence that could have been preserved for appellate review.⁹¹ The state habeas trial court concluded that, at best, the testimony of petitioner's DNA expert at the state habeas hearing furnished a basis for impeaching the prosecution's DNA expert at trial.⁹² The state habeas court concluded that none of petitioner's complaints about the handling of DNA evidence by his trial counsel satisfied both prongs of Strickland. ⁹³

91 See State Habeas Transcript, at pp. 178-79.

92 Id., at p. 178.

93 Id., at p. 179.

This Court's independent review of the testimony from petitioner's trial and state habeas corpus proceeding leads to the inexorable conclusion that the state habeas court's rejection on the merits of this aspect of petitioner's ineffective assistance complaints was both eminently reasonable from a factual standpoint and wholly consistent with federal law, as announced by the Supreme Court. The bottom line is that the prosecution's DNA expert testified at trial that the petitioner's DNA matched the characteristics obtained from testing of the sperm fraction of the vaginal swab obtained during the autopsy of Terry Wright. The petitioner's DNA expert, Dr. Goldstein, did not refute any of Meghan Clement's trial testimony regarding either the genetic characteristics of the sperm fraction of Terry Wright's vaginal swab or the genetic characteristics of the petitioner's blood sample. On the contrary, Dr. Goldstein testified during the state habeas corpus hearing that (1) Lab Corp's record-keeping was inadequate in his judgment and (2) additional testing should have been done to ensure that the petitioner's nephew, Brian Garcia, was properly excluded as a possible source of the DNA found in the sperm fraction of the vaginal swab.

The latter of these complaints was properly rejected by the state habeas court for the simple reason that, at no time has petitioner alleged any facts, much less presented any evidence, showing that Brian Garcia had any involvement in the murder of Terry Wright. The fact that petitioner's DNA was very similar to that of his nephew, a blood relative, is neither exculpatory nor a basis for impeaching Meghan Clement's conclusion that petitioner's DNA matched that of the sperm fraction obtained from Terry Wright's vaginal swab. In the absence of any evidence showing that Garcia had the opportunity to furnish the sperm found in the vaginal swab fraction found in Terry Wright, the similarity between petitioner's and Garcia's DNA has no relevance to any issue in this cause.⁹⁴

94 In fact, at this juncture, it remains a total mystery to this court why Brian Garcia's DNA was even submitted for testing by law enforcement agents at the same time petitioner's DNA was submitted to Lab Corp for PCR testing.

Dr. Goldstein's criticisms of Lab Corp's record-keeping procedures must be viewed in context of (1) his admission that Lab Corp employed standard testing methodology in its testing of petitioner's DNA and the sperm fraction of Terry Wright's vaginal swab, (2) his admission that Meghan Clement's conclusions regarding the match between petitioner's genetic characteristics and those obtained from testing of the sperm fraction of Terry Wright's vaginal swab could be correct, and (3) his failure to conduct any new or independent genetic testing that produced any results contradicting those which Lab Corp obtained when it tested all of the genetic material in question.

Petitioner's trial co-counsel, attorney Ed Camara, Jr., testified during petitioner's state habeas corpus hearing that (1) he did not call a DNA expert to testify at petitioner's trial but did consult with one prior to trial, (2) he subpoenaed all of Lab Corp's records concerning its DNA testing done in petitioner's case but did not obtain all those records because Meghan Clement failed to bring all of them with her when she appeared to testify, (3) after consulting with his client, he chose to attempt to explain the presence of petitioner's semen inside Terry Wright by suggesting, and presenting evidence showing, that petitioner and Wright had engaged in a consensual sexual relationship, (4) had he been aware of the contents of Lab Corp's records, he would have attacked the DNA test results more aggressively, and (5) he recognized, however, that taking such an approach might have alienated the jury and undercut his contention that the petitioner and Wright had engaged in a consensual sexual liaison shortly before her death.⁹⁵

95 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Ed Camara, Jr., at pp. 167-68, 189, 193-97, 202-03, 217-20.

Attorney Camara's mea culpas regarding what he perceived to be the deficiencies in his performance vis-a-vis the prosecution's DNA evidence do not, standing alone, satisfy the prejudice prong of Strickland. On the contrary, it is clearly established that a federal habeas corpus petitioner has the burden of establishing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."⁹⁶ Petitioner's complaints about his trial counsel's handling of the prosecution's DNA evidence do not meet this standard.

96 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.

More specifically, petitioner complains that his trial counsel should have more adequately prepared for the prosecution's DNA evidence, more adequately cross-examine the prosecution's DNA expert witness, objected to the admission of the prosecution's DNA evidence, obtained a ruling on the defense's pretrial motion to exclude the DNA evidence, requested a hearing outside the jury's presence on the admissibility of the DNA evidence, conducted a voir dire examination of the prosecution's DNA expert outside the jury's presence, and presented favorable DNA evidence. However, as correctly determined by the state habeas court, there was no exculpatory DNA evidence available at the time of petitioner's trial, or at any other time for that matter.⁹⁷ Moreover, petitioner has failed to identify any legal basis for excluding the trial testimony of the prosecution's DNA expert. Petitioner has not identified any potentially beneficial evidence or information that his trial counsel might have gleaned during a voir dire examination of Meghan Clement outside the jury's presence. Despite petitioner's complaint that his trial counsel failed to "properly preserve" petitioner's complaints about the admission of the DNA evidence at petitioner's trial, the Texas Court of Criminal Appeals addressed the merits of those complaints on direct appeal and found them to be wholly without merit under applicable state evidentiary principles.⁹⁸ Thus, there is no factual or legal basis for a finding that the failure of petitioner's trial counsel to challenge the admission of the prosecution's DNA evidence "prejudiced" petitioner within the meaning of Strickland. ⁹⁹

97 As the state habeas trial court also correctly noted, the impeachment value of Dr. Goldstein's testimony during petitioner's state habeas corpus proceeding would have been extremely narrow, given his failure to produce any DNA test results contradicting those obtained by Lab Corp and his admission that Meghan Clement's ultimate conclusions might have been correct. Dr. Goldstein's speculative assertion that additional DNA testing might have excluded petitioner as a possible donor of the sperm fraction obtained from Terry Wright's vaginal swab does not satisfy the standard for establishing "prejudice" under Strickland. See Collier v. Cockrell, 300 F.3d 577, 587 (5th Cir. 2002), cert. denied, 537 U.S. 1084); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000); Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999).

98 See Hinojosa v. State, 4 S.W.3d at 250-51.

99 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."; Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990): "counsel is not required to make futile motions or objections."; Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984): "Counsel is not required to engage in the filing of futile motions."

At best, petitioner presented the state habeas court with evidence suggesting that there was evidence available at the time of petitioner's trial which could have been used to criticize the record-keeping undertaken by Lab Corp in connection with its DNA testing in petitioner's case. However, at no time did petitioner present the state court with any fact-specific allegations, much less any evidence, showing that the test results obtained by Lab Corp as a result of its examination of petitioner's blood and the sperm fraction of Terry Wright's vaginal swab were inaccurate.¹⁰⁰ On the contrary, petitioner's own DNA expert admitted that Meghan Clement's trial testimony could have been accurate.¹⁰¹

100 Despite the length and breadth of Dr. Goldstein's testimony at petitioner's state habeas corpus hearing, he did not identify any of the specific test results obtained by Lab Corp or relied upon by Meghan Clement during her trial testimony as inaccurate.

101 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Paul Goldstein, at p. 87.

Under such circumstances, the state habeas court reasonably concluded that petitioner's complaints about his trial counsel handling of DNA evidence do not satisfy either prong of the Strickland standard. In so doing, the Texas Court of Criminal Appeals applied the prevailing federal constitutional standard, i.e., the dual prongs of Strickland, in a perfectly reasonable manner. The Texas Court of Criminal Appeals' rejection on the merits of petitioner's complaints about his trial counsel's handling of DNA evidence 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 trial and habeas corpus proceedings.

b. Complaints About Shoe Print Evidence

Petitioner complains that his trial counsel failed to (1) adequately cross-examine prosecution witness Rebecca Alfaro regarding petitioner's shoe size, (2) interview prosecution expert witness John Kivlehan prior to trial, and (3) present favorable evidence showing that petitioner's FILA running shoes could not have made the impressions found at the crime scenes but that Rebecca Alfaro's tennis shoes might have done so.¹⁰²

102 See Petition, at pp. 67-70 84-85.

During petitioner's trial, Rebecca Alfaro testified, in pertinent part, that (1) she had purchased a pair of FILA tennis shoes for petitioner that were identical, except for size, to the FILA tennis shoes she had purchased for herself (which were admitted into evidence as State Exhibit Nos. 71 72), (2) petitioner's FILA tennis shoes were much larger than her own pair, and (3) she was unable to locate petitioner's FILA tennis shoes after the murder of Terry Wright.¹⁰³ FILA company representative John Kivlehan testified at petitioner's trial that (1) all models of the men's and women's versions of the FILA "slant shot" tennis shoes in question bore the same sole pattern, (2) the only difference between the men's and women's models of that tennis shoe were the size of the shoe, with women's models having a much narrower out-sole, especially in the ball of the foot, and (3) in his opinion, the shoe prints found at Terry Wright's home and at the location where her body was discovered were made by men's shoes.¹⁰⁴ A tool mark expert testified at petitioner's trial that (1) the right shoe pattern on Rebecca Alfaro's FILA tennis shoes was consistent with the pattern of the shoe prints found at both Terry Wright's residence and the location where her body was recovered, (2) the shoe prints in question were preserved by plaster casts that were quite a bit larger than the inked impressions of the soles of Rebecca Alfaro's tennis shoes, and (3) in his opinion, Rebecca Alfaro's tennis shoes were too small to have made the impressions found at either of the crime scenes.¹⁰⁵

103 See S.F. Trial, Volume 18 of 24, testimony of Rebecca Alfaro, at pp. 71-73, 77-78, 84, 101. Photographs of Rebecca Alfaro's size 8 FILA tennis shoes were also admitted into evidence as State Exhibit Nos. 68-69. Id., at p. 72; and S.F. Trial, Volume 24 of 24, at pp. 142-45.

104 See S.F. Trial, Volume 17 of 24, testimony of John A. Kivlehan, at pp. 158-65, 169, 171.

105 See S.F. Trial, Volume 18 of 24, testimony of Richard Stengel, at pp. 108, 112, 114-17.

Petitioner's trial counsel later introduced a pair of FILArunning shoes into evidence (as Defense Exhibit Nos. 20 21) that petitioner's sister testified she had found among petitioner's clothes and possessions many months after petitioner's arrest.¹⁰⁶ However, petitioner offered no testimony or other evidence suggesting that the FILA running shoes presented by the defense at trial bore any relationship to the murder of Terry Wright. In fact, on cross-examination, petitioner's sister admitted that, after Terry Wright's murder, she had searched for a pair of petitioner's tennis shoes that matched Rebecca Alfaro's tennis but was unable to locate same.¹⁰⁷

106 See S.F. Trial, Volume 20 of 24, testimony of Irene Hernandez, at pp. 214-17.

107 Id., at pp. 223-24.

During petitioner's state habeas corpus hearing, John Kivlehan, who had testified as an expert on FILA shoe tread patterns at petitioner's trial, testified further that (1) the FILA running shoe admitted at trial as Defense Exhibit no. 20 was a completely different style and model shoe from the FILA tennis shoe admitted into evidence as State Exhibit No. 72, (2) FILArunning shoes have a much larger and more pronounced bottom sole than FILA tennis shoes, (3) when a person steps into a tennis shoe, a degree of expansion of the sole occurs, (4) Defense Exhibit No. 20 could not have made the impressions found at either crime scene, (5) he was unable to say what size tennis shoe made the impressions preserved in plaster casts from the crimes scenes, and (6) while it was possible that a men's size ten tennis shoe had made those impressions, he did not believe that was, in fact, the case.¹⁰⁸ Petitioner's trial counsel testified during petitioner's state habeas corpus hearing that (1) he did not interview Kivlehan prior to trial, (2) he never asked Kivlehan about shoe sizes, and (3) he believed he should have asked Kivlehan to compare the size of Defense Exhibit No. 20 with the shoe impressions found at the crime scenes.¹⁰⁹

108 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of John Kivlehan, at pp. 143, 145-46, 153, 155-56. Kivlehan admitted during his testimony at petitioner's state habeas hearing that (1) this was the first and only case in which he had ever testified as an expert, (2) he knew about soil expansion, and (3) men's size FILA products are larger than corresponding sizes for women's models. Id., at pp. 141, 150, 156.

109 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Ed Camara, Jr., at pp. 164-67.

The state habeas trial court concluded that (1) Kivlehan's testimony at petitioner's state habeas hearing was neither exculpatory nor relevant to any issue at trial because there was no evidence linking petitioner's running shoes (i.e., Defense Exhibit No. 20) to the crime and no evidence suggesting that petitioner could not have worn a pair of FILA tennis shoes capable of leaving the shoe impressions found at both crime scenes and (2) for those reasons, petitioner's complaints about his trial counsel's handling of shoe print evidence did not satisfy the prejudice prong of Strickland. ¹¹⁰

110 See State Habeas Transcript, at pp. 180-81.

Having independently reviewed the evidence from both petitioner's trial and state habeas corpus proceeding, this Court concludes that the Texas Court of Criminal Appeals acted in a wholly reasonable manner, fully consistent with federal law, when it rejected this aspect of petitioner's ineffective assistance claim. There is simply no reasonable probability that, but for the alleged deficiencies in the performance of petitioner's trial counsel in connection with the shoe print evidence identified by petitioner, the outcome of either phase of petitioner's capital murder trial would have been different.

At trial, Rebecca Alfaro testified that she purchased petitioner a pair of FILA tennis shoes identical to her own FILA "slant shot" tennis shoes, except that petitioner's tennis shoes were much bigger than her own. John Kivlehan testified that all FILA "slant shot" tennis shoes, both men's and women's, have identical out sole patterns on the bottom. A tool mark expert testified that (1) the out sole pattern on Rebecca Alfaro's FILA "slant shot" tennis shoes was the same, except for size, to the plaster casts of shoe impressions found at both crime scenes and (2) the plaster casts were quite a bit larger than Alfaro's shoes. Nothing in Kivlehan's testimony given during petitioner's state habeas corpus proceeding casts any doubt upon the veracity or accuracy of any of the foregoing trial testimony.

Moreover, the prosecution never suggested that petitioner's FILA running shoes had any relevance to the murder of Terry Wright. Therefore, the contention by petitioner's trial counsel that he should have asked Kivlehan to compare the size of the out sole of Defense Exhibit No. 20 (i.e., petitioner's FILA running shoe) with the plaster casts of the shoe impressions from the crime scenes (which a prosecution expert opined had been made by a FILAtennis shoe) has no merit. Such a comparison would have been overtly irrelevant to any issue then before petitioner's jury.

Likewise, Kivlehan's equivocating testimony during petitioner's state habeas corpus hearing regarding the possible size of the FILA tennis shoes that might have been responsible for making the shoe impressions at the crime scenes would have offered petitioner no benefit at trial.¹¹¹ This is because petitioner never introduced any evidence at either his trial or state habeas hearing establishing the precise size of his FILA men's "slant shot" tennis shoes.¹¹²

111 During petitioner's state habeas corpus hearing, Kivlehan testified that (1) he could not say what size shoe had made the impressions at the crime scenes, (2) he did not believe that a men's size 10 had made those impressions, but (3) it was possible that a man's size ten had made the impressions. See S.F. State Habeas hearing, Volume 1 of 2, testimony of John Kivlehan, at pp. 155-56.

112 Petitioner did not call Rebecca Alfaro to testify at his state habeas corpus hearing regarding the size of the FILAtennis shoes she purchased for petitioner. At trial, Alfaro testified on direct examination that (1) she had purchased petitioner's pair of FILA tennis shoes prior to purchasing her own pair and (2) petitioner's pair were "much larger" than her own, "between 10 and 11." See S.F. Trial, Volume 18 of 24, testimony of Rebecca Alfaro, at pp. 71-73.

Finally, petitioner offered the state habeas court no evidence suggesting that he was prejudiced within the meaning of Strickland by his trial counsel's failure to voir dire Kivlehan outside the jury's presence. Petitioner's trial counsel admitted during his testimony at petitioner's state habeas corpus hearing that he was not surprised by any of the expert testimony presented by the prosecution.¹¹³ Petitioner has not identified any potentially beneficial information which could have been gleaned from a voir dire examination of Kivlehan outside the jury's presence.

113 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Ed Camara, Jr., at pp. 177-78.

Under such circumstances, the Texas Court of Criminal Appeals' rejection on the merits of petitioner's complaints about his trial counsel's handling of shoe print evidence 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 trial and habeas corpus proceedings.

c. Complaints About Voir Dire and Jury Selection

Petitioner complains that his trial counsel failed to adequately voir dire certain members of the jury venire, failed to object to allegedly improper comments made by the trial court regarding the presumption of innocence, and permitted biased venire members to serve on his petit jury.¹¹⁴

114 See Petition, at pp. 56-66 86-90. More specifically, petitioner complains that his trial counsel permitted individuals with ties or sympathies to law enforcement to serve as petit jurors and failed to exercise peremptory challenges against members of the jury venire after said counsel made challenges for cause against those same venire members in their presence.

While petitioner did question petitioner's co-counsel, attorney Ed Camara, Jr., during the petitioner's state habeas corpus hearing, petitioner did not make any inquiries concerning said counsel's decision-making during voir dire. Likewise, petitioner did not question his other trial counsel, attorney Vincent Callahan, at the same hearing despite his presence and availability for questioning. The state habeas trial court (1) found that petitioner had presented no evidence "which even touched on trial counsel's motivations with respect to the jurors in question" and (2) concluded that petitioner had, therefore, failed to overcome the presumption that his trial counsel exercised peremptory challenges "for valid strategic reasons."¹¹⁵

115 See State Habeas Transcript, at p. 182.

The state habeas court correctly noted the existence of a strong presumption that counsel's performance fell within the broad parameters of professionally reasonable representation. 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.¹¹⁶ The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight.¹¹⁷ It is strongly presumed that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.¹¹⁸ Faced with a record bereft of any attempt on petitioner's part to explore the thought process underlying his trial counsel's exercise of peremptory challenges or decisions regarding what questions to ask different members of the jury venire, the state habeas court reasonably applied clearly established federal law in holding that petitioner failed to overcome this presumption.

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

117 See Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844; Burger v. Kemp, 483 U.S. at 789, 107 S.Ct. at 3123; and Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065-66.

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

Furthermore, having independently reviewed the record from petitioner's trial and state habeas corpus proceedings, this Court concludes that petitioner's complaints regarding his trial court's performance during voir dire do not satisfy the prejudice prong of Strickland. While petitioner complains that his trial counsel failed to object to comments made by the trial judge regarding the nature of the presumption of innocence, petitioner identifies no authority holding that any of the trial judge's comments were erroneous under applicable state or federal law.¹¹⁹ While petitioner complains that his trial counsel should have exercised peremptory challenges against various members of the jury venire, his accompanying assertions that these jurors were biased or prejudiced against petitioner are wholly speculative and without support in the record.¹²⁰ Each of petitioner's petit jurors took an oath to render a verdict based upon the evidence presented at trial.¹²¹ Furthermore, the state trial court carefully instructed the jury at each phase of petitioner's capital murder trial to render its verdict based on the evidence before it.¹²² Juries are presumed to follow the trial court's instructions.¹²³ Under such circumstances, petitioner's conclusory assertions of bias on the part of several of his petit jurors do not satisfy the prejudice prong of Strickland.

119 When viewed in proper context, the remarks by the state trial judge about which petitioner's complains were little more than attempts by the state trial court to clarify the nature of the presumption of innocence. Most of the remarks about which petitioner complains were addressed to members of the jury venire whose voir dire examination disclosed they lacked proficiency in the English language. The state trial judge was attempting in his remarks to explain that he and the attorneys were not advising the potential jurors the defendant was, in fact, innocent but, rather, that the defendant was presumed innocent under the law in the absence of any evidence establishing his guilt. See S.F. Trial, Volume 5 of 24, voir dire examination of Jose Hernandez Sanchez, at pp. 469-72; voir dire examination of Guadalupe Estrada, at pp. 513-15; and Volume 7 of 24, voir dire examination of Fidel Rodriguez, at pp. 88-89.

120 Contrary to the contention implicit in petitioner's argument, there is no clearly established federal law recognizing a presumption of disqualifying bias against criminal defendants possessed by potential jurors who have personal ties, or family member with personal ties, to law enforcement agencies.
Both the Fifth Circuit and this Court have held that, absent a showing that any of the twelve persons who actually served as petit jurors in a criminal trial were biased against the defendant or otherwise unqualified to serve in that capacity, a convicted defendant's complaints about alleged deficiencies in the performance of his trial counsel during jury selection donot satisfy the prejudice prong of Strickland. See Teague v. Scott, 60 F.3d 1167, 1172-73 (5th Cir. 1995) (holding that complaints about trial counsel's performance at voir dire failed to satisfy the prejudice prong of Strickland absent specific factual allegations showing that any biased venire members actually served on the jury); Clark v. Collins, 19 F.3d 959, 965 (5th Cir. 1994), cert. denied, 513 U.S. 966 (1994) (holding that, absent some specific allegation that bias somehow tainted the actual petit jury, a defendant's conclusory complaints about his trial counsel's conduct of voir dire do not satisfy the prejudice prong of Strickland ); and Cordova v. Johnson, 993 F.Supp. 473, 531-32 (W.D. Tex. 1998), affirmed 157 F.3d 380 (5th Cir. 1998), cert. denied, 525 U.S. 1131 (1999). Conclusory assertions that a differently composed petit jury might have rendered a different verdict are far too speculative to support a finding of prejudice under Strickland. Mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994), cert. denied, 513 U.S. 1054 (1994), (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief); Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994), (holding that, without a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to a trial counsel's failure to investigate, develop, and present same, i.e., a showing of exactly what the missing evidence or testimony would have been, a court cannot even begin to apply the Strickland analysis because it is very difficult to determine whether the defendant was prejudiced by any such deficiencies in counsel's performance); United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990); Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir. 1989), cert. denied, 501 U.S. 1259 (1991); United States v. Woods, 870 F.2d 285, 288 n. 5 (5th Cir. 1989); and Ross v. Estelle, 694 F.2d 1008, 1011-12 n. 2 (5th Cir. 1983).

121 See S.F. Trial, Volume 16 of 24, at p. 13.

122 See Trial Transcript, Volume II of II, at pp. 197-208 220-23.

123 See Penry v. Johnson, 532 U.S. at 799, 121 S.Ct. at 1922.

For the foregoing reasons, the Texas Court of Criminal Appeals' rejection on the merits of petitioner's ineffective assistance complaints about his trial counsel's performance during voir dire and jury selection 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 trial and habeas corpus proceedings.

d. Complaints About Jury Arguments

Petitioner argues that his trial counsel rendered ineffective assistance by acknowledging during both opening and closing jury arguments that petitioner was the source of the semen found inside Terry Wright's body.¹²⁴ Petitioner fairly presented these same complaints to the Texas Court of Criminal Appeals in the course of his state habeas corpus proceeding¹²⁵ yet the state habeas trial court failed to make any findings of fact or conclusions of law regarding same. Accordingly, this Court must conduct a de novo review of same.¹²⁶

124 See Petition, at pp. 66-67 71.

125 See State Habeas Transcript, at pp. 49-50 53.

126 See Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003) (holding the AEDPA's deferential standard of review inapplicable where the petitioner fairly presented the claim to the state courts but the state court misunderstood the nature of the claim or otherwise failed to adjudicate the claim in the merits); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004), (holding the same); Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999), (applying de novo review to a claim the state courts failed to adjudicate on the merits despite petitioner's fairly presenting same to the state court).

This aspect of petitioner's multi-faceted ineffective assistance claim fails to satisfy either prong of Strickland. Petitioner's trial co-counsel testified without contradiction during petitioner's state habeas corpus hearing that (1) petitioner informed him that petitioner had engaged in a consensual sexual liaison with Terry Wright shortly before her murder, (2) based on that information, said counsel argued to the jury that the presence of petitioner's semen inside Terry Wright's body did not establish that petitioner had sexually assaulted Wright, (3) in further support of this position, said counsel introduced the testimony of witnesses at the guilt-innocence phase of trial who had seen petitioner and Wright socializing together on previous occasions, and (4) said counsel did not believe it was in petitioner's best interests to allow petitioner to testify at the guilt-innocence phase of trial because such testimony would have opened the door to impeachment of petitioner through admission of evidence regarding petitioner's prior criminal convictions.¹²⁷ Based upon the information related to said counsel by petitioner, the decision by petitioner's trial counsel to address the presence of petitioner's semen inside Terry Wright's body through argument and evidence suggesting petitioner had engaged in a consensual sexual liaison with Wright shortly before her murder falls well within the broad parameters of objectively reasonable professional performance. Thus, these complaints do not satisfy the first prong of Strickland.

127 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Ed Camara, Jr., at pp. 193-97.

Furthermore, in view of the uncontradicted evidence showing that the petitioner's DNA was a match for the DNA found in the sperm fraction of Terry Wright's vaginal swab, and petitioner's failure to present any evidence showing that he was not the source of the sperm found inside Wright's body or to otherwise contradict his trial counsel's account of the information petitioner conveyed to said counsel, the admission by petitioner's trial counsel that petitioner was, or at least might have been, the source of the sperm in question did not "prejudice" petitioner within the meaning of Strickland. Under such circumstances, there is simply no reasonable probability that, but for the admissions by petitioner's trial counsel, the outcome of either phase of petitioner's capital murder trial would have been any different.

e. Complaints About G-I Phase Jury Instructions

(1) Overview of the Complaints

Petitioner complains that, in connection with the jury instructions at the guilt-innocence phase of his capital murder trial, his trial counsel failed to (1) request a jury instruction on the lesser-included offense of murder, (2) request a definition of the term "same criminal episode," or (3) object to the absence of a directive that, before returning a guilty verdict, the jury must reach unanimity with regard to at least one of the four theories of capital murder alleged in the indictment.¹²⁸

(2) State Court Disposition

The Texas Court of Criminal Appeals rejected this aspect of petitioner's multi-faceted ineffective assistance claim based upon its eminently reasonable determinations that (1) under the evidence presented at petitioner's trial, petitioner was not entitled to a jury instruction on the lesser-included offense of murder and (2) petitioner's other complaints about his guilt-innocence phase jury instructions were without merit.¹²⁹

(3) AEDPA Review

(a) Lesser-Included Offense Instruction

Petitioner was entitled to a jury instruction on the lesser-included offense of murder under neither state nor federal law. Under Texas law at the time of petitioner's trial, a defendant was entitled to a charge on a lesser-included offense only if (1) the elements of the lesser-included offense were included within the proof necessary to establish the offense charged and (2) some evidence existed in the record which would permit a rational jury to find that, if the defendant were guilty, he was guilty of only the lesser-included offense.¹³⁰

130 See Adanandus v. State, 866 S.W.2d 210, 232 Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994); Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 919 (1993).

In a capital murder case, a criminal defendant is constitutionally entitled to an instruction on a lesser-included offense if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense and acquit him of the greater.¹³¹ The Fifth Circuit has frequently applied that this standard to its habeas review of Texas capital murder cases.¹³² Therefore, a Texas capital murder defendant is entitled to an instruction on a lesser included offense under federal law if the evidence would permit a jury rationally to find him guilty of the lesser offense and to acquit him of the greater.¹³³ This necessarily requires a showing that the facts of the case and the laws of the State warrant such an instruction.¹³⁴

131 See Hopper v. Evans, 456 U.S. 605, 611-12, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982); and Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980).

132 See Dowthitt v. Johnson, 230 F.3d at 757; Jones v. Johnson, 171 F.3d 270, 274 (5th Cir. 1999), cert. denied, 527 U.S. 1059 (1999); Nobles v. Johnson, 127 F.3d 409, 418-19 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Ransom v. Johnson, 126 F.3d 716, 724-25 (5th Cir. 1997), cert. denied, 522 U.S. 944 (1997); East v. Scott, 55 F.3d 996, 1005 (5th Cir. 1995); Mann v. Scott, 41 F.3d 968, 976 (5th Cir. 1994), cert. denied, 514 U.S. 1117 (1995); Allridge v. Scott, 41 F.3d 213, 218-19 (5th Cir. 1994), cert. denied, 514 U.S. 1108 (1995); Kinnamon v. Scott, 33 F.3d 462, 464-65 (5th Cir. 1994), cert. denied, 513 U.S. 1054 (1994); Andrews v. Scott, 21 F.3d 612, 629 (5th Cir. 1994), cert. denied, 513 U.S. 1114 (1995); Cantu v. Collins, 967 F.2d 1006, 1013 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993); Lincecum v. Collins, 958 F.2d 1271, 1275 (5th Cir. 1992), cert. denied, 506 U.S. 957 (1992); Montoya v. Collins, 955 F.2d 279, 285-86 (5th Cir. 1992), cert. denied, 506 U.S. 1036 (1992); and Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988), cert. denied 486 U.S. 1061 (1988).

133 Id.

134 See Jones v. Johnson, 171 F.3d at 275 (holding that, under Texas law, evidence showing the brutal, drawn-out nature of the murder furnished evidence the crime was intentional and negated a defendant's claim that his crime was merely knowingly committed); Nobles v. Johnson, 127 F.3d at 419 (holding that, under Texas law, when a defendant initiates a criminal episode, a victim's attempts to defend himself will not rise to the level of "adequate cause" from which sudden passion will arise for purposes of the former offense of voluntary manslaughter); East v. Scott, 55 F.3d at 1005-06 (holding that, under Texas law, evidence of voluntary intoxication does not negate the specific intent to commit murder or necessitate a jury instruction on the lesser-included offense of felony murder); Mann v. Scott, 41 F.3d at 976-78 (holding that, under Texas law, a murder committed in the course of an attempted robbery was sufficient to prove capital murder and evidence showing the murder occurred prior to the completion of the robbery did not mandate a jury instruction on non-capital murder); Cantu v. Collins, 967 F.2d at 1013-14 (examining state law to determine whether a capital murder defendant was entitled to instructions on the lesser included offense of voluntary manslaughter); Lincecum v. Collins, 958 F.2d at 1275-77 (examining state law to determine whether a capital murder defendant was entitled to jury instructions on the lesser included offenses of murder and voluntary manslaughter).

There was simply no evidence introduced during the guilt-innocence phase of petitioner's trial from which arational jury could have concluded that, if petitioner were guilty of a criminal offense in connection with the death of Terry Wright, it was only her murder. There was no evidence presented at the guilt-innocence phase of petitioner's trial establishing that Terry Wright's murder was unrelated to either the burglary of her home or her contemporaneous robbery, kidnaping, and sexual assault. It was undisputed at petitioner's trial that, on the night of Terry Wright's murder, her residence was burglarized. It was likewise undisputed that her vehicle and other items of her personal property were taken from her residence at or about the time of said burglary. The evidence inside her residence amply demonstrated that a physical struggle of considerable magnitude ensued following a forceful entry into her residence. Her nude body, which bore evidence of sexual assault, was located less than a day after her disappearance in an isolated location, not far from the spot where her inoperable vehicle was recovered. Petitioner consistently denied to his trial counsel any involvement whatsoever in Terry Wright's murder.¹³⁵ Under such circumstances, said counsel's failure to request a jury instruction on the lesser-included offense of murder was neither objectively unreasonable nor "prejudicial" within the meaning of Strickland.

135 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Ed Camara, Jr., at pp. 185, 189-90, 204.

(b) "Same Criminal Episode" Definition

Petitioner argues without any citation to authority, or any accompanying explanation, that it was error for the state trial court to fail to define the term "same criminal episode" in his guilt-innocence phase jury instructions and that his trial counsel rendered ineffective assistance in failing to object to such a definition. However, that phrase in question appears in petitioner's guilt-innocence phase jury instructions only twice and both instances are in the paragraph defining the predicate felony offense of aggravated sexual assault in a manner wholly consistent with the statutory definition of that offense.¹³⁶ Petitioner offers no authority or explanation as to why a definition of this straight-forward phrase was necessary or how its absence prejudiced him within the meaning of Strickland. Under such circumstances, petitioner's complaints fail to satisfy either prong of Strickland.

136 See Trial Transcript, Volume II of II, at p. 198. The current statutory definition of the offense of "aggravated sexual assault" appears at Texas Penal Code Annotated, Section 22.021(a) (2) (i) (iv) (Vernon 2003). The current statutory language is completely consistent with the statutory language of the same statutory provision in effect at the time of petitioner's offense.

(c) Unanimity Requirement

Petitioner argues that the state trial court should have instructed his jury a the guilt-innocence phase of trial that it had to reach a unanimous verdict on at least one of the four theories of capital murder charged in the indictment before it could return a guilty verdict and that the failure of his trial counsel to request such an instruction or object to its absence constituted ineffective assistance. However, the Supreme Court rejected the argument implicit in petitioner's argument in Schad v. Arizona. ¹³⁷ In Schad, a majority of the Supreme Court recognized the general rule that a single count may include allegations that the defendant committed the offense by one or more specified means and held that there is no constitutional requirement that the jury reach unanimity on the preliminary factual issues which underlie the verdict.¹³⁸ If, as the Supreme Court majority held in Schad, there is no constitutional requirement that a capital murder jury reach unanimity with regard to any of several specific means by which such a crime may be committed when the indictment alleges multiple theories of the offense, then the premise underlying petitioner's argument vanishes. As explained in Schad, the prosecution properly indicted petitioner on a single count of capital murder and alleged and attempted to prove several different factual theories by which petitioner could have committed that single offense.¹³⁹ Hence, petitioner's complaint that the guilt-innocence phase jury charge did not instruct his jury to render a "guilty" verdict only if the jury unanimously agreed on one of the four specific theories of the offense alleged in the indictment is non sequitur. It is not within the province of this Court to either disregard or overrule the Supreme Court majority's clear holding in Schad. The failure of petitioner's trial counsel to make the objection or to request the jury instruction urged by petitioner neither caused the performance of said counsel to fall below an objective level of reasonableness nor "prejudiced" petitioner within the meaning of Strickland.

(4) Conclusions

For the foregoing reasons, the Texas Court of Criminal Appeals' rejection on the merits of petitioner's complaints about his trial counsel's alleged deficiencies vis-a-vis the guilt-innocence phase jury instructions 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 trial and habeas corpus proceedings.

f. Failure to Present Mitigating Evidence

Finally, petitioner argues that his trial counsel rendered ineffective assistance by failing to discover, develop, and present available mitigating evidence at the punishment phase of petitioner's trial showing that petitioner (1) had a family history of parental abuse, including physical violence and emotional isolation, (2) lacked stability in his marital relationships, (3) rarely attended church, and (4) had a family history that included depression, suicide, and mental illness.¹⁴⁰

140 See Petition, at pp. 71-73 95-96.

During the punishment phase of petitioner's capital murder trial, his trial counsel presented several of petitioner's family members and a family friend who made emotional appeals for mercy on petitioner's behalf and attempted to show petitioner in a sympathetic light.¹⁴¹ Petitioner's trial counsel also presented testimony from two jail detention officers establishing that petitioner had been a model prisoner during his pretrial detention.¹⁴²

141 More specifically, three of petitioner's sisters each (1) made an emotional appeal for mercy for petitioner and (2) testified that petitioner had done poorly in school due to his dyslexia and had not graduated from high school. See S.F. Trial, Volume 22 of 24, testimony of Lisa Pecina, at pp. 38-41; testimony of Linda Carroll, at pp. 42-44; and testimony of Irene Hernandez, at pp. 45-46. Petitioner's sister Lisa Pecina also explained during her testimony that the petitioner had been married and divorced four times and had fathered six children. Id. , testimony of Lisa Pecina, at p. 40-41. Petitioner's older brother (1) made an emotional plea for mercy on petitioner's behalf, (2) testified that the oldest brother in their family, Gregory, had been shot and killed in 1972, (3) testified that when his young daughter, who shared a birthday with petitioner, died in 1988, the petitioner told him that he would never celebrate his birthday again. Id. , testimony of Ruben Hinojosa, at pp. 47-50. A family friend, who testified that she had known petitioner for nine years, also made an emotional plea for mercy on petitioner's behalf. Id. , testimony of Elizabeth Casillas, at pp. 51-52.

142 See S.F. Trial, Volume 22 of 24, testimony of Robert Falcon, at pp. 56-57; testimony of Robert Cannon, at pp. 61-63.
On cross-examination, both of these detention officers admitted they were unaware that petitioner had been cited for possessing a razor blade, a violation of jail rules. Id. , testimony of Robert Falcon, at p. 58; testimony of Robert Canon, at p. 64.

During his state habeas corpus hearing, petitioner offered no testimony from the lone member of his defense team identified by co-counsel as solely responsible for the punishment phase of petitioner's trial.¹⁴³ Nor did petitioner offer any testimony establishing precisely what information regarding petitioner's background was actually in the possession of his trial counsel during the punishment phase of petitioner's trial.¹⁴⁴ Instead, petitioner presented testimony from one of petitioner's sisters establishing that (1) their early childhood was characterized by a home in which a lot of screaming and shouting occurred, (2) their father, who was in the military, was emotionally distant, played no role in their education, and dispensed corporal punishment in an abusive manner, repeatedly whipping petitioner with a belt, once breaking a golf club over petitioner's back, once firing a gun into the kitchen ceiling in anger at petitioner, and, on another occasion, binding and hanging petitioner from a tree for an extended period of time, (3) their mother threw dinner, boiling water, and a kitchen knife at petitioner and, on other occasions, whipped petitioner with a coat hanger, a broom, a belt, shoes, or whatever was handy, (4) petitioner suffered from depression, never really learned to communicate, rarely attended church, and had several unstable marital relationships, (5) their entire family was devastated by the death of petitioner's niece, (6) petitioner's uncle, who had spent most of his adult life in mental institutions, committed suicide, (7) their oldest brother, with whom petitioner was close, was shot and killed at a bar, (8) she fought often with petitioner from age seven to twelve, (9) petitioner was married and divorced four times, fathered six children, and engaged in numerous extramarital affairs, (10) on one occasion, their mother directed petitioner to beat another child with a board so as not to appear weak, and (11) petitioner graduated from neither grade school nor high school and nor earned a GED.¹⁴⁵

143 Petitioner's trial co-counsel, attorney Ed Camara, Jr. testified that he and co-counsel Vincent Callahan completely compartmentalized petitioner's trial with Camara solely responsible for the guilt-innocence phase of trial while Callahan took sole responsibility for preparing and presenting all evidence at the punishment phase of petitioner's trial. See S.F. State Habeas hearing, Volume 1 of 2, testimony of Ed Camara, Jr., at p. 164. For unknown reasons, petitioner did not call attorney Callahan to testify at the state habeas corpus hearing despite said counsel's presence and availability for that purpose.

144 Petitioner neither testified nor presented any other evidence showing what information, if any, he had given his trial counsel concerning petitioner's own background. Petitioner did present the state habeas trial court with testimony from a member of petitioner's family (1) regarding their parents' violence toward, and emotional isolation of, petitioner, as well as a history of depression, suicide, and mental illness on the part of several of their relatives and (2) establishing that she had not been questioned by petitioner's trial counsel regarding these matters. See note 145, infra. However, petitioner did not question his trial counsel nor any of the several other witnesses whom said counsel called to testify on petitioner's behalf at trial to ascertain whether any of them ever told petitioner's trial counsel about these same matters. Thus, petitioner offered no evidence establishing whether petitioner's trial counsel were aware or unaware of this information, all of which was apparently within petitioner's personal knowledge.

145 See S.F. State Habeas Hearing, Volume 1 of 2, testimony of Lisa Pecina, at pp. 99-108, 116, 118, 121-23, 129, 137.
Under cross-examination this same witness testified that (1) she was unaware of the petitioner were having been hospitalized for any mental illness or disease prior to his offense, (2) petitioner often fought with his wives, (3) nonetheless, petitioner was a good father to his children, and (4) while the petitioner told her during trial that he had an affair with Terry Wright, neither she nor anyone else she knew had ever seen the petitioner together with Wright. Id. , at pp. 122, 125, 128, 130.

The state habeas trial court found there was no evidence showing that petitioner's trial counsel were unaware of the foregoing evidence or otherwise establishing why petitioner's trial counsel failed to introduce the foregoing evidence at the punishment phase of petitioner's capital murder trial.¹⁴⁶ Therefore, the state habeas court concluded petitioner had failed to satisfy the first prong of Strickland. In addition, the state habeas court concluded that, in view of the potentially adverse impact on petitioner much of this evidence might have created had it been introduced at the punishment phase of petitioner's trial, the failure to present same did not "prejudice" petitioner within the meaning of Strickland. ¹⁴⁷

146 See State Habeas Transcript, at pp. 188-89.

147 Id. , at p. 190.

Having independently reviewed the record from petitioner's trial and state habeas corpus proceeding, this Court concludes that the state habeas court correctly, as well as reasonably, concluded petitioner failed to carry his burden of showing that his trial counsel's failure to present petitioner's evidence of family violence was objectively unreasonable. Petitioner wholly failed to show that his trial counsel was unaware of the evidence in question. Additionally, not only would the testimony of Lisa Pecina given during petitioner's state habeas corpus hearing have supported the prosecution's arguments at the punishment phase of trial that the petitioner posed a substantial risk of future dangerousness, it would have undermined the attempts by petitioner's trial counsel at the same phase of trial to show petitioner as a basically non-violent, loving, individual whose family members loved him and who was worthy of the jury's mercy.

Furthermore, given the obvious double-edged nature of the evidence in question, as well as the petitioner's long history of violent, criminal conduct, and the grisly circumstances of this particular crime, this Court concludes there is no reasonable probability that, but for the failure of petitioner's trial counsel to introduce such evidence, the outcome of the punishment phase of petitioner's trial would have been any different. A substantial portion of Lisa Pecina's testimony at petitioner's state habeas corpus hearing highlighted the negative aspects of testimony given by other witnesses during the punishment phase of petitioner's capital murder trial. More specifically, the thrust of her testimony at petitioner's state habeas corpus hearing emphasized the petitioner's history of marital instability and infidelities, lack of religious interest, and propensity for violence. There is no reasonable probability that this testimony would have swayed the jury to answer either of the capital sentencing special issues in a manner favorable to petitioner.

For the foregoing reasons, the Texas Court of Criminal Appeals' rejection on the merits of this aspect of petitioner's ineffective assistance claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and habeas corpus proceedings.

E. Constructive Denial of Counsel

Petitioner argues cryptically¹⁴⁸ that the alleged deficiencies in his trial counsel's outlined above amounted to a failure on the part of his trial counsel to subject the prosecution's case to meaningful adversarial testing and, therefore, entitle him to a presumption of prejudice as outlined by the Supreme Court's holding in United States v. Cronic. ¹⁴⁹

148 See Petition, at pp. 96-97.
The Texas Court of Criminal rejected this suggestion, concluding that all of petitioner's ineffective assistance claims had to be reviewed within the context of the dual prongs of Strickland. See State Habeas transcript, at pp. 174-78.

149 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

Petitioner's contentions are foreclosed by the Supreme Court's holding in Bell v. Cone. ¹⁵⁰ In Bell, the Supreme Court specifically held that the presumption of prejudice urged by petitioner herein applies only in three situations, none of which occurred during petitioner's trial.¹⁵¹ Petitioner's trial counsel vigorously cross-examined prosecution witnesses at both phase of trial, argued several different exculpatory theories at the guilt-innocence phase of trial, presented evidence supporting those exculpatory theories, and presented numerous family members and other witnesses at the punishment phase of trial in support of the contentions that the petitioner was not a violent person and would be a manageable prisoner if given a life sentence. Under such circumstances, the Texas Court of Criminal Appeals correctly ruled that petitioner was entitled to no presumption of prejudice under Cronic.

150 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

151 The Supreme Court emphasized in Bell the extremely narrow range of three situations in which the presumption of prejudice might arise that it has identified in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). More specifically, the Supreme Court held that the Cronic presumption of prejudice applies only when either (1) there was a complete denial of counsel, such as when the accused was denied the presence of counsel at a critical stage; (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; or (3) counsel was called upon to render assistance under circumstances where competent counsel very likely could not. See Bell v. Cone, 535 U.S. at 695-96, 122 S.Ct. at 1851; United States v. Cronic, 466 U.S. at 659-60, 104 S.Ct. at 2047. The Court's opinion in Bell held that routine complaints about the performance of defense counsel at various stages of a trial do not fall into the second of the foregoing categories of exceptional circumstances warranting a presumption of prejudice under Cronic. See Bell v. Cone, 535 U.S. at 696-98, 122 S.Ct. at 1851-52.
Like Bell's complaints about the performance of his trial counsel, petitioner's complaints herein do not fall into any of the three categories of cases identified by the Supreme Court in Bell and Cronic. Thus, petitioner was required to satisfy the dual prongs of Strickland in order to prevail on his Sixth Amendment claim herein. As explained above, petitioner cannot do so in this cause.

The Texas Court of Criminal Appeals' rejection on the merits of petitioner's constructive denial of claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial and habeas corpus proceedings.

F. Fundamental Error in G-I Phase Jury Charge

Petitioner argues that the state trial court committed fundamental error when it failed to instruct the jury at the guilt-innocence phase of petitioner's capital murder trial that it had to reach a unanimous verdict on one or more of the four specific theories of capital murder contained in the indictment against petitioner.¹⁵²

152 See Petition, at pp. 97-99.
The Texas Court of Criminal Appeals rejected this argument on the merits. See State Habeas transcript, at p. 191.

Petitioner's contention is foreclosed by the Supreme Court's holding in Schad v. Arizona discussed at length in Section II.D.3.e.(3)(c) above.¹⁵³ Furthermore, as correctly pointed out by respondent, this Court cannot grant petitioner relief on this claim without running afoul of the Supreme Court's non-retroactivity principle announced in Teague v. Lane. ¹⁵⁴

153 See notes 137-39 supra and accompanying text.

154 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

The Texas Court of Criminal Appeals' rejection on the merits of petitioner's complaints about the lack of a unanimity instruction in his guilt-innocence phase jury charge was fully consistent with the Supreme court's holding in Schad and, therefore, 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 trial and habeas corpus proceedings.

G. Vague "Aggravating" Factors

1. The Claim

Petitioner argues that several terms employed in the punishment phase jury charge at his capital murder trial were unconstitutionally vague.¹⁵⁵

155 See Petition, at pp. 99-101. More specifically, petitioner argues that the terms "probability, "criminal acts of violence," and "continuing threat to society" are not defined in his punishment phase jury instructions.
The Texas Court of Criminal Appeals rejected these arguments on the merits in the course of petitioner's state habeas corpus proceeding, specifically holding that petitioner had failed to properly preserve this complaint by not timely requesting definitions of the terms in question and further concluding that terms in question did not require explanatory definitions. See State Habeas Transcript, at pp. 191-92.

2. Procedural Default

Respondent correctly points out that petitioner procedurally defaulted on these complaints by failing to either request that the state trial court include definitions of the terms in question in the punishment phase jury instructions or object to the absence of such definitions from the punishment phase jury instructions.¹⁵⁶ Petitioner failed to request definitions of any of the terms in question, failed to object to the absence of those definitions from the punishment phase jury instructions, and, under the Texas contemporaneous objection rule, thereby waived any complaint about their absence. Neither of the recognized exceptions to the procedural default doctrine apply to these complaints.¹⁵⁷ Therefore, federal habeas corpus review of petitioner's complaints about the lack of definitions in his punishment phase jury charge is foreclosed.

156 Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). The Fifth Circuit has repeatedly held that a finding by a Texas appellate court that a criminal defendant failed to comply with applicable state procedural rules, such as the Texas contemporaneous objection rule, constitutes an independent and adequate basis for a federal habeas court's refusal to address the merits of a claim for federal habeas corpus relief. See Rogers v. Scott, 70 F.3d 340, 342 (5th Cir. 1995), cert. denied, 517 U.S. 1235 (1996), (holding that a federal habeas petitioner's failure to comply with the Texas contemporaneous objection rule also bars federal habeas review of a claim absent cause and prejudice or a fundamental miscarriage of justice); Nichols v. Scott, 69 F.3d 1255, 1278 n. 44 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996), (holding the same re the Texas contemporaneous objection rule); and Amos v. State, 61 F.3d 333, 338-45 (5th Cir. 1995), cert. denied, 516 U.S. 1005 (1995), (holding the same).

157 When the last state court to write a reasoned opinion rests its decision on a claim for relief on state procedural grounds, the petitioner can still obtain federal habeas review of that same claim only if he can show cause and actual prejudice for his procedural default or that a failure to address the merits of the federal claim would result in a miscarriage of justice. See Coleman v. Thompson, 501 U.S. at 750, 109 S.Ct. at 2565; Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043. Neither of these exceptions apply to petitioner's complaints regarding the absence of definitions from his punishment phase jury instructions. No external impediment prevented petitioner from requesting definitions of the terms in question. As explained hereinafter, because petitioner was not constitutionally entitled to definitions of the terms in question, the failure of his trial counsel to request same did not fall to the level of ineffective assistance. Likewise, petitioner has alleged no facts showing that he is factually innocent of the death penalty.

3. AEDPA Review

a. Clearly Established Federal Law

The Constitution requires that a valid capital sentencing scheme accomplish two separate, but related, purposes. In Tuilaepa v. California, ¹⁵⁸ the Supreme Court distinguished these two aspects of the capital decision-making process, i.e., the "eligibility decision" and the "selection process," and emphasized that, while both inquiries necessarily involve resolution of issues that bear a factual nexus to the crime, the selection process must also focus on the character and record of the defendant.¹⁵⁹ In Buchanan v. Angelone, ¹⁶⁰ the Supreme Court reaffirmed the vitality of the two-stage Tuilaepa analysis and rejected an argument that the Constitution mandates jury instructions at the selection stage of a capital sentencing proceeding regarding the nature of mitigating evidence or the manner in which the sentencing jury is to consider specific statutorily-defined mitigating factors, such as the defendant's age, lack of prior criminal activity, extreme emotional or mental disturbance, and significantly impaired capacity to appreciate the criminality of his conduct.¹⁶¹ The Supreme Court analyzed the first part of the Tuilaepa analysis, i.e., the eligibility decision, in Loving v. United States :

158 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).

159 See Tuilaepa v. California, 512 U.S. at 971-73, 114 S.Ct. at 2634-35. Tuilaepa is significant to the jurisprudence of Eighth Amendment claims because it represents the first time that the Supreme Court set forth a comprehensive analytical approach to Eighth Amendment claims. Equally significant is the fact that although there were several separate concurring opinions joining Justice Kennedy's opinion for the Court, six of the Justices appeared to agree on the propriety of the analytical framework set forth by Justice Kennedy. Tuilaepa holds that the Eighth Amendment address two different but related aspects of capital sentencing: the eligibility decision and the selection decision. 512 U.S. at 971, 114 S.Ct. at 2634. The Supreme Court's analysis of those aspects of capital sentencing provides the first clear insight into a comprehensive system for analyzing Eighth Amendment claims:

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

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

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

160 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998).

161 See Buchanan v. Angelone, 522 U.S. at 275-79, 118 S.Ct. at 761-63. The Supreme Court's opinion in Buchanan emphasizes that the issue of proportionality in capital sentencing is to be addressed in the eligibility phase of a capital sentencing proceeding, wherein that court has stressed the need for channeling and limiting the jury's discretion to ensure the death penalty is not arbitrarily or capriciously imposed. Id. , 522 U.S. at 275-78, 118 S.Ct. at 761-62.

The Eighth Amendment requires, among other things, that "a capital sentencing scheme must `genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'" Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer "find the existence of the aggravating circumstance in addition is no part of the constitutionally required narrowing process."¹⁶²

162 517 U.S. at 754, 116 S.Ct. at 1742 (citations omitted). The Supreme Court's opinion in Buchanan v. Angelone includes a further elaboration on the distinction between the narrowing function or eligibility decision and the selection phase of a capital sentencing proceeding. See Buchanan v. Angelone, 522 U.S. at 275-78, 118 S.Ct. at 761-62.

Under the Texas capital sentencing scheme, this constitutionally-mandated narrowing function is performed at the guilt-innocence phase of trial.¹⁶³ Thus, further narrowing is not required at the punishment phase of a Texas capital murder trial.¹⁶⁴ Petitioner's attempts to rely upon Supreme Court opinions addressing the duties of state courts in weighing states, such as Oklahoma and Mississippi, are of little vitality when addressing the very different Texas capital sentencing scheme. In point of fact, the Texas capital sentencing special issues do not perform the "narrowing function" required of the "eligibility decision" described in Tuilaepa. ¹⁶⁵ That function is performed in Texas at the guilt-innocence phase of trial by virtue of the Texas capital murder statute's narrowing of the types of murders that qualify as "capital murder" under Texas law.¹⁶⁶

163 See Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993), (holding that its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted five different classifications of murder for that purpose); Lowenfield v. Phelps, 484 U.S. 231, 243-47, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988); Jurek v. Texas, 428 U.S. 262, 268-75, 96 S.Ct. 2950, 2955-57, 49 L.Ed.2d 929 (1976); Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999); West v. Johnson, 92 F.3d 1385, 1406 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); and Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996), cert. denied, 519 U.S. 854 (1996).

164 See Jurek v. Texas, 428 U.S. at 268-75, 96 S.Ct. at 2955-57; Green v. Johnson, 160 F.3d at 1043; West v. Johnson, 92 F.3d at 1406; and Woods v. Johnson, 75 F.3d at 1034.

165 See Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996), cert. denied, 519 U.S. 854 (1996), (rejecting the same arguments made by petitioner herein and concluding that the Texas capital sentencing special issues do not constitute "aggravating factors" for purposes of Eighth Amendment jurisprudence).

166 See Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666; Lowenfield v. Phelps, 484 U.S. at 243-47, 108 S.Ct. at 554-55; Jurek v. Texas, 428 U.S. at 268-75, 96 S.Ct. at 2955-57.

b. Analysis

The fundamental analytical problem with petitioner's penultimate claim for federal habeas relief herein is that petitioner's arguments are premised on the erroneous notion that Texas is a "weighing" jurisdiction for purposes of imposing the death penalty.¹⁶⁷ From this faulty premise, petitioner launches on an ill-conceived diatribe against what he perceives to be unconstitutionally vague terms contained in the Texas capital sentencing special issues. Texas is most definitely not a "weighing" jurisdiction in terms of its imposition of the death penalty.¹⁶⁸

167 See Woods v. Johnson, 75 F.3d at 1033-34. For a thorough discussion of the distinction between "weighing" and "non-weighing" capital sentencing schemes, see Williams v. Cain, 125 F.3d 269, 281-84 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998). Basically, a "weighing" jurisdiction requires a sentencing jury to specifically find that one or more statutory aggravating factors are present and then to "weigh" those factors against all of the mitigating evidence and determine whether the balance favors the imposition of the death penalty.

168 See Hughes v. Johnson, 191 F.3d 607, 623 (5th Cir. 1999), cert. denied, 528 U.S. 1145 (2000), (holding that Texas is not a weighing state); and James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993), cert. denied, 509 U.S. 947 (1993), (recognizing that, unlike a weighing jurisdiction, Texas sentencing juries are not called upon to weigh statutory aggravating factors against mitigating evidence).

The second problem with petitioner's argument is that there is no clearly established Supreme Court case law declaring unconstitutionally vague any of the terms included in the current Texas capital sentencing special issues about which petitioner complains. On the contrary, on several occasions the Supreme Court has at least implicitly acknowledged the propriety, and common sense meaning, of the terms employed in the Texas capital sentencing scheme.¹⁶⁹ Furthermore, the Fifth Circuit has repeatedly rejected precisely the same arguments contained in petitioner's argument.¹⁷⁰

169 See Johnson v. Texas, 509 U.S. 350, 362-66, 113 S.Ct. 2658, 2666-68, 125 L.Ed.2d 290 (1993) (recognizing the broad scope of mitigating evidence which can be properly considered under the common sense meaning of the terms employed in the Texas capital sentencing special issues); Pulley v. Harris, 465 U.S. 37, 50 n. 10, 104 S.Ct. 871, 879 n. 10, 79 L.Ed.2d 29 (1984) (recognizing that the terms employed in the Texas capital sentencing special issues are not impermissibly vague and have a common sense core meaning); Jurek v. Texas, 428 U.S. 262, 294-95, 96 S.Ct. 2950, 2956-57, 49 L.Ed.2d 929 (1976) (recognizing that the terms employed in the Texas capital sentencing special issues have a broad common sense meaning).

170 See Hughes v. Johnson, 191 F.3d at 615 (holding that the term "probability," used in the Texas capital sentencing special issues, does not requires a definition); West v. Johnson, 92 F.3d 1385, 1406 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997) (rejecting the argument that the Texas capital sentencing special issues work as aggravating factors and, therefore, require detailed definitions of the terms employed therein); Woods v. Johnson, 75 F.3d at 1033-34 (rejecting the argument that the terms employed in the Texas capital sentencing special issues are "aggravating factors" and, absent definitions of same, are unconstitutionally vague); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993), cert. denied, 511 U.S. 1026 (1994), (holding that the terms "probability" and "society" have a common sense meaning); James v. Collins, 987 F.2d 1116, 120 (5th Cir. 1993), cert. denied, 509 U.S. 947 (1993), (holding that the terms "deliberately," "probability," "criminal acts of violence," and "continuing threat to society," have a common-sense core of meaning that criminal juries should be capable of understanding); Barnard v. Collins, 958 F.2d 634, 641 (5th Cir. 1992), cert. denied, 506 U.S. 1057 (1993), (holding that the terms "deliberateness," "probability," and "society" were not so vague as to deprive the jury of meaningful guidance in its deliberations); Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir. 1984), cert. denied, 471 U.S. 1030 (1985) (holding that the terms "probability" and "criminal acts of violence" each have a plain meaning).

c. Conclusion

Under such circumstances, the state habeas court's rejection on the merits of petitioner's complaints about the alleged vagueness contained in the Texas capital sentencing special issues 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 trial and state habeas corpus proceeding.

H. Attack on the Twelve:Ten Rule

1. The Claim

In his final substantive claim for federal habeas relief, petitioner argues that Texas law improperly prohibited the state trial court from instructing petitioner's jury of the effect of a single hold-out juror at the punishment phase of trial.¹⁷¹

171 See Petition, at pp. 101-02.
The Texas Court of criminal Appeals rejected this claim on the merits in the course of petitioner's state habeas corpus proceeding. See State Habeas Transcript, at p. 193.

2. AEDPA Review

The Supreme Court rejected precisely this claim when it held in Jones v. United States ¹⁷² that the Eighth Amendment does not require that a jury be instructed as the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death.¹⁷³ The Supreme Court has never held that a jury instruction of the type requested by petitioner herein was constitutionally mandated.

172 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

173 See Jones v. United States, 527 U.S. at 382, 119 S.Ct. at 2099.

Petitioner complains further that the state trial court's failure to advise the petitioner's jury regarding the effect of a hung jury violated the principle announced by the Supreme Court in Mills v. Maryland, ¹⁷⁴ because the state trial court, pursuant to a statutory prohibition, failed to inform the jury at the punishment phase of trial as to the effect of a single "no" vote on any of the special sentencing issues. In essence, petitioner complains that individual members of his jury were not furnished with a detailed explanation of exactly what constituted a "hung jury" at the punishment phase of a Texas capital murder trial. However, the Fifth Circuit has expressly rejected this same argument, noting that the law in Texas is completely different from that in Mills :

174 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

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

The Texas system allows an answer of "Yes" to a special issue if all jurors vote "Yes," and allows an answer of "No" if ten jurors vote "No." Mills does not require a certain number of jurors to agree to impose the death penalty.¹⁷⁵

175 Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995). Accord Alexander v. Johnson, 211 F.3d 895, 897 nn. 4-5 (5th Cir. 2000); and Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000).

In order to successfully challenge a state court's jury instructions at the punishment phase of a capital murder trial, a federal habeas petitioner must show more than that a capital sentencing scheme might have resulted in the jury being prevented from considering mitigating evidence; the petitioner must show a reasonable likelihood that such actually occurred.¹⁷⁶ In this case, petitioner's argument that the jurors at his trial might have concluded from the jury instructions at the punishment phase of trial that they were precluded from giving effect to their own opinions as to whether petitioner merited the death penalty asserts a construction of the punishment phase jury instructions at petitioner's trial that is neither reasonable nor likely to have actually occurred.¹⁷⁷

176 See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990); and Stewart v. Collins, 978 F.2d 199, 201 (5th Cir. (1992), cert. denied, 507 U.S. 1053 (1993).

177 See Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993): "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a `commonsense understanding of the instructions in the light of all that has taken place at trial.'" quoting Boyde v. California, 494 U.S. 370, 381, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).

Furthermore, the Fifth Circuit has rejected the exact same Fourteenth Amendment and Eighth Amendment claims urged by petitioner herein.¹⁷⁸ There is no "clearly established" constitutional right to a jury instruction advising a capital sentencing jury of the effect of a hung jury.¹⁷⁹

178 See Alexander v. Johnson, 211 F.3d at 897, (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas ten: twelve rule in the course of affirming this Court's rejection of claims identical to those raised by petitioner herein); Miller v. Johnson, 200 F.3d at 288-89; Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1996), cert. denied, 519 U.S. 854 (1996); and Jacobs v. Scott, 31 F.3d at 1328-29.

179 See United States v. Jones, 132 F.3d 232, 245 (5th Cir. 1998), affirmed, 527 U.S. 373, 119 S.Ct. 2090, 142 L.Ed.2d 31, 1999), (holding that no constitutional violation results from the refusal of a district court to inform the jury of the consequences of failing to reach a unanimous verdict).

Accordingly, the Texas Court of Criminal Appeals' rejection on the merits of petitioner's argument that he was entitled to a punishment phase jury instruction advising the jury of the effect of a hung jury 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 trial and state habeas corpus proceeding.

3. Teague Foreclosure

Furthermore, respondent correctly points out that this Court cannot grant petitioner relief on this claim without running afoul of the Supreme Court's non-retroactivity principle announced in Teague v. Lane. ¹⁸⁰

180 See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000); Davis v. Scott, 51 F.3d 457, 466-67 (5th Cir. 1995), cert. denied, 516 U.S. 992 (1995); Webb v. Collins, 2 F.3d 93, 95 (5th Cir. 1993); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993), cert. denied, 511 U.S. 1026 (1994).

IV. Request for Evidentiary Hearing

Petitioner requests that this Court permit petitioner an evidentiary hearing.¹⁸¹ However, the AEDPA limits the circumstances in which a habeas corpus petitioner may obtain an evidentiary hearing in federal court, imposing a significant burden on petitioners who fail to diligently develop the factual bases for their claims in state court.¹⁸² Under the AEDPA, if a petitioner failed to develop the factual basis of a claim in state court, he is entitled to a federal evidentiary hearing only if (1) the claim relies on either (a) a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence and (2) the facts underlying the claim are sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense.¹⁸³

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

V. Certificate of Appealability

The AEDPA converted the "certificate of probable cause" that was required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a Certificate of Appealability ("CoA").¹⁸⁴ The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA.¹⁸⁵ Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA.¹⁸⁶ Under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted.¹⁸⁷ In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone.¹⁸⁸

184 See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997), (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); and Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997), (holding that the standard for obtaining a CoA is the same as for a CPC).

185 See Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); and Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998).

186 See Miller-El v. Johnson, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); and 28 U.S.C § 2253(c)(2).

187 See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000), (holding the same); and Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997), (holding that the scope of appellate review of denial of habeas petition limited to issue on which CoA granted).

188 See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C. § 2253(c)(3).

A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right.¹⁸⁹ To make such a showing, the petitioner neednot show that he will prevail on the merits but, rather, demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further.¹⁹⁰ This Court is authorized to address the propriety of granting a CoA sua sponte. ¹⁹¹

189 See Tennard v. Dretke, ___ U.S. ___, ___, 124 S.Ct. 2562, 2569, ___ L.Ed.2d ___ (2004); Miller-El v. Johnson, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); and Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).

190 See Tennard v. Dretke, ___ U.S. at ___, 124 S.Ct. at 2569; Miller-El v. Johnson, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; and Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4.

191 Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong.¹⁹² In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling.¹⁹³

192

"[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."

Miller-El v. Johnson, 537 U.S. at 338, 123 S.Ct. at 1040,quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604. Accord, Tennard v. Dretke, ___ U.S. at ___, 124 S.Ct. at 2569.

193 Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604, (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).

Viewed in proper context, there is no basis for disagreement among jurists of reason with regard to this Court's disposition of any of petitioner's claims herein, at least some or which are barred by the non-retroactivity doctrine of Teague v. Lane. All of the evidence petitioner claimed the prosecution withheld from his trial counsel was either readily available to petitioner through the exercise of due diligence or of such meager evidentiary value as to fail to satisfy the materiality standard of Brady. Furthermore, far from being unaware of Rebecca Alfaro's prior inconsistent statements regarding petitioner's FILA tennis shoe's sole patterns, petitioner's trial counsel effectively employed Alfaro's prior inconsistent statements to impeach her at trial. More importantly, it was the testimony of FILA company representative John Kivlehan and the prosecution's tool mark expert, not Alfaro's testimony, which linked a pair of men's FILA "slant shot" tennis shoes to both crime scenes. There has never been any evidence suggesting the prosecution knowingly employed any false testimony to secure petitioner's conviction. The state habeas court's conclusion that all of petitioner's ineffective assistance claims failed to satisfy both prongs of Strickland is not subject to disagreement among reasonable jurists. Petitioner made little effort to allege, much less prove, prejudice in support of most of his claims of ineffective assistance. Finally, well-settled Supreme Court precedent directly forecloses each of petitioner's final four claims for relief herein.

Under such circumstances, petitioner is not entitled to a certificate of Appealability with regard to any of his claims for relief herein.

Accordingly, it is hereby ORDERED that:

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

2. All relief requested in petitioner's federal habeas corpus petition, filed July 16, 2001,¹⁹⁴ is DENIED.

194 See docket entry no. 8.

3. Petitioner is DENIED a Certificate of Appealability.

4. All other pending motions are DISMISSED AS MOOT.