LEAL v. DRETKE

Full title: HUMBERTO LEAL, JR., TDCJ No. 999162, Petitioner, v. DOUGLAS DRETKE…

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

Date published: Oct 20, 2004

Civil No. SA-99-CA-1301-RF (W.D. Tex. Oct. 20, 2004)

Opinion

Civil No. SA-99-CA-1301-RF.

October 20, 2004

MEMORANDUM OPINION AND ORDER DENYING RELIEF

W. ROYAL FURGESON, District Judge

Petitioner Humberto Leal, Jr. filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 seeking review of his July, 1995 Bexar County conviction for capital murder and his sentence of death.

I. Synopsis

As grounds for relief, petitioner argues that (1) his trial counsel rendered ineffective assistance by (a) failing to request the assistance of a DNA expert and adequately challenge the prosecution's DNA evidence; (b) failing to adequately cross-examine the prosecution's witness regarding blood stains found inside the vehicle petitioner was observed driving the night of the murder; (c) failing to request the assistance of a forensic odontologist and adequately challenge the prosecution's evidence regarding human bite marks found on the victim's body; (d) failing to request the assistance of a mental health expert and by presenting evidence at the punishment phase of trial indicating the petitioner likely possessed a sociopathic personality; (e) wasting three peremptory challenges during jury selection, failing to rehabilitate potentially favorable members of the jury venire, making ineffectual challenges for cause, failing to object to misstatements of the law made by the prosecution during voir dire, failing to make a Batson objection, and failing to exhaust petitioner's peremptory challenges and request additional strikes, thereby preserving alleged error for appellate review; (f) failing to present exculpatory testimony from petitioner's family members; (g) failing to investigate, develop, and present exculpatory physical evidence regarding evidence found on or near the victim's body that did not match the petitioner; (h) failing to investigate allegations of unadjudicated extraneous criminal conduct made by a prosecution witness at the punishment phase of trial; (i) failing to object to improper prosecutorial argument; (j) failing to request a jury instruction on the lesser-included offense of reckless homicide, i.e., involuntary manslaughter; and (k) under the totality of the circumstances, petitioner's trial counsel's performance was ineffective; (2) petitioner's trial counsel's performance was not merely deficient and prejudicial to petitioner but was so lacking in reasonableness as to constitute a constructive denial of counsel warranting a presumption of prejudice; (3) the "aggravating" factors in the second Texas capital sentencing special issue are unconstitutionally vague and do not adequately guide the jury's discretion at the punishment phase of trial; and (4) the state trial court erred in admitting evidence at the punishment phase of trial of unadjudicated offenses allegedly committed by petitioner.¹

1 See Petitioner's Initial Petition for Writ of Habeas Corpus, filed March 13, 2000, docket entry no. 6 (henceforth "Petition").

Respondent has filed an answer and motion for summary judgment in which he argues that (1) several aspects of petitioner's ineffective assistance claims are foreclosed by the non-retroactivity rule announced in Teague v. Lane ;² (2) based upon the information about his offense which petitioner related to his trial counsel and the results of said counsel's own independent review of the evidence, the decisions by petitioner's trial counsel not to challenge the DNA, blood splatter, and other physical evidence introduced at petitioner's trial by the prosecution were objectively reasonable, strategic or tactical decisions by petitioner's trial counsel; (3) the decision by petitioner's trial counsel to introduce mental health evidence at the punishment phase of petitioner's trial which contained both positive and negative aspects was likewise an objectively reasonable tactical decision; (4) petitioner was not prejudiced by (a) any alleged deficiency in the performance of his trial counsel during jury selection, (b) his trial counsel's failure to object to prosecutorial comments during closing argument, (c) the failure of his trial counsel to call petitioner's family members to testify, (d) the failure of petitioner's trial counsel to investigate the allegations made against petitioner by Melissa Ruiz, (e) said counsel's failure to request a jury instruction on involuntary manslaughter, or (f) any of said counsel's other strategic decisions; (5) petitioner was not constructively denied counsel; (6) the Texas capital sentencing special issues are not unconstitutionally vague because the constitutional narrowing function is performed in Texas at the guilt-innocence phase of a capital murder trial; and (7) evidence of unadjudicated extraneous criminal conduct is admissible at the punishment phase of a capital murder trial when it is material and relevant to the issues then before the jury.³

2 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989).

3 See Respondent's Original Answer and Motion for Summary Judgment, filed September 6, 2000, docket entry no. 17 (henceforth "Respondent's Motion for Summary Judgment").

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

II. Statement of the Case

A. Factual Background

1. The Offense and Its Aftermath

Late on the evening of May 20, 1994, and continuing well into the next morning, several persons attended an outdoor party held near the home of Juan Francisco "Paco" Delgado at the end of Vincent Street in San Antonio, Texas.⁴ Among the party goers was sixteen-year-old Adria Sauceda.⁵ At one point during the early morning hours of May 21, an apparently inebriated and only partially clad Adria was observed in the middle of a circle of males who were taking turns getting on top of her.⁶ When two women approached and attempted to lend her assistance, Adria refused their offers and told them to leave her alone.⁷ Adria appeared to be drunk and was unable to assist the women as they attempted to pull her pants back on her.⁸

4 At petitioner's trial, Mirasol Torres, then a teenager, testified that she and her friends attended both the party on Vincent Street and another party held several blocks away at another residence, traveling back and forth between the two locations several times during the night. See Statement of Facts from Petitioner's Trial (henceforth "S.F. Trial"), Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 21-23 and 26-28.
At the evidentiary hearing held in petitioner's state habeas corpus proceeding, petitioner's sister Nancy Leal testified that the party in question was held near the home of Juan Francisco "Paco" Delgado, near the end of Vincent Street. See Statement of Facts from Petitioner's State Habeas Corpus Proceeding (henceforth "S.F. State Habeas Proceeding"), Volume II of VII, testimony of Nancy Leal, at p. 64.

5 Mirasol Torres also testified that she recognized Adria Sauceda, whose nickname Mirasol said was "Freckles," because they had met before, shared a mutual friend, and had gone to high school together. See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 24-25.

6 Mirasol Torres testified that she observed Adria with her shirt on but her pants down to her knees in the middle of a circle of guys and it was apparent to her that something was going on because so also observed used condoms. See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 28-29.

7 Mirasol Torres testified further that she and her friend Vicki approached the scene and attempted to help Adria, who appeared "flimsy, like she was real loose, her arms and everything." See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at p. 29. Torres testified that she and Vicki attempted to pull Adria's pants back up and to get her upright but the intoxicated teenager was unable to assist them and told them to leave her alone. Id. , at pp. 29-30.

8 See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 29-31. Torres insisted that Adria did not appear to understand what was happening to her and did not appear to be in any condition to consent to what was being done to her. Id. , at p. 31. Torres also testified that the guys who were sexually assaulting Adria told Torres to shut up, go get a drink, and argued that Adria knew what she was doing. Id. , at pp. 31-32.

Around the same time, another party goer, Simon Ortega, became aware that Adria was in a crowd of people in the dark behind the bushes.⁹ Ortega was approached by a male, whom he did not recognize, who advised Ortega that Adria had passed out, was back behind the bushes, and had her clothes off.¹⁰ This same individual invited Ortega to have sex with her.¹¹ Ortega rudely declined the invitation and, a couple hours later, observed another male carry Adria out from behind the bushes and place her on the hood of Ortega's car.¹² At that time, Adria appeared to Ortega to be "real shaken up," "disoriented," "not all there," and "like if she was in shock."¹³ Ortega unsuccessfully attempted to communicate with Adria while she was lying on the hood of his car.¹⁴

9 See S.F. Trial, Volume XIII of XVIII, testimony of Simon Ortega, at pp. 150-51.

10 Id.

11 Id. , at p. 151.

12 Id. , at pp. 152 and 155-56.

13 Id. , at pp. 156 and 158.

14 Id. , at pp. 161-62 and 164-65. Ortega testified that he feared for the girl's safety because a number of the young males present appeared and spoke as if there were gang related. Id. , at p. 161.

Another male whom Ortega did not recognize then picked up Adria, carried her to a truck that was parked in the driveway of the home nearest to the party, and proceeded to "have his way with her."¹⁵ Ortega then directed the male who assaulted Adria in the truck to place her inside Ortega's vehicle so that he could take her home.¹⁶ At that point, petitioner approached and directed that Adria be placed inside his vehicle, instead.¹⁷ When Ortega protested, the petitioner informed Ortega that he knew the girl and her family, knew where she lived, and would take her home and explain everything to her family.¹⁸ Petitioner then drove away with Adria in his blue Mercedes.¹⁹

15 Id. , at pp. 165-66.

16 Id. , at p. 166.

17 Id. , at p. 166.

18 Id. , at pp. 167-68.

19 Id. , at p. 168. Ortega was not the only witness to these latter events. Juan Martinez, another party goer, observed a male hand Adria to petitioner, whom Martinez saw place her inside his Mercedes and then drive off. See S.F. Trial, Volume XIII of XVIII, testimony of Juan Martinez, at pp. 105-07. Both Ortega and Martinez testified that petitioner drove off in the Mercedes with Adria and no one else. Id. , testimony of Juan Martinez, at p. 105; testimony of Simon Ortega, at p. 168. Ortega also testified that, when she was placed in petitioner's vehicle, Adria was wearing her blouse, shorts, and no shoes. Id. , testimony of Simon Ortega, at p. 169.

Shortly thereafter, petitioner's brother Gualberto and petitioner's sister Nancy arrived at the party.²⁰ Gualberto was obviously excited and agitated, shouting, talking fast, and gesturing in an animated manner.²¹ According to Simon Ortega, petitioner's brother jumped out his car and yelled "What the hell happened?"²² Ortega testified that petitioner's brother continued yelling, informing those present that petitioner had arrived at his house "full of blood, saying he had killed a girl."²³ According to witnesses, shortly after petitioner's brother and sister departed the scene, two of the males who had remained at the party produced Adria's purse, began scattering the contents of same, and threw it up into a tree, where it became stuck in the branches.²⁴

20 See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 37-40.

21 See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 38-40. Simon Ortega described Gualberto as "shocked, hysterical," "excited," and "yelling." Id. , testimony of Simon Ortega, at pp. 171-72; and Volume XIV of XVIII, testimony of Simon Ortega, at pp. 248-49.

22 See S.F. Trial, Volume XIV of XVIII, testimony of Simon Ortega, at pp. 249-50.

23 Id. , testimony of Simon Ortega, at pp. 250-51. Ortega testified that petitioner's brother arrived at the party and began yelling about 25 minutes after petitioner had left the party with Adria. Id. , at p. 251.

24 See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 43-47. Torres identified the two men who had possession of Adria's purse as Ralph Guerrero and Mickey Sanchez and identified Guerrero as one of the men who had been in the circle around Adria earlier that night. Id. Simon Ortega gave a substantially similar account of the disposition of Adria's purse and its contents when he testified. Id. , Volume XIII of XVIII, testimony of Simon Ortega, at pp. 173-74.

About the same time, several individuals began searching for Adria's body.²⁵ One group of young men finally found Adria lying nude on her back on a dirt road and notified the police.²⁶

25 See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at p. 56. Torres identified the four of the persons who went to look for Adria's body as Juan Martinez, brothers Ray and Mario Aguilera, and a fourth person she could not identify. Id.
Juan Martinez testified that he was staying with a friend several blocks from the Vincent Street party when Ray and Mario Aguilera notified him of what petitioner's brother had said and they decided to join a fourth person whom Martinez knew only as "Alex" to search for Adria's body. Id. , Volume XIII of XVIII, testimony of Juan Martinez, at pp. 109-11.
Simon Ortega testified that, immediately after petitioner's brother and sister left the scene, several persons went looking unsuccessfully for Adria's body in the bushes where she had earlier been seen with several boys. Id. , testimony of Simon Ortega, at pp. 174-75. Ortega testified that he knew Adria was not in the bushes because he had seen her drive off with petitioner. Id.

26 See S.F. Trial, Volume XIII of XVIII, testimony of Juan Martinez, at pp. 111-13. Martinez testified that he later led police to the location of the body. Id. , at p. 118.

Photographs introduced into evidence at petitioner's trial documented the grisly scene that greeted police officers.²⁷ The autopsy performed on Adria's body revealed (1) she had extremely high levels of alcohol and cocaine in her blood,²⁸ (2) a stick with a screw in one end had been inserted into her vagina and was protruding from same,²⁹ (3) Adria suffered extensive bruising and numerous lacerations to her head with accompanying hemorrhage to the soft tissue of the face,³⁰ (4) the bridge of her nose was fractured and lacerated,³¹ (5) the right side of her neck exhibited an oval bruise suggestive of a bite mark,³² (6) her shoulders, back, and arms displayed numerous bruises and abrasions,³³ (7) an obvious bite mark with visible teeth impressions was present on the left side and back of her chest,³⁴ (8) the nail on Adria's left middle finger was almost completely torn off while the nail on her right middle finger was completely torn off and missing,³⁵ (9) Adria suffered massive hemorrhage throughout her scalp and diffuse bleeding in the cranial cavity, as well as bruising of the right front area of the brain, just under the part of the brain that rests on top the eyes, and small hemorrhages of the left side of the brain, resulting from a tremendous amount of force having been applied to her head,³⁶ (10) Adria had been beaten repeatedly about the face and head with a blunt object, possibly the bloody asphalt rock found near her body, although some of her injuries had definitely been caused by something other than that rock,³⁷ (11) bruising to the exterior of Adria's neck was consistent with manual strangulation,³⁸ and (12) Adria died from blunt trauma to her head.³⁹

27 More specifically, State Exhibit Nos. 5, 6, 9, 10, and 11 showed Adria's nude body and battered, bloodied, face. See S.F. Trial, Volume XVIII of XVIII. San Antonio Police Officer Eddie Williams testified that (1) he was directed to the scene by Juan Martinez and Mario Aguilera, (2) as he approached the clearing next to Leon Creek, he observed a young female, nude, body, lying face up with a huge asphalt rock toughly twice the size of her head lying partially on her left arm, (3) her face was bloodied and there was a gaping hole from one corner of her right eye extending to the center of her head from which blood was oozing, (4) a bloody, fourteen-to-sixteen inch stick was protruding from her vagina, and (5) another four-to-five inch piece of the stick was lying to the left of her skull. See S.F. Trial, Volume XIII of XVIII, testimony of Eddie Williams, at pp. 72-78.

28 Bexar County Chief Medical Examiner Dr. Vincent DiMaio testified at petitioner's trial that (1) he performed the autopsy on Adria Sauceda's body on May 21, 1994, (2) analysis of her blood revealed a blood alcohol level of .255, more than two and a half times the legal limit for driving, (3) further blood analysis reveal a cocaine level of .32 milligrams per liter of blood, significantly above the .1 level at which many people get high from that drug, (4) tests on Adria's blood also showed the presence of three metabolites of cocaine, and (5) while a trace of marijuana was detected in her urine, no significant amount was found in her blood. See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 597 and 602-04. Dr. DiMaio also opined that, based on the foregoing figures, he believed Adria was high on cocaine at the time of her death. Id. , at p. 604.
Despite the high levels of alcohol and cocaine in her blood, Dr. DiMaio opined that Adria would have been aware of what was happening to her. Id. , at p. 626.

29 Dr. DiMaio testified further that he determined the end of the skin containing the screw had been inserted inside Adria's vagina approximately five and one-eighth inch, causing bruising at the end of her vagina where the screw head impacted, as well as scratching and bruising the inside of the vagina. See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 605-06. Dr. DiMaio also testified that, based upon the nature of Adria's injuries it appeared to him that the stick had been inserted insider her while she was still alive. Id. , at pp. 606-07.

30 Dr. DiMaio testified that Adria suffered (1) hemorrhage of the soft tissue of her face, cheek, and the sides of her face, (2) swelling and abrasions on her face extending to her forehead, (3) a semi-circular bite mark to her left cheek, (4) abrasions and a laceration to her right eyebrow beginning in the middle of her right eyebrow and running downward and laterally, (5) separate lacerations to her left cheek just below her left eye, to the top of her chin, and to the under-surface of her chin, and (6) swelling and bruising to her lips. See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 607-10 and 613. Dr. DiMaio testified that the bruise to Adria's left cheek, shown in State Exhibit No. 95, was too poorly defined for him to definitely conclude it was bite but was consistent with a bite mark. Id., at p. 613. While summarizing Adria's external facial and head injuries, Dr. DiMaio made numerous references to State Exhibit Nos. 94-96, which appear in S.F. Trial, Volume XVIII of XVIII.

31 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at p. 611.

32 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 611-13. Dr. DiMaio testified that the oval bruise and scrapes to the right side of Adria's neck, shown in State's Exhibit No. 96, were suggestive of a bite mark. Id.

33 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 613-15. Dr. DiMaio testified that the vertical stripes and rectangular patterns of some of this bruising suggested Adria had been struck by something linear, possibly the stick that had been inserted inside her. Id.

34 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 615-16. Dr. DiMaio pointed to State Exhibit No. 97 to illustrate this bite mark. Id.

35 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 617-18. Dr. DiMaio used State Exhibit Nos. 98 and 99 to illustrate these injuries and expressed the opinion that both these injuries were defensive in nature. Id.

36 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 620-23. Dr. DiMaio opined that (1) a lot of force had been applied to the front of Adria's face, (2) her injuries were inconsistent with her having merely fallen and struck her face or head, (3) Adria has been struck repeatedly, a minimum of three times, in the face and shoulder, and (4) her head had been shaken or struck with sufficient force to cause bruising to the white matter or interior of her brain, not just to the surface of her brain. Id. Dr. DiMaio also opined that Adria's head injuries were consistent with her having received blows to her head while she was laying down and were suggestive of someone having stood over her prone form and delivered blows. Id. , at pp. 625-26. However, Dr. DiMaio also opined that some of the blood splatters he observed on Adria's lower chest and abdomen, as well as her thighs and calves, were consistent with her having bled while she was in an upright position. Id. , at pp. 623-24.

37 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 622, 626, and 628-29. Dr. DiMaio opined that the blows to Adria's head probably came in fairly rapid succession and that she did not immediately after the first blow, even though the first blow may have proven fatal. Id., at pp. 630-31. While Dr. DiMaio could not say whether Adria lost consciousness after the first blow struck her, he did acknowledge that one blow from the rock would have stunned her. Id. , at p. 632.

38 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 626-27.

39 See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at p. 627.

When contacted by the police later on the afternoon of May 21, 1994, petitioner voluntarily accompanied officers to the police station.⁴⁰ There, petitioner gave police two written statements. In his first statement, admitted into evidence at petitioner's trial as State Exhibit No. 48, petitioner stated that (1) he drove a girl, whom he said gave him her name as Evalin Salazar, away from the party toward her home, which she indicated was on Buda Street; (2) the girl began striking the steering wheel as he drove; (3) the girl told him to go a different direction; (4) he restrained her when she attempted to exit his vehicle while it was moving; (5) he drove her down Coconino Street and stopped at the end of that street, where she exited his vehicle; (6) he exited the vehicle and offered to take her home but she said no and ran into the bushes; and (7) after he waited ten-to-fifteen minutes for her to return and she did not, he drove home.⁴¹

40 See S.F. Trial, Volume XIV of XVIII, testimony of Vincent Tristan, at pp. 280-84.

41 Petitioner admitted that he gave this first statement to police when he testified at the punishment phase of his trial.See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 104-10. A copy of petitioner's first statement, in his own handwriting, appears in S.F. Trial, Volume XVIII of XVIII.

Shortly after petitioner gave police his first handwritten statement, outlined above, San Antonio Police Homicide Detective David Evans informed petitioner that petitioner's brother Gualberto had given police a written statement in which Gualberto stated that the petitioner had returned home that morning covered in blood and confessed to having killed a girl.⁴² At that point, petitioner indicated that he wished to make a second statement to police.⁴³ In his second handwritten statement, which was admitted into evidence at his trial as State Exhibit No. 49, petitioner stated that (1) the girl was fighting with him to get out of his car; (2) after she ran into the woods, he followed her and attempted to take her back to his car; (3) she hit him and scratched him in the face so he pushed her and she fell back to the ground; (4) she did not get up and he was unsuccessful in attempting to wake her; and (5) he saw bubbles coming out her nose, got scared, and went home.⁴⁴

42 See S.F. Trial, Volume XIV of XVIII, testimony of David Evans, at p. 351. Detective Evans also testified that Gualberto Leal gave a written statement to police. Id., at pp. 338-42.

43 See S.F. Trial, Volume XIV of XVIII, testimony of David Evans, at p. 351.

44 See S.F. Trial, Volume XIV of XVIII, testimony of David Evans, at pp. 352-55. During his testimony at the punishment phase of his trial, petitioner admitted that his first written statement was not completely accurate but insisted that his second written statement was accurate. See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 110-12. A copy of petitioner's second statement, also in his own handwriting, appears in S.F. Trial, Volume XVIII of XVIII. During his testimony at the punishment phase of his capital murder trial, petitioner insisted that (1) his confrontation with the girl had occurred on a sidewalk adjacent to a paved street; (2) he left the unconscious girl fully clothed at a location several blocks from the spot where her nude body was found; and (3) he did not bite the girl, did not bash her head in with a rock, and did not insert the stick into her vagina. See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 112-16.

While conducting a consent search of petitioner's residence the same day as the discovery of Adria Sauceda's body, two San Antonio Police Homicide Detectives discovered a beige blouse lying on the floor under a pile of laundry in the laundry room.⁴⁵ The blouse was later identified as Adria's.⁴⁶

45 See S.F. Trial, Volume XIV of XVIII, testimony of David Evans, at pp. 355-61; and testimony of Andy Hernandez, at pp. 411-17.

46 At petitioner's trial, Simon Ortega identified the blouse (introduced as State Exhibit No. 1) as the one he had seen Adria wearing at the party the night before her murder. See S.F. Trial, Volume XIV of XVIII, testimony of Simon Ortega, at pp. 199-201. Likewise, Adria's father identified State Exhibit No. 14 as a photograph showing Adria wearing the same beige blouse.See S.F. Trial, Volume XIII of XVIII, testimony of Rene Sauceda, at pp. 130-35. A Texas Department of Public Safety serologist testified that the blood stains found on the brown blouse were consistent with Adria Sauceda's blood type. See S.F. Trial, Volume XV of XVIII, testimony of Donna Stanley, at pp. 536-37.

2. Petitioner's Indictment

On August 17, 1994, a Bexar County grand jury indicted petitioner in case no. 94-CR-4696 on a charge of capital murder.⁴⁷

47 See Transcript, at pp. 3 and 30. More specifically, the grand jury charged petitioner in paragraph A of Count I with having intentionally caused the death of Adria Sauceda by striking her with a rock and other objects unknown to the grand jury while in the course of committing and attempting to commit the kidnaping of Adria Sauceda. In paragraph B of the same Count, the grand jury charged petitioner with having intentionally caused the death of Adria Sauceda by striking her with a rock and other objects unknown to the grand jury while in the course of committing and attempting to commit the aggravated sexual assault of Adria Sauceda.

3. Petitioner's Trial

a. Guilt-Innocence Phase

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

(1) The Prosecution's Evidence

The prosecution presented the testimony of Mirasol Torres. Simon Ortega, and Juan Martinez, outlined above, concerning the events that transpired at the party on Vincent Street that culminated in the discovery of Adria Sauceda's body.⁴⁸ A trio of law enforcement officers testified concerning the condition of Adria's body and the surrounding crime scene at the time of her discovery.⁴⁹

48 See S.F. Trial, Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 20-68; testimony of Juan Martinez, at pp. 99-126; testimony of Simon Ortega, at pp. 138-88; and Volume XIV of XVIII, testimony of Simon Ortega, at pp. 199-201 and 247-56.

49 More specifically, San Antonio Police Detective McCaskill testified that (1) he made a videotape recording of the crime scene, which was admitted into evidence as State Exhibit No. 19 and played up to the nine minute, three second mark before the jury; (2) he identified an indentation in the ground a short distance southwest from Adria's body (shown in State Exhibit No. 20) that appeared to match the shape of the large asphalt rock found lying on her left arm (shown in State Exhibit Nos. 6, 11, and 21); and (3) the indentation was wet and it appeared someone had picked up the rock from that point. See S.F. Trial, Volume XIV of XVIII, testimony of Robert McCaskill, at pp. 202-18.
San Antonio Police Officer John Scott Bowers testified that (1) he took photographs of the crime scene and Adria's body shortly after the discovery of same; (2) the indentation in the ground that appeared to match the shape of the large asphalt rock found lying partially on Adria's left arm (shown in State Exhibit Nos. 6, 11, and 21) was located approximately 18 feet from the spot where it was found on Adria's left arm; (3) Adria's missing finger nail was discovered approximately five feet, six inches from the head of her body; and (4) a small rock containing blood splatters (shown in State Exhibit No. 26) was observed next to Adria's right thigh. See S.F. Trial, Volume XIV of XVIII, testimony of John Scott Bowers, at pp. 256-69.
San Antonio Police Sergeant Jimmy Porter testified that (1) the large piece of asphalt he collected at the crime scene weighed between thirty and forty pounds; (2) the soil in the clearing where Adria's body was found was hard-packed dirt; and (3) State Exhibit No. 28 was the piece of asphalt he collected from the crime scene. See S.F. Trial, Volume XIV of XVIII, testimony of Jimmy Porter, at pp. 270-78.

In addition to hearing expert testimony concerning the results of the autopsy performed on Adria Sauceda's body, outlined above, the jury also heard testimony from forensic serologists and DNA experts which established that (1) DNA testing performed on blood stains found on Adria's brown blouse were consistent with Adria's DNA type and inconsistent with the DNA of both petitioner and petitioner's girlfriend⁵⁰ and (2) DNA testing of stains found on petitioner's underwear determined that the stains contained a mixture of body fluids (i.e., blood, semen, and vaginal secretions) from different individuals and that at least some of the genetic material found in those mixtures could not have come from either petitioner or petitioner's girlfriend Elvira Briones but could have come from Adria Sauceda.⁵¹

50 See S.F. Trial, Volume XV of XVIII, testimony of Donna Stanley, at pp. 535-37; and Volume XVI of XVIII, testimony of Meghan Clement, at pp. 665-66. Meghan Clement testified that her DQ Alpha testing on two of the three blood stains from the brown blouse could have come from Adria Sauceda but definitely didnot come from either petitioner or petitioner's girlfriend Elvira Briones. See S.F. Trial, Volume XVI of XVIII, testimony of Meghan Clement, at pp. 665-66. Ms. Clement was certain the blood stains on the blouse had not come from either petitioner or petitioner's girlfriend. Id., Volume XVI of XVIII, testimony of Meghan Clement, at pp. 667-68.

51 See S.F. Trial, Volume XVI of XVIII, testimony of Meghan Clement, at pp. 669-82 and 697. More specifically, Ms. Clement testified that there were genetic markers in the mixed samples taken from petitioner's underwear that could have come Adra Sauceda's blood but which could not come from either petitioner or Elvira Briones. Id.

San Antonio Police evidence technician Warren Titus testified that his Luminol tests for the presence of blood performed on the Blue Mercedes in which petitioner admitted he drove Adria Sauceda from the party on Vincent Street were positive (1) on the exterior of that vehicle and indicated that the exterior had been wiped in an effort to clean same, (2) on the interior passenger door panel and indicative of wipe marks in a downward direction from the door handle, and (3) on the passenger seat and consistent with a person bleeding while sitting in that seat.⁵² Based on the foregoing, officer Titus opined that blood could have been wiped from each of these surfaces.⁵³

52 See S.F. Trial, Volume XIV of XVIII, testimony of Warren K. Titus, at pp. 287-303.

53 Id., at p. 303.

A San Antonio Police Detective testified that he took photographs of petitioner's face and chest on May 21, 1994 after petitioner was arrested.⁵⁴

54 See S.F. Trial, Volume XIV of XVIII, testimony of Crisoforo Vieyra, at pp. 388-95. Officer Vieyra identified State Exhibit Nos. 58-62 as the photographs of petitioner which he took at the jail. Those photographs of petitioner's face, chest, and arm appear in S.F. trial, Volume XVIII of XVIII, at pp. 38-40.

A trace evidence analyst testified that both pubic and head hair samples found on the large asphalt rock found lying on Adria Sauceda's left arm were microscopically similar to Adria's hair.⁵⁵

55 See S.F. Trial, Volume XV of XVII, testimony of Tim Fallon, at pp. 583-90. More specifically, Mr. Fallon testified that (1) one pubic hair found on the rock had the same appearance as Adria's public hair, (2) three head hairs found on the rock were microscopically similar to Adria's head hair, and (3) two other hairs found on the rock were determined to have come from an animal and another human, respectively. Id.

A dental professor expressed opinions that (1) petitioner's teeth matched the bite marks found on Adria's body, (2) only a powerful and prolonged bite would have been sufficient to cause the bite marks on Adria's body, and (3) slippage in one of the marks suggested that either Adria had moved while she was being bitten or the person biting her had made more than one attempt to bite her in the same location.⁵⁶

56 See S.F. Trial, Volume XVI of XVIII, testimony of Marden E. Alder, at pp. 722 and 724-29. In addition, Dr. Alder testified that petitioner's teeth were unique in several regard, including an obvious space between the lower right canine and lower right premolar and that the bite mark on Adria's neck was consistent with the arch shape of petitioner's teeth. Id., at pp. 714-15, 719. Dr. Alder also noted that Adria's skin was broken at the sits of the bite marks on her neck and the side of her chest. Id., at p. 720. The bite marks he observed on Adria's body were deep and would have required prolonged and intense force to create same. Id., at p. 728.

(2) The Lone Defense Witness

The defense called only one witness, petitioner's girlfriend Elvira Briones, who testified that she and petitioner engaged in sexual intercourse the night of the party and that she did not notice Adria Sauceda with any men at the party.⁵⁷

57 See S.F. Trial, Volume XVI of XVIII, testimony of Elvira Briones, at pp. 764-69.

(3) The Verdict

After deliberating approximately ninety minutes on July 10, 1995, the jury returned its verdict of guilty.⁵⁸

58 See S.F. Trial, Volume XVI of XVIII, at pp. 835-38; and Transcript, at pp. 136-50. The records from petitioner's state court trial indicate that the jury retired to deliberate at approximately 3:10 p.m., on July 10, 1995 and sent the trial judge a note at approximately 4:48 p.m., that same date indicating they had reached a verdict.

b. Punishment Phase of Trial

The punishment phase of petitioner's capital murder trial began and ended the following day, July 11, 1995.

(1) The Prosecution's Evidence

The prosecution presented the testimony of (1) then 16-year-old Melissa Ruiz, who testified about an incident in May of 1994, about two weeks before the murder of Adria Sauceda, in which petitioner sexually assaulted and bit Ruiz on the neck;⁵⁹ (2) the San Antonio Police Officer who investigated Ruiz's report of petitioner's assault upon her and photographed the bite marks and bruises on Ruiz's body;⁶⁰ (3) the physician who examined Ruiz approximately 66 hours after the assault;⁶¹ and (4) Ruiz's older sister Iza Marie, who stated that petitioner had called her repeatedly at her place of employment in the weeks following his assault on Melissa, threatening to have someone kill her if she testified against petitioner.⁶² The prosecution also introduced testimony from law enforcement and school officials establishing that petitioner's reputation for being peaceful and law abiding was bad and that petitioner had a history of intimidating and bullying his fellow students and teachers.⁶³

59 See S.F. Trial, Volume XVII of XVIII, testimony of Melissa Ruiz, at pp. 62-73. More specifically, Ruiz testified that (1) she went to a party on Vincent Street where she saw petitioner, (2) petitioner took her back to his house down the street, where he undressed her and attempted to have sexual relations with her, (3) she experienced pain both while petitioner was attempted to penetrate her and while he was biting her neck but she did not say anything or scream because she was afraid petitioner would hurt her if she tried to stop him, (4) after he finished, petitioner directed Ruiz to go into the bathroom and wash herself, (5) petitioner took her back to the party and left her there, (6) she did not go right home but spent that night at a friend's house before she called her sister and told her what had happened, and (7) the bite mark remained on her neck for about a week. Id.

60 See S.F. Trial, Volume XVII of XVIII, testimony of Angela Rux, at pp. 23-31. The bite marks on Ruiz's body are shown in State Exhibit Nos. 106 and 107 admitted into evidence at petitioner's trial and included in S.F. Trial, Volume XVIII of XVIII, at p. 110.

61 See S.F. Trial, Volume XVII of XVIII, testimony of Lizette Gomez, at 31-39. Dr. Gomez observed bruising and redness to Ruiz's vaginal region, two lacerations to Ruiz's hymen, and minimal bleeding during her pelvic examination of Ruiz. Id.

62 See S.F. Trial, Volume XVII of XVIII testimony of Iza Marie Ruiz, at pp. 40-53. Iza Marie Ruiz testified that she had known petitioner from the time they were both middle school children and she believed petitioner was fully capable of making good on his threats to have her killed if she testified against him. Id. , at pp. 46-47 and 51. Iza Marie also testified that (1) Melissa disappeared for several days, (2) her family did not know where Melissa was, and (3) when she went to pick up Melissa, it was apparent to Iza Marie that her younger sister was crying and scared and had obviously been bitten. Id. , at pp. 41-43. Iza Marie also testified that, during the days after the assault on Melissa, when Melissa was missing and her family greatly concerned about her, Iza Marie spoke with petitioner, who claimed to have no knowledge where Melissa was. Id. , at p. 44.

63 More specifically, retired teacher Hoyt Garner testified about an incident in which petitioner had defied and cursed out Garner and expressed the opinion that petitioner had no respect for authority and would never change. See S.F. Trial, Volume XVII of XVIII testimony of Hoyt Garner, at pp. 4-11. San Antonio Police Officer Wayne D. Harwell, Sr. testified that petitioner's reputation for being peaceful and law-abiding was bad. Id. , testimony of Wayne D. Harwell, Sr., at pp. 12-17. Arnold Trevino, Assistant Principal at South San High School, testified that petitioner had intimidated both students and teachers when petitioner was a student at that school. Id. , testimony of Arnold Trevino, at pp. 54-59.

(2) The Defense's Evidence

The defense offered the testimony of psychiatrist Raymond Potterf, who testified on direct examination that (1) petitioner suffered from alcohol dependence and pathological intoxication, (2) the latter condition occurs when a person who ingests alcohol experiences a sudden change in mental status and becomes very aggressive, and (3) there is no cure for petitioner's condition.⁶⁴ On cross-examination, Dr. Potterf admitted that it was possible petitioner's tendency toward violence predated petitioner's problems with alcohol.⁶⁵ On re-direct, petitioner's trial counsel elicited testimony from Dr. Potterf suggesting that petitioner had been beaten as a child and that such children tend to develop anti-social personalities.⁶⁶ On re-cross-examination, Dr. Potterf admitted that persons with anti-social personalities tend to ignore societal norms and can be dangerous.⁶⁷

64 See S.F. Trial, Volume XVII of XVIII, testimony of Dr. Raymond Potterf, at pp. 77-79.

65 Id. , at pp. 80-82.

66 Id. , at pp. 82-83.

67 Id. , at pp. 83-84.

The defense also called (1) one of petitioner's former high school teachers, who testified she had counseled petitioner when he was her student, petitioner's father had mistreated petitioner and one of petitioner's brothers, and she had never felt afraid of petitioner;⁶⁸ (2) a 14-year-old friend of petitioner, who testified about an incident in which petitioner had saved his life by shoving him out of the way of gunfire;⁶⁹ (3) petitioner's 14-year-old brother Carlos, who testified that Melissa Ruiz had sent petitioner love letters a few years before petitioner's assault on her;⁷⁰ and (4) petitioner's mother, who testified petitioner began drinking until he passed out about a year and a half ago and requested the jury to be merciful and have pity on petitioner.⁷¹

68 See S.F. Trial, Volume XVII of XVIII, testimony of Mary Matamaros, at pp. 85-89.

69 See S.F. Trial, Volume XVII of XVIII, testimony of Edward Anthony Carter, at pp. 122-25.

70 See S.F. Trial, Volume XVII of XVIII, testimony of Carlos Leal, at pp. 128-30.

71 See S.F. Trial, Volume XVII of XVIII, testimony of Maria Francesca Leal, at pp. 131-35.

Petitioner testified that (1) although he did not get along with his father, his father had never beaten or hurt him;⁷² (2) he was sorry the girl had died but felt her family, rather than the jury, should decide his fate;⁷³ (3) he had been a good inmate while awaiting trial, he had no criminal record other than this one offense, and he was not a violent person;⁷⁴ (4) he was very drunk on the date in question and, while what he did was wrong, he had not done what he was accused of having done;⁷⁵ (5) he would probably keep the peace if sent to prison but would act to defend himself if he felt threatened;⁷⁶ and (6) he had no gang affiliation.⁷⁷ On cross-examination, petitioner (1) insisted that he was innocent despite the jury's verdict of guilty;⁷⁸ (2) admitted that Adria scratched him, he pushed Adria, he felt something wet on the back of her head, he shook Adria in an unsuccessful attempt to wake her, and he fled in fear when he saw bubbles coming out of her nose;⁷⁹ (3) denied that he wiped blood from the Mercedes, did anything more to Adria than push her down, took her clothes off, beat her with a rock, bit her, or shoved a stick inside her;⁸⁰ (4) suggested that his father found Adria's blouse in the street and brought it inside the house;⁸¹ (5) stated that, as he was taking Adria from the party, he turned at the end of Vincent Street in the opposite direction from the way Adria directed him to go and, when Adria attempted to get out of the his car, he initially refused to allow her to do so and refused to stop so she could do so;⁸² (6) stated that Adria got out his vehicle and, when he attempted to take her back to his car, she began hitting, pushing, and scratching his face;⁸³ (7) stated that he left Adria's body fully clothed, along the side of a street, three or four streets over from the location where he nude body was found;⁸⁴ (8) denied that he bit her neck or chest;⁸⁵ and (9) admitted that any person who could bash in Adria's head, leave her with a stick inside her, and take a piece of her clothing as a trophy was a violent and dangerous person.⁸⁶ On re-direct and re-cross-examination, petitioner denied that he raped or bit Melissa Ruiz.⁸⁷

72 See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at p. 91.

73 Id. , at pp. 92-94.

74 Id. , at p. 94.

75 Id. , at p. 95.

76 Id. , at p. 95.

77 Id. , at p. 96.

78 Id. , at pp. 96-97 and 103. Petitioner even stated that he hoped to obtain a reversal of his conviction on appeal. Id. , at pp. 96-97.

79 Id. , at pp. 101-03.

80 Id. , at pp. 98, 103, 112, and 115-16. Petitioner suggested that his father used the Mercedes to go hunting and that might explain why traces of blood were found inside the vehicle. Id. , at p. 100.

81 Id. , at p. 101.

82 Id. , at pp. 105-08.

83 Id. , at pp. 108-12.

84 Id. , at p. 112-14.

85 Id. , at p. 115. At one point during his cross-examination, petitioner laughed at the prosecutor and accused her of calling him a dog, to which the prosecutor replied "You got that right." Id. , at p. 114.

86 Id. , at pp. 116-17. More specifically, petitioner testified that he believed whomever had done these things to Adria's body deserved to die. Id. , at p. 116.

87 Id. , at pp. 117-20.

(3) The Verdict

After deliberating less than two hours on July 11, 1995, the jury returned its verdict at the punishment phase of petitioner's capital murder trial, finding that (1) there was a probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) there was insufficient mitigating evidence to justify a life sentence rather than a sentence of death.⁸⁸

88 See S.F. Trial, Volume XVII of XVIII, at pp. 166-73; and Transcript, at pp. 159-60 and 162-63. The records from petitioner's capital murder trial indicate that the jury retired to deliberate at the punishment phase of trial at approximately 2:33 p.m., on July 11, 1995 and sent the trial judge a note indicating it had reached a verdict at approximately 4:23 p.m., that same date. See Transcript, at pp. 159-63.

4. Direct Appeal

Petitioner appealed his conviction and sentence.⁸⁹ In an unpublished opinion issued February 4, 1998, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence.⁹⁰ The United States Supreme Court denied petitioner's petition for writ of certiorari on February 22, 1999.⁹¹

89 In his 130-page appellant's brief, filed by attorney John Wilson Rowland, petitioner asserted 43 points of error. In points one through six and twenty-eight through thirty-one, petitioner raised claims of legally and factually insufficient evidence to support the jury's verdicts at both phases of his capital murder trial. In his seventh and eighth points, petitioner attacked the trial court's admission of Gualberto Leal's previous statements at the urging of the prosecution to impeach that prosecution witness. In his ninth and tenth points, petitioner attacked the admission of allegedly hearsay testimony by Simon Ortega and Mirasol Torres. In his eleventh through twenty-second points, petitioner challenged the admission of various photographs of the crime scene, the victim, and petitioner's injuries. In his twenty-third through twenty-seventh points, petitioner complained about the admission of purported victim impact evidence in the form of photographs of the victim and testimony about her background. Petitioner's thirty-second through thirty-fifth points challenged the punishment phase jury instructions, specifically arguing that the term "mitigating evidence" was too narrowly defined and that the jury was not informed of the effect of a hung jury. Petitioner's thirty sixth through thirty-eighth and fortieth points challenged the trial court's denial of his motions to set aside the verdict and for new trial. Petitioner's thirty-ninth point challenged the admission of the testimony of Melissa Ruiz regarding petitioner's unadjudicated extraneous criminal acts. Petitioner's forty-first point challenged the death penalty as a violation of the Eighth Amendment. In his final two points, petitioner argued that the Texas death penalty scheme affords no meaningful appellate review to the jury's verdict as to the second capital sentencing special issue and fails to properly assign the burden of proof regarding mitigating evidence in that same special issue.

90 See Leal v. State, Cause No. 72,210 (Tex.Crim.App. February 4, 1998). In the course of its unpublished opinion, the Texas Court of criminal Appeals held, in pertinent part, that (1) there was both legally and factually sufficient evidence to support the jury's verdicts at both phases of trial; (2) because the defendant was alerted to the evidence regarding the instrument of death, any variance between the indictment's language and the evidence at trial did not warrant reversal of petitioner's conviction; (3) the trial court did not abuse its discretion in admitting the grisly photographs of the crime scene and autopsy; (4) the trial court did not abuse its discretion in admitting hearsay statements of petitioner's brother; (5) there was no victim impact evidence admitted at trial; (6) petitioner was not entitled an instruction informing the jury of the effect of a hung jury; (7) the Texas capital sentencing special issues are not unconstitutionally vague; (8) the admission of evidence of unadjudicated extraneous offenses at the punishment phase of trial did not violate petitioner's rights; and (9) capital punishment violates neither the Eighth Amendment nor the United Nations Charter. A copy of the Texas Court of Criminal Appeals' unpublished opinion in petitioner's direct appeal appears as Exhibit B to petitioner's original petition.

91 See Leal v. Texas, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999).

5. State Habeas Corpus Proceeding

On September 17, 1997, petitioner filed an application for state habeas corpus relief.⁹² On September 25, 1997, the State filed a response to petitioner's state habeas corpus application urging that an evidentiary hearing be held to resolve petitioner's ineffective assistance claims.⁹³

92 Two copies of petitioner's state habeas corpus application appear among the state court records relating to petitioner's state habeas corpus proceeding. The first copy appears at pages 1-139 of the Transcript of pleadings, motions, and other documents filed in that proceeding with the Texas Court of Criminal Appeals on May 15, 1998 (henceforth "State Habeas 5-15-98 Transcript"). He second copy of petitioner's state habeas corpus application appears at pages 1-138 of Volume 1 of 2 of the Transcript of pleadings, motions, and other documents filed in that proceeding with the Texas Court of Criminal Appeals on May 21, 1999 (henceforth "State Habeas 5-21-99 Transcript"). As grounds for relief, petitioner's state habeas application asserted (1) more than twenty instances of ineffective assistance by his trial counsel; (2) constructive denial of counsel; (3) alleged violations of the Vienna Convention arising from the admission of petitioner's two written statements; (4) the trial court erred in directing the jury to disregard the impact of parole laws on petitioner's sentence; (5) the Texas capital sentencing special issues were unconstitutionally vague; and (6) numerous claims that mirrored many of his points of error on direct appeal.

93 See State Habeas 5-15-98 Transcript, at pp. 188-92; and State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 189-93.

On October 19 through 21 and November 23, 1998, the state trial court held an evidentiary hearing in petitioner's state habeas corpus proceeding.⁹⁴ On April 23, 1999, the state trial court issued an Order containing its findings of fact, conclusions, of law, and recommendation that petitioner's state habeas corpus application be denied.⁹⁵ On October 20, 1999, the Texas Court of Criminal Appeals denied petitioner's state habeas corpus application in an unpublished written Order based on the findings made by the state trial court.⁹⁶

94 The four volumes of the statement of facts from the evidentiary hearing held October 19-21 and November 23, 1998 in petitioner's state habeas corpus proceeding appear as Volumes II of VII through V of VII in the statement of facts from petitioner's state habeas corpus proceeding (henceforth "S.F. State Habeas Proceeding").

95 See State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 201-86. Among its findings of fact, the state trial court determined that (1) petitioner gave his trial counsel several different versions of how petitioner killed Adria Sauceda, one of which corresponded to petitioner's second written statement to the police; (2) petitioner never specifically admitted that he had intentionally killed Adria Sauceda but did admit to his trial counsel that he was alone with Adria when she died; (3) based on the information related by petitioner, his trial counsel believed there was a plausible explanation for the presence of Adria's blood on petitioner's underwear; (4) petitioner's trial counsel consulted with a dentist whose opinion regarding the bite mark evidence corresponded with that of the prosecution's expert; (5) petitioner's trial counsel did not consult with Dr. Potterf before putting him on the stand but did review Dr. Potterf's written report and called him to testify for the purpose of showing that, due to petitioner's intoxication, petitioner lacked the specific intent to kill; (6) petitioner's trial counsel was aware of the double-edged nature of Dr. Potterf's testimony regarding petitioner's anti-social personality; (7) the opinions expressed by petitioner's DNA expert during petitioner's state habeas corpus hearing were not inconsistent with the opinions expressed by the prosecution's DNA experts at trial; (8) at petitioner's state habeas corpus hearing, Dr. Alder again testified that, within a reasonable medical certainty, petitioner's teeth caused the bite mark on Adria's chest; (9) petitioner presented no evidence showing how a forensic pathologist appointed to assist the defense would have helped petitioner at trial; (10) none of petitioner's family ever told petitioner's lead trial counsel about seeing others at the party with blood on their clothing or about a videotape recording of the crime scene; and (11) petitioner was not in custody at the time he gave police his two written statements. Id.
In its conclusions of law, the state trial court determined that (1) the decisions by petitioner's trial counsel to call Dr. Potterf to testify and not to challenge prosecution evidence regarding blood stains on the interior of the Leal vehicle, bite marks, and DNA and blood test results were legitimate trial strategies and did not prejudice petitioner; (2) petitioner was not prejudiced by any alleged errors committed by his trial counsel during jury selection; (3) petitioner's complaints about his trial counsel's failure to call petitioner's family members to testify at trial did not satisfy the prejudice prong of Strickland ; (4) there was no evidence that petitioner's conduct in causing Adria Sauceda's death was merely reckless; (5) petitioner's statements were not admitted in violation of the Vienna Convention; (6) petitioner procedurally defaulted regarding his complaints about the trial court's jury instructions regarding parole eligibility and the effect of a hung jury; and (7) several of petitioner's remaining complaints were disposed of in the course of his direct appeal and not properly the subject of a state habeas corpus proceeding. Id.

96 See Ex parte Humberto Leal, Jr., App. No. 41, 743-01 (Tex.Crim.App. October 20, 1999).

B. Procedural History

On March 13, 2000, petitioner filed his federal habeas corpus petition in this Court, asserting as grounds for relief the arguments outlined in Section I above.⁹⁷ On September 6, 2000, respondent filed his answer and motion for summary judgment asserting those defenses also outlined above in Section I.⁹⁸

97 See docket entry no. 6.

98 See docket entry no. 17.

III. Analysis and Authorities

A. The AEDPA Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), insofar as the state courts adjudicated petitioner's claims herein on the merits, this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA.⁹⁹

99 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.¹⁰⁰

100 See Wiggins v. Smith, ___ U.S. ___, ___, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003); Price v. Vincent, ___ U.S. ___, ___, 123 S.Ct. 1848, 1852-53, 155 L.Ed.2d 877 (2003); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); and 28 U.S.C. § 2254(d).

The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings.¹⁰¹ 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.¹⁰² 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.¹⁰³ A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable."¹⁰⁴ 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.¹⁰⁵

101 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.

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

103 See Wiggins v. Smith, ___ 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 existing legal principle into a new area. See Williams v. Taylor, 529 U.S. at 408-09, 120 S.Ct. at 1521.

104 See Wiggins v. Smith, ___ 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.

105 See Wiggins v. Smith, ___ U.S. at ___, 123 S.Ct. at 2535; Price v. Vincent, ___ U.S. at ___, 123 S.Ct. at 1853, ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner."); Woodford v. Visciotti, 537 U.S. at 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.¹⁰⁶

106 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).

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

B. Ineffective Assistance Claims

1. Overview of the Claims

In his first claim for relief, petitioner asserts a wide variety of complaints about the performance of his trial counsel. More specifically, petitioner argues that his trial counsel rendered ineffective assistance by numerous acts and omissions relating to the prosecution's DNA evidence, blood stain evidence, and bite mark evidence. Additionally, petitioner takes exception to his trial counsel's handling of Dr. Potterf's testimony and said counsel's approach to mental health evidence generally. Petitioner complains further that his trial counsel engaged in numerous ill-advised decisions during jury selection, including failing to preserve alleged trial court errors during that phase of trial. Petitioner also argues that his trial counsel failed to (1) call petitioner's family members and other witnesses who could have offered exculpatory testimony, (2) investigate and present exculpatory physical evidence, (3) investigate Melissa Ruiz's allegations, (4) object to improper prosecutorial jury argument, and (5) request a jury instruction on reckless homicide. In conclusion, petitioner argues that, under the totality of the circumstances, petitioner's trial counsel rendered ineffective assistance.

2. "Clearly Established" Supreme Court Precedent

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

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

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

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

108 Wiggins v. Smith, ___ U.S. ___, ___, 123 S.Ct. 2527, 2535, 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.

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

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

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

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

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

114 See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997), citing Garland v. 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).

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

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

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

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

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

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

120 Woodford v. Visciotti, 537 U.S. 19, 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.

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

3. AEDPA Review

a. Complaints About DNA Evidence

(1) Petitioner's Specific Contentions

Petitioner voices numerous complaints regarding his trial counsel's handling of the prosecution's DNA evidence.¹²² More specifically, petitioner argues his trial counsel should have (1) requested the appointment of a DNA expert to assist the defense pursuant to the Supreme Court holding in Ake v. Oklahoma, ¹²³ (2) interviewed the prosecution's DNA experts prior to trial, and (3) conducted voir dire of the prosecution's DNA experts outside the presence of the jury. Petitioner argues further that his trial counsel (4) failed to adequately cross-examine the prosecution's DNA experts and (5) erroneously admitted that the victim's blood was found on petitioner's underwear.

122 See Petition, at pp. 13-36.

123 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

(2) Factual Findings Supported by the Record

In the course of petitioner's state habeas corpus proceeding, the state trial judge specifically found that (1) petitioner gave his trial counsel several different versions of the relevant events, including one in which petitioner admitted that he had caused Adria Sauceda's death but asserted that he had not done so intentionally, (2) petitioner informed his trial counsel that, at one point while he was leaning over Adria Sauceda's body attempting to revive her, he sat down on top of her, (3) petitioner's trial counsel concluded that the foregoing statements by petitioner explained how Adria Sauceda's blood had stained petitioner's underwear, (4) petitioner's DNA expert, Dr. Victor Tryon, testified at petitioner's evidentiary hearing that the DNA results obtained from the examination of petitioner's underwear, while not definitive, were consistent with Adria Sauceda's blood being present thereon, and (5) Dr. Tryon's testimony at petitioner's evidentiary hearing was not inconsistent with the trial testimony of the prosecution's DNA experts.¹²⁴ Having independently reviewed the entire record from petitioner's state habeas corpus proceeding, this Court concludes that each of the foregoing factual findings were fully supported by the record before the state habeas court.¹²⁵ While petitioner did introduce evidence through Dr. Tryon suggesting there were avenues available at the time of petitioner's trial to challenge the efficacy of the DNA testing procedures employed by the prosecution's experts, petitioner offered no evidence showing that any basis existed for challenging the findings or conclusions made by the prosecution's DNA experts. In fact, petitioner's own DNA expert did not disagree with the conclusions drawn by the prosecution's trial experts.

124 See Trial Court's Findings of Fact and Conclusions of Law, contained in the Order issued April 23, 1999 (henceforth "State Habeas Findings Conclusions"), found at State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 203-04 and 213.

125 Viewed in the light most favorable to petitioner, at most, Dr. Tryon's testimony during petitioner's state habeas corpus proceeding took issue with what he perceived to be a lack of adequate documentation concerning the controls employed during the DNA testing performed on petitioner's underwear and he suggested several possible influences that might have interfered with an accurate test result. See S.F. State Habeas Hearing, Volume V of VII, testimony of Victor Tryon, at pp. 11-15, 17-21, 25-27, 30, 32, and 34. Significantly, the state habeas court correctly found that Dr. Tryon admitted during his testimony that the DNA test results obtained by the prosecution's trial experts were consistent with Adria Sauceda's blood being on petitioner's underwear. Id. , at p. 39.
Even a cursory review of the photographs of Adria Sauceda's bloodied, battered, body taken at the crime scene reveals that a large quantity of blood was present on and around her torso, head, and hands when it was discovered. See State Exhibit Nos, 5, 6, 10, and 11, S.F. Trial, Volume XVIII of XVIII, at pp. 5-6 and 9-10. Attorney Callahan's belief that the blood found on petitioner's underwear might have gotten there when petitioner sat on Adria's body while he was allegedly attempting to revive her was a rational and reasonable interpretation of the physical evidence in light of his client's statements to both him and the police. The objective reasonableness of a trial counsel's decisions must always be evaluated in the context of the information said counsel's client has imparted to him.

(3) No Deficient Performance

During petitioner's state habeas corpus proceeding, the state trial court concluded that petitioner's trial counsel made an objectively reasonable strategic decision not to challenge the prosecution's DNA evidence because said counsel believed the testimony of the prosecution's DNA experts was consistent with the version of the events on the night in question given to said counsel by petitioner.¹²⁶ Having independently reviewed the evidence presented to the state habeas court, this Court concludes that the foregoing conclusion was the product of an objectively reasonable application of the correct federal legal standard.¹²⁷ Attorney Callahan chose not to challenge DNA evidence which, based upon the information imparted to him by petitioner, was consistent with what petitioner told said counsel had actually occurred on the night petitioner caused the death of Adria Sauceda.¹²⁸ This is the very antithesis of deficient performance.

126 See State Habeas Findings Conclusions, State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 212-18.

127 Petitioner's co-counsel at trial, attorney Jose M. Guerrero testified during petitioner's state habeas corpus proceeding that (1) he was primarily responsible for reviewing the dental and DNA evidence, (2) he read the reports of the prosecution's DNA experts but did not interview any of them prior to trial, (3) he reviewed literature on DNA evidence, as well as the actual reports generated by the prosecution's experts, (4) the defense did not request court-appointment of a DNA expert to assist them, and (5) petitioner told him that he tried to get the girl back into his car but she fell and hit her head and he (petitioner) left because he got scared. See S.F. State Habeas hearing, Volume III of VII, testimony of Jose M. Guerrero, at pp. 105-13.

128 Furthermore, insofar as petitioner argues that his trial counsel conceded, erroneously, that Adria Sauceda's blood had been found on petitioner's underwear (see Petition, at p. 27), that argument misrepresents what petitioner's trial counsel actually said during closing argument. In point of fact, petitioner's trial counsel made the following argument at the conclusion of the guilt-innocence phase of petitioner's trial:

Now, what happened with this evidence? Well, it was collected from the defendant, allegedly, at the Bexar County Jail, some twelve hours after the alleged incident. At least twelve hours.

Then it is taken to the medical Examiner's Office and they run some tests on it and cannot conclude that the blood is from Adria Sauceda. They send it on to D.P.S.

D.P.S. cannot make that determination, either some months later. They send it on to Roche Biomedical. And sometime this year, that is when they say that, Now we have got the DNA of Adria Sauceda on Humberto Leal's underwear.

We talked about contamination of DNA by other body fluids of the individual or other individuals, by microorganisms existed in the world at large. Remember? Ms. Clement agree, yes, after twelve hours it could very easily be contaminated. You might recall that the person from the — Ms. Stanley from DPS Lab said the control was contaminated. Came up with a result that they could not figure out.

S.F. Trial, Volume XVI of XVIII, at pp. 801-02 (emphasis added to highlight the passage taken out of context by petitioner's federal habeas counsel herein).
There was absolutely nothing professionally deficient with the foregoing jury argument. Rather than an admission that Adria Sauceda's blood was found on petitioner's underwear, when view in proper context, the portion of the foregoing argument to which petitioner now objects was merely a recitation of the chronology which petitioner's trial counsel argued rendered the DNA test results unreliable. Far from admitting anything, petitioner's trial counsel was urging the jury to disregard the prosecution's DNA evidence. This attempted distortion of the state trial record by petitioner's federal habeas counsel comes perilously close to a violation of Rule 11, Fed.R.Civ.P.

(4) No Prejudice

More significantly, the state habeas court also concluded that petitioner's complaints about his trial counsel's handling of the prosecution's DNA evidence all failed to satisfy the prejudice prong of Strickland. Having independently reviewed the entirety of the state court records from petitioner's trial and state habeas corpus proceeding, this Court finds no evidence therein suggesting that any of the conclusions reached by the prosecution's DNA expert trial witnesses were erroneous. While he objected to some of the record keeping procedures he apparently assumed had been employed during the DNA testing in petitioner's case, Dr. Tryon admitted that the conclusions drawn by the prosecution's DNA trial experts were consistent with the prosecution's theory that Adria Sauceda's blood was present on petitioner's underwear. Moreover, petitioner wholly failed to show that the appointment of a DNA expert to assist the defense at petitioner's trial would likely have resulted in either the development of any exculpatory or mitigating evidence, the exclusion of any prosecution evidence, or any significant change in the outcome of either phase of petitioner's trial.¹²⁹ Thus, the state habeas court's conclusion regarding the absence of prejudice was, therefore, a reasonable application of the prejudice prong of Strickland. ¹³⁰

129 In short, while Dr. Tryon quibbled with the testing procedures and protocols the prosecution's trial experts used during their evaluation of the DNA evidence in petitioner's case and with the degree of definitiveness that could be given the test results, Dr. Tryon's ultimate conclusion, i.e., that the DNA test results were consistent with Adria Sauceda's blood being found on petitioner's underwear, did not differ significantly from what the prosecution's DNA experts had testified at petitioner's trial. There was nothing unreasonable with the state habeas court's conclusions that petitioner was not prejudiced by the failures of his trial counsel to obtain their own DNA expert, interview the prosecution's DNA experts prior to trial, voir dire those same experts outside the jury's presence, or more thoroughly cross-examine the prosecution's DNA experts. Petitioner wholly failed to present the state habeas court with any evidence suggesting how any of these alleged deficiencies in the performance of his trial counsel actually harmed petitioner at trial. For instance, petitioner failed to introduce any evidence showing what potentially beneficial evidence (from petitioner's perspective) would have been elicited had his trial counsel interviewed the prosecution's DNA experts prior to trial or voir dired those same experts outside the jury's presence. Even Dr. Tryon offered no basis for challenging the qualifications of the prosecution's DNA experts or for excluding their opinions from evidence.

130 Given the overwhelming evidence which showed that (1) Adria Sauceda was alive when she left the Vincent Street party with petitioner, (2) Adria died as a result extensive injuries to her head and brain caused by multiple applications of tremendous amounts of force, (3) petitioner admitted that he struck and pushed Adria, causing her to fall, suffer injuries which rendered her unconscious, and bleed from the head, (4) petitioner admitted that he was alone with Adria at the time she lost consciousness, (5) Adria had been sexually assaulted with a large stick while she was alive, and (6) Adria's body was found shortly after petitioner left the party with her, the extensive trial testimony regarding the blood stains on petitioner's underwear were in all likelihood not critical to the jury's verdict at either phase of trial.

(5) Conclusions

The state habeas court reasonably concluded that petitioner's complaints about his counsel's handling of the prosecution's DNA evidence satisfied neither prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's handling of the prosecution's DNA evidence at trial was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

b. Complaints About Luminol Testing

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance by failing to (1) adequately cross-examine prosecution witness Warren Titus concerning positive Luminol test results for blood on the interior of the Leal family's blue Mercedes, (2) interview officer Titus prior to trial, and (3) request appointment of a defense expert on Luminol testing to present evidence regarding the presumptive nature of Luminol test results.¹³¹

(2) Factual Findings Supported by the Record

To recapitulate, at his trial, petitioner testified that his father had used the blue Mercedes to go deer hunting and this fact might explain the presence of blood inside that vehicle,¹³² consistent with the positive results San Antonio Police Officer Warren Titus had obtained when he conducted Luminol testing on the interior of the passenger door, passenger seat, and driver's seat in the same vehicle.¹³³ In the course of petitioner's state habeas corpus proceeding, the state trial judge specifically found that (1) petitioner failed to present any evidence showing that his father had recently killed a deer or stuffed same inside the vehicle, (2) the vehicle in question was tested only days after the alleged offense in May, 1994, (3) deer hunting was not lawful in South Texas in the Spring, and (4) petitioner told attorney Callahan several different versions of the circumstances surrounding the offense, including one in which petitioner admitted there had been a struggle inside the car.¹³⁴

Having independently reviewed the testimony of Mr. Leal, Sr., from the evidentiary hearing held in petitioner's state habeas corpus proceeding, this Court concludes that the state habeas court's factual findings are fully supported by the record before that court. In point of fact, petitioner's father, Mr. Leal, Sr., testified that (1) he had gone hunting four times with the blue Mercedes, (2) he transported his kill by placing it either on his trunk or inside the passenger compartment, (3) when he gutted his kill, his hands were often bloody, and (4) these facts could explain why blood was found inside that vehicle.¹³⁵ However, Mr. Leal, Sr. specifically denied seeing any blood on or inside the Mercedes on the morning of the murder¹³⁶ and offered no testimony suggesting he had been deer hunting shortly before that date.

135 See S.F. State Habeas Hearing, Volume II of VII, testimony of Humberto Leal, Sr., at p. 80-81.

136 Id., at p. 81.

(3) No Deficient Performance

The state habeas court concluded that the failure of petitioner's trial counsel to cross-examine officer Titus or to otherwise contest the prosecution's evidence of positive Luminol test results on the interior of the Mercedes was the product of a trial strategy and not deficient performance.¹³⁷ Petitioner correctly points out that the state habeas court's characterization of a defense counsel's decision-making in this regard as "strategic" did not, standing alone, resolve the first prong of the Strickland test. Rather, the question to be answered is whether, under all the circumstances, said counsel's decision was an objectively reasonable one.¹³⁸

137 See State Habeas Findings Conclusions, State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 218-20.

138 See Wiggins v. Smith, ___ U.S. at ___, 123 S.Ct. at 2535; Williams v. Taylor, 529 U.S. at 390-91, 120 S.Ct. at 1511; Darden v. Wainwright, 477 U.S. at 184, 106 S.Ct. at 2473; and Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. at 2064.

Having reviewed the entirety of petitioner's state trial court record, as well as the evidence introduced during petitioner's state habeas corpus proceeding, this Court concludes that the state habeas court's determination that petitioner's trial counsel acted in an objectively reasonable manner in choosing not to contest officer Titus' testimony is, itself, an objectively reasonable application of the first prong of Strickland. Petitioner advised attorney Callahan that he had engaged in a struggle with Adria Sauceda inside the blue Mercedes.¹³⁹ Petitioner also told his other trial counsel, attorney Jose M. Guerrero, that he had struggled with the girl while she was attempting to get out of the car.¹⁴⁰ The evidence at petitioner's trial included photographs showing the extensive head lacerations and hand injuries Adria Sauceda sustained prior to her death, as well as the scratches petitioner sustained to his face, neck, chest, and inner right arm.¹⁴¹ Therefore, petitioner's trial counsel could have reasonably concluded that the version of the relevant events given to police by petitioner in his second written statement, and confirmed by petitioner's own statements to his trial counsel, was consistent with the presence of blood inside the blue Mercedes.¹⁴² 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.¹⁴³ Under the circumstances of petitioner's case, particularly given petitioner's confession to police that he had fought with Adria inside the vehicle in question and the obvious injuries both he and Adria sustained, the state habeas court's conclusion that petitioner's trial counsel did not render deficient performance in failing to challenge Titus's testimony regarding his positive Luminol test results for the presence of blood inside the Mercedes was neither contrary to, nor an unreasonable application of, clearly established federal law.

139 See S.F. State Habeas Hearing, Volume III of VII, testimony of Vincent D. Callahan, at pp. 74-75. Petitioner also admitted to attorney Callahan that he had struck Adria and fled the scene when he saw blood coming out of her face. Id. Callahan made clear in his testimony that, despite the fact petitioner offered several different versions of what had happened, in each version, petitioner admitted he was alone with Adria Sauceda when she lost consciousness and began to bleed from the face. Id., at p. 75.

140 See S.F. State Habeas Hearing, Volume III of VII, testimony of Jose M. Guerrero, at p. 113.

141 See State Exhibit Nos. 5-6, 10-12, 58-62, 94-95, and 98-99, found at S.F. Trial, Volume XVIII of XVIII, at pp. 5-6, 9-11, 38-40, 73-74, and 77-78.

142 In this regard it must be noted that officer Titus's testimony at trial was fairly limited in scope. He simply observed that several locations inside the blue Mercedes had tested positive with Luminol and that the appearance of the surfaces in question suggested that blood had been wiped from those surfaces. See S.F. Trial, Volume XIV of XVIII, testimony of Warren K. Titus, at pp. 291-96 and 298-303.
When called to testify at the evidentiary hearing held in petitioner's state habeas corpus proceeding, Titus testified that (1) while Luminol can obtain false positive test results on surfaces treated with common household products such as cleaning agents, (2) such false positives usually appear shortly after the application of Luminol and fade quickly away after Luminol is applied, (3) for that very reason he employed time-lapse photography when he tested the blue Mercedes in question, and (4) based upon the time-lapse photography, he believed the substance that had caused the luminescence in the presence of Luminol on the interior of the Mercedes was blood. See S.F. State Habeas Hearing, Volume III of VII, testimony of Warren K. Titus, at pp. 152-55 and 162.

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

(4) No Prejudice

Furthermore, the state habeas court reasonably concluded that petitioner failed to satisfy the prejudice prong of Strickland in connection with his complaints about the Luminol test results. Petitioner presented the state habeas court with no evidence showing that petitioner would have gained any substantial benefit from having his trial counsel interview Titus prior to trial, engage Titus in cross-examination, or obtain the assistance of a defense expert on Luminol testing. On the contrary, as shown by Titus's testimony during petitioner's state habeas corpus proceeding, cross-examination of Titus at petitioner's trial would have proven to be of negligible value to petitioner because (1) Titus readily admitted he could not answer many of the questions about Luminol testing that petitioner now urges should have been asked that witness, (2) Titus took great care to avoid a false positive test result by employing time-lapse photography, and (3) Titus was certain the positive test results he obtained on the Mercedes were caused by the presence of blood.¹⁴⁴ Significantly, petitioner presented the state habeas court with no new expert testimony or other evidence suggesting that a court-appointed defense expert on Luminol testing could have furnished any helpful evidence at petitioner's trial.¹⁴⁵ Even more to the point, petitioner offered the state habeas court no evidence showing that the positive Luminol test results obtained by Titus were inaccurate.¹⁴⁶ Thus, the state habeas court's conclusion regarding the absence of prejudice was, therefore, a reasonable application of the prejudice prong of Strickland. ¹⁴⁷

144 See S.F. State Habeas Hearing, Volume III of VII, testimony of Warren K. Titus, at pp. 152-64. For instance, Titus made it very clear that he was unaware of any types of further testing procedures that could have been employed once a surface had tested positive for the presence of blood with Luminol. Id., at pp. 159-61. Petitioner never offered any expert testimony on this subject during petitioner's state habeas corpus proceeding. Nor did petitioner offer the state habeas court any evidence showing that additional testing on the purported blood stains inside the Mercedes could have differentiated between human and animal blood. In short, petitioner failed to offer any evidence to the state habeas court showing that any further confirmatory test was available in the 1994-95 time frame that could have furnished any evidence beneficial to petitioner with regard to the interior of the Mercedes.

145 While petitioner does make reference to several purported learned treatises in his pleadings filed in this Court, nothing in the records now before this Court indicates that petitioner ever presented any of those treatises to the state habeas court for admission into evidence or asked that court to take judicial notice of the contents of same during petitioner's state habeas corpus proceeding. With all due respect, argument is no substitute for evidence.

146 On the contrary, petitioner now appears to contend that any positive Luminol test results on the interior of the Mercedes were the result of the presence of deer blood. However, during his testimony at petitioner's state habeas corpus hearing, petitioner's father was never asked whether, in fact, he had ever wiped away or otherwise cleaned off deer blood from the inside or his Mercedes after going deer hunting.

147 Given the overwhelming evidence which showed that (1) Adria Sauceda was alive when she left the Vincent Street party with petitioner, (2) Adria died as a result extensive injuries to her head and brain caused by multiple applications of tremendous amounts of force, (3) petitioner admitted that he fought with Adria while she was inside the car, (4) petitioner admitted that he was alone with Adria at the time she lost consciousness and began to bleed from the face and head, (5) petitioner's face and upper body showed signs that he had been assaulted violently, (6) Adria had been sexually assaulted with a large stick while she was alive, and (7) Adria's body was found shortly after petitioner left the party with her, the limited trial testimony regarding the blood stains found inside the blue Mercedes were in all likelihood not critical to the jury's verdict at either phase of trial.

(5) Conclusions

The state habeas court reasonably concluded that petitioner's complaints about his counsel's handling of the prosecution's Luminol evidence satisfied neither prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's handling of Warren Titus' trial testimony about the results of Luminol testing on the interior of the blue Mercedes was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

c. Complaints About the Dental Evidence

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance by failing to (1) interview the prosecution's bite mark expert prior to trial and (2) request appointment of a qualified defense expert on this aspect of the prosecution's case.¹⁴⁸

148 See Petition, at pp. 44-52.

(2) Factual Findings Supported by the Record

In the course of petitioner's state habeas corpus proceeding, the state habeas court found that (1) petitioner's co-counsel at trial, attorney Guerrero, consulted with a dentist named Dr. Aguirre concerning the prosecution's bite mark evidence,¹⁴⁹ (2) while Dr. Aguirre did furnish attorney Guerrero with information to assist in the cross-examination of the prosecution's bite mark expert, Dr. Aguirre concurred with the ultimate conclusion of the prosecution's expert that petitioner's teeth matched the bite marks found on Adria Sauceda's body, and (3) at the hearing held in petitioner's state habeas corpus proceeding, Dr. Alder, the prosecution's trial expert on the bite mark expert, testified that petitioner's dentition contained sufficient unique aspects to permit him to conclude, within a reasonable medical certainty, that the bite marks on Adria's chest were caused by petitioner's teeth.¹⁵⁰ Having independently reviewed the testimony of both Dr. Alder, as well as the testimony of petitioner's expert Dr. Paul G. Stimson, during the evidentiary hearing held in petitioner's state habeas corpus proceeding, this Court concludes that the state habeas court's foregoing factual findings were fully supported by the record before that court.¹⁵¹

149 Petitioner has neither alleged nor presented any evidence showing that Dr. Aguirre was unqualified to render an opinion regarding the source of the bite marks found on Adria Sauceda's body. On the contrary, petitioner's own expert, Dr. Paul G. Stimson testified during petitioner's state habeas corpus hearing that every dentist is qualified to give an opinion regarding bite marks. See S.F. State Habeas Hearing, Volume V of VII, testimony of Paul G. Stimson, at p. 61.

150 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 220-25.

151 Moreover, having compared Dr. Alder's trial testimony regarding the source of the bite marks on Adria's body with his testimony on the same subject given several years later during petitioner's state habeas corpus proceeding, this Court notes that Dr. Alder appeared to be even more certain of the source of the bite mark on Adria Sauceda's chest during the latter proceeding than he had been during petitioner's trial. See S.F. State Habeas Hearing, Volume V of VII, testimony of Marden Alder, at pp. 108, 112-14, and 123. Dr. Alder testified during petitioner's state habeas corpus proceeding that, while petitioner's dentition was not "one of a kind," he believed,with reasonable medical certainty, that petitioner's dentition contained sufficient unique aspects to allow him to conclude that petitioner's teeth (1) caused the bite mark on Adria Sauceda's chest and (2) could not be excluded as a possible source of the bite mark on Adria Sauceda's neck. Id. , at pp. 114-15 and 123. At petitioner's trial, Dr. Alder had testified only that petitioner's teeth were "consistent" with the bite marks on Adria Sauceda's body and that he believed petitioner's teeth had caused same. See S.F. Trial, Volume XVI of XVIII, testimony of Marden E. Alder, at pp. 724-27.
Perhaps not coincidentally, Dr. Alder's qualifications as an expert in forensic odontology appear to have been greater at the time of petitioner's state habeas corpus proceeding than they had been at the time of petitioner's trial. At the time of petitioner's trial, Dr. Alder testified that although he had joined the American Academy of Forensic Sciences in 1985 and was board certified by the American Society of Odontology, at that point in time, forensic dentistry was not a recognized specialty within the American Dental Association. See S.F. Trial, Volume XVI of XVIII, testimony of Marden E. Alder, at pp. 700-01. However, when he testified during petitioner's state habeas corpus proceeding, Dr. Alder stated that he had recently become board certified in Forensic Odontology. See S.F. State Habeas Hearing, Volume V of VII, testimony of Marden Alder, at p. 104.

(3) No Deficient Performance

The state habeas trial court concluded that the performance of petitioner's trial counsel vis-a-vis the prosecution's bite mark evidence did not fall below an objective level of reasonableness because (1) petitioner's trial counsel did consult with a qualified dentist who informed said counsel that his own conclusions regarding the source of the bite marks on Adria's body were consistent with those of the prosecution's dental expert and (2) the decision by petitioner's trial counsel not to contest the prosecution's bite mark evidence more vigorously than said counsel did so was an objectively reasonable, informed, strategic, decision.¹⁵² Having independently reviewed the record from petitioner's trial and all the testimony from petitioner's state habeas corpus proceeding, this Court concludes that the state habeas court's conclusions in this regard were eminently reasonable and fully supported by the record before that court.¹⁵³

152 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 226-27.
Petitioner's co-counsel at trial, attorney Jose Guerrero testified during petitioner's state habeas corpus hearing that (1) his primary involvement in connection with petitioner's trial was in addressing the prosecution's bite mark evidence, (2) he consulted with Jose E. Aguirre, a San Antonio dentist, (3) while Dr. Aguirre was not a forensic dentist or a specialist in forensic dentistry, at that time, forensic dentistry was a relatively new field of specialization, (4) while Dr. Aguirre had not testified in trial regarding bite marks, he had testified in medical malpractice cases, (5) Dr. Aguirre reviewed the overlays used at petitioner's trial by the prosecution's dental expert, (6) at that time, there were few books on forensic dentistry, (7) Dr. Aguirre felt strongly that the defense would not benefit from having an forensic dentistry testify but did furnish Guerrero with questions for use in cross-examining the prosecution's dental expert, (8) at the time of petitioner's trial, the prosecution's dental expert possessed the same credentials as Dr. Aguirre, (9) after consulting with Dr. Aguirre, petitioner's trial counsel, i.e., attorneys Guerrero and Callahan, chose not to seek the assistance of a court-appointed dental expert, and (10) Dr. Aguirre came to the same conclusions regarding the bite marks on Adria Sauceda's body as did the prosecution's trial expert witness, Dr. Alder. See S.F. State Habeas Hearing, Volume IV of VII testimony of Jose Guerrero, at pp. 12-19.

153 It should be pointed out that, during their cross-examination of Dr. Alder during petitioner's trial, petitioner's trial counsel did manage to obtain admissions from Dr. Alder that (1) he did not know the angle of the camera which photographed the bite marks on Adria Sauceda's body, (2) the angle of the camera taking those photographs could affect interpretation of the bite marks, (3) there were other materials more accurate with regard to obtaining a dental impression than those employed by Dr. Alder when he took petitioner's dental impressions, (4) some of the bite marks on Adria Sauceda's body were dynamic in nature in that not all of the bite happened at the same time due to teeth slippage, (5) the slippage of the teeth caused larger bite marks than would otherwise have been the case, (6) wear to the incisors that is apparent in the models of petitioner's teeth was less prominent in the overlays Dr. Alder prepared, (7) not all bite marks have unique characteristics that distinguish them from other bite marks, (8) the distinctive features of petitioner's teeth did not include anything as obvious as a missing tooth or a crooked tooth, and (9) he could not speculate on the number of persons in San Antonio whose teeth could have made the bite marks on Adria's body. See S.F. Trial, Volume XVI of XVIII, testimony of Marden E. Alder, at pp. 730-49. In short, petitioner's trial counsel consulted with its own dental expert, then extensively cross-examined Dr. Alder, and, in so doing, obtained significant favorable testimony. There was nothing objectively unreasonable or professionally deficient about this aspect of the performance of petitioner's trial counsel.

(4) No Prejudice

Furthermore, the state habeas court reasonably concluded that petitioner failed to satisfy the prejudice prong of Strickland in connection with his complaints about the prosecution's bite mark evidence. During petitioner's state habeas corpus hearing, Dr. Paul G. Stimson testified that (1) skin is not a good impression material for recording dentition because muscle and fat just beneath the skin moves when the attacker moves, (2) a bite mark in skin is like a smudged fingerprint, (3) there are no specific standards for examining bite marks in the field of forensic odontology, (4) while Dr. Alder's use of a computer was an acceptable manner for evaluating the bite marks on Adria Sauceda's body, he had been able to find four dental students in one of his classes whose dental models were extremely close to those Dr. Alder obtained from petitioner, (5) petitioner possessed normal alignment of his teeth with no unique dentition, (6) while Dr. Alder used the term "consistent" during his trial testimony to describe petitioner's teeth and the bite marks on Adria Sauceda, others could have been the biter, and (7) there was nothing unique about the bite marks on Adria Sauceda's body.¹⁵⁴

154 See S.F. State Habeas Hearing, Volume V of VII, testimony of Paul G. Stimson, at pp. 56-100. On cross-examination, Dr. Stimson did admit that there were subtle differences between the petitioner's teeth and those of the four dental students whom Dr. Stimson had found to have "similar" dentition to petitioner's. Id. , at p. 95.

Recalled to testify during petitioner's state habeas corpus hearing, Dr. Alder testified that (1) he believed, with reasonable medical certainty, that petitioner's teeth caused the bite mark on Adria Sauceda's chest, (2) he based that conclusion on distinguishing features of petitioner's teeth, including the spacing between (a) the right incisor and first premolar and (b) the mandiular canine and first premolar bilaterally, (3) none of the four dental students identified by Dr. Stimson possessed these same features in their dentition, (4) other unique characteristics convinced him, with reasonable medical certainty, that petitioner's teeth caused the bite mark on Adria's chest, and (5) he still believed petitioner's teeth could not be ruled out as a possible source of the bite on Adria's neck.¹⁵⁵

155 See S.F. State Habeas Hearing, Volume V of VII, testimony of Marden Alder, at pp. 103-24. Dr. Alder also identified specific differences between all of the overlays prepared by Dr. Stimson and the overlay of petitioner's teeth that he prepared prior to petitioner's trial. Id. , at pp. 106-07.

Significantly, petitioner's expert, Dr. Stimson, did not testify that there was anything inconsistent between petitioner's teeth and the bite marks on Adria Sauceda's body or suggest that petitioner could be eliminated as a possible source of those bite marks. Likewise, Dr. Stimson did not disagree with any of Dr. Alder's testimony at petitioner's state habeas corpus hearing or suggest that Dr. Aguirre's analysis of the bite mark evidence prior to petitioner's trial had been flawed. Under such circumstances, the state habeas court reasonably applied the prejudice prong of Strickland when it concluded that petitioner was not "prejudiced" within the meaning of Strickland by the failures of his trial counsel either to interview Dr. Alder prior to trial or to request court-appointment of a forensic odontologist to assist the defense.¹⁵⁶

156 Insofar as petitioner faults his trial counsel for failing to interview Dr. Alder prior to trial, petitioner failed to introduce any evidence during his state habeas corpus proceeding identify any specific information that could have been obtained from Dr. Alder during such a pretrial interview or to otherwise show how the failure of his trial counsel to conduct such a pretrial interview prejudiced petitioner. On the contrary, it is readily apparent from a review of the cross-examination of Dr. Alder at petitioner's trial that petitioner's trial counsel was fully prepared to cross-examine Dr. Alder and obtained considerable favorable evidence from Dr. Alder on cross-examination. See note 152, supra.

(5) Conclusions

The state habeas court reasonably concluded that petitioner's complaints about his counsel's handling of the prosecution's dental evidence satisfied neither prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's handling of the bite mark 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 habeas corpus proceeding.

d. Complaints About Mental Health Evidence

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance by (1) calling Dr. Potterf to testify and trial without first adequately consulting with him and then eliciting testimony from Dr. Potterf suggesting that petitioner had an anti-social personality, (2) failing to offer any truly mitigating evidence through Dr. Potterf, and (3) failing to request court-appointment of a mental health expert to assist the defense at trial.¹⁵⁷

157 See Petition, at pp. 52-68.

(2) Factual Findings Supported by the Record

In the course of petitioner's state habeas corpus proceeding, the state habeas court found that (1) while petitioner's lead trial counsel, attorney Callahan, did not consult extensively with Dr. Potterf prior to calling him to testify at the punishment phase of petitioner's trial, Callahan did review Dr. Potterf's report and did make sure Potterf's trial testimony would be consistent with his report, (2) Callahan called Dr. Potterf to testify about petitioner's alcohol dependence and behavioral problems resulting from petitioner having been beaten as a child, and (3) Callahan wanted to show the jury that petitioner lacked the requisite intent to commit the crime due to his intoxication and wanted to show that alcohol was the cause for petitioner's violent outburst, even though he knew this same evidence would also show petitioner possessed an anti-social personality.¹⁵⁸

158 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 205-11.
Attorney Callahan testified during petitioner's state habeas hearing that (1) he did not consult with any mental health experts prior to trial but did review Dr. Potterf's report, (2) his only conversation with Dr. Potterf prior to putting Potterf on the stand was to ascertain if Potterf's opinions were still the same as those he expressed in his written report, (3) he saw no need to visit with Dr. Potterf although he viewed Dr. Potterf's report as containing both helpful and harmful information, (4) he did not believe that having Dr. Potterf appointed as a defense expert would have assisted the defense and did not request any other mental health expert be appointed to assist the defense, (5) while he was not familiar with the term "pathological intoxication," he had read a book on psychiatry and the DSM to familiarize himself with psychiatric vocabulary, (6) he was aware that Dr. Potterf's report mentioned petitioner's abuse of alcohol and that such information could potentially have both mitigating and aggravating impact upon the jury, (7) evidence of petitioner's intoxication at the time of the crime was not developed sufficiently to justify a jury instruction on temporary insanity arising from alcohol ingestion, (8) as with evidence of alcoholism, Callahan believed that evidence showing that petitioner had been abused as a child could have potentially both helpful and harmful impact upon the jury, and (9) nonetheless, Callahan wanted to introduce evidence of petitioner's drinking problem and abuse as a child to show that it affected petitioner's mind. See S.F. State Habeas Hearing, Volume III of VII, testimony of Vincent D. Callahan, at pp. 15-33, 78-80, and 86-88.

(3) No Deficient Performance

The state habeas trial court concluded, in part, that (1) petitioner's trial counsel did not render ineffective assistance by calling Dr. Potterf to testify and (2) petitioner's trial counsel knew what testimony Dr. Potterf would give because they had reviewed Dr. Potterf's report and briefly consulted with him.¹⁵⁹ This Court's independent review of the testimony of both of petitioner's trial counsel given during petitioner's state habeas corpus proceeding¹⁶⁰ reveals that petitioner's trial counsel was well aware of both the potential benefits and pitfalls of introducing Dr. Potterf's testimony at the punishment phase of petitioner's capital murder trial but made a deliberate choice to introduce that testimony in question because said counsel wanted to offer the jury a rational explanation for an otherwise brutal, senseless, crime.¹⁶¹ Given the extremely brutal and grisly nature of the crime for which petitioner had just been convicted, the decision by petitioner's trial counsel to make the jury aware of potentially mitigating psychological evidence, including evidence which might potentially harm petitioner, fell well within the broad scope of professionally competent, informed, objectively reasonable, decision-making.¹⁶² Even with the benefits of hindsight, this Court cannot condemn the attempt by petitioner's trial counsel to furnish the jury with a plausible explanation, i.e., petitioner's pathological intoxication, for such a brutal crime.¹⁶³

159 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 211-12.

160 Attorney Callahan's testimony during petitioner's state habeas corpus proceeding is summarized in pertinent part in note 157, supra. Attorney Guerrero's testimony during petitioner's state habeas corpus hearing focused almost exclusively on the decisions by petitioner's trial counsel not to contest the prosecution's DNA and bite mark evidence and is summarized in notes 127 and 151, supra.

161 See S.F. State Habeas Hearing, Volume III of VII, testimony of Vincent D. Callahan, at pp. 26-28, 32-33, and 78-80. Attorney Callahan made it clear during his testimony that he was aware of the potential dangers in introducing the mental health testimony of Dr. Potterf but, nevertheless, he wanted the jury to be aware that petitioner's alcohol abuse was likely to have caused a change in petitioner's personality that made petitioner more aggressive and that petitioner also suffered from the detrimental psychological effects of having been beaten as a child. Id. , at pp. 26, 33, and 78-80.

162 Petitioner presented the state habeas court with no evidence showing that it was possible to gain the admission of evidence regarding petitioner's alcoholism and history of childhood abuse by his father without also opening the door to testimony suggesting that petitioner possessed an anti-social personality. Moreover, given the testimony offered by the prosecution at the punishment phase of petitioner's trial, it was clear that petitioner had a history of engaging in threatening behavior. There was nothing objectively unreasonable with the decision by petitioner's trial counsel to offer a rational explanation for petitioner's hostility. Furthermore, by attempting to tie the extreme violence exhibited during the murder of Adria Sauceda to petitioner's abuse of alcohol, which presumably would not be available to petitioner if he were incarcerated, petitioner's trial counsel gained a basis for arguing to the jury that a life sentence would sufficient punishment for petitioner.

163 It must be remembered that, by the time of the punishment phase of petitioner's capital murder trial, the jury had already heard extensive testimony regarding Adria Sauceda's readily apparent injuries and had viewed numerous grisly photographs of her nude, bloody body. Evidence showing the petitioner was drunk at the time of the offense and that he was of ten more aggressive when intoxicated might not have proven to be sufficient mitigation to warrant a life sentence in petitioner's case but petitioner's trial counsel cannot rationally be faulted for presenting this evidence to the jurors who held petitioner's fate in their hands. The extreme violence inflicted on Adria Sauceda cried out for an explanation. The medical examiner testified that Adria's interior brain sustained severe injury that could only have resulted from application of a tremendous amount of force. Yet petitioner was unable or unwilling to admit that he did anything more than push her, causing her to fall, and then shake her and slap her in an unsuccessful attempt to revive her. While pathological intoxication might not have furnished a sufficient mitigation to warrant a life sentence for petitioner, under the circumstances of petitioner's case, his trial counsel's decision to present Dr. Potterf's testimony at the punishment phase of trial was the antithesis of deficient performance.

(4) No Prejudice

Furthermore, the state habeas court reasonably concluded that petitioner failed to satisfy the prejudice prong of Strickland in connection with his complaints about his trial counsel's handling of mental health evidence.

In order to establish that counsel was rendered ineffective by virtue of a failure to investigate the case against a defendant or to discover and present evidence, a convicted defendant must do more than merely allege a failure to investigate; he must state with specificity what the investigation would have revealed, what evidence would have resulted from that investigation, and how such would have altered the outcome of the case.¹⁶⁴ Petitioner failed to offer the state habeas court any evidence showing that undiscovered or otherwise new, potentially mitigating, mental health evidence was available at the time of petitioner's trial or that such evidence could have been developed and presented had a mental health expert been appointed to assist the defense. In a capital sentencing proceeding, the prejudice analysis focuses on whether there is a reasonable probability that, absent counsel's errors, a life sentence would have been imposed.¹⁶⁵ Petitioner failed to present the state habeas court with any evidence showing that any potential benefit likely to have altered the outcome of the punishment phase of petitioner's trial would have been derived from the appointment of a mental health expert to assist the defense at petitioner's trial. Thus, petitioner's complaint that his trial counsel failed to secure the assistance of such a defense expert fails to satisfy the prejudice prong of Strickland.

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

165 See Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. at 2069.

For similar reasons, petitioner's complaints regarding his trial counsel's presentation of Dr. Potterf's testimony also fail to satisfy the prejudice prong of Strickland. At the punishment phase of petitioner's capital murder trial, petitioner's trial counsel reasonably chose to present testimony showing that (1) petitioner was highly intoxicated on the night of the murder,¹⁶⁶ (2) petitioner had suffered physical abuse during his childhood,¹⁶⁷ and (3) petitioner suffered from pathological intoxication, a condition which caused him to suffer a sudden mental change after ingesting alcohol which caused petitioner to become very aggressive.¹⁶⁸ Petitioner's trial counsel presented Dr. Potterf's testimony for the purpose of laying the groundwork for the argument that, once deprived of alcohol in a custodial setting, petitioner would not pose a risk of future dangerousness.¹⁶⁹ Had petitioner's trial counsel chosen not to elicit the testimony summarized above from Dr. Potterf, petitioner's trial counsel would have been left with very little evidence supporting their request that petitioner be spared the death penalty. In sum, there is simply no reasonable probability that, but for the action of petitioner's trial counsel in calling Dr. Potterf to testify and eliciting the testimony from Dr. Potterf that he gave at the punishment phase of petitioner's trial, the outcome of the punishment phase of petitioner's trial would have been any different.¹⁷⁰

166 Petitioner himself testified that he was "drunk, severely bad" and didn't know how drunk he was that night. See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 94-95.

167 One of petitioner's former high school teachers, Mary Matamaros, testified that petitioner's father mistreated petitioner both at home and at work. See S.F. Trial, Volume XVII of XVIII, testimony of Mary Matamaros, at pp. 86-87. Petitioner's mother testified that she had spanked petitioner when he was a child and petitioner had displayed a drinking problem for approximately a year before the murder. See Id. , testimony of Maria Francesca Leal, at pp. 131-35. The potentially mitigating value of the foregoing testimony was undercut not only by the prosecution's eliciting testimony from Dr. Potterf that persons who are beaten as children often develop anti-social personalities (see Id. , testimony of Raymond D. Potterf, at pp. 83-84) but also by petitioner himself when he testified that his father had never beaten or hurt him. See Id. , testimony of Humberto Leal, Jr., at p. 91.

168 S.F. Trial, Volume XVII of XVIII, testimony of Raymond D. Potterf, at pp. 78-79.

169 Petitioner testified that he had a clean record, had been a good inmate while awaiting trial, and he was not a violent person. See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 94-95. Given the extreme brutality of the murder of Adria Sauceda, including the multiple bite marks on her body, as well as the act of shoving a stick deep enough inside her vagina to cause bruising of the back of the vaginal wall, petitioner's trial counsel could reasonably have concluded that expert testimony was necessary to offer some rational explanation for how their client, who claimed to be a non-violent person, could have committed such an unspeakable crime. Given petitioner's inability to admit that he had engaged in the most vicious of the acts committed against Adria Sauceda, the introduction of Dr. Potterf's testimony, far from prejudicing petitioner, was perhaps the only vehicle available through which petitioner's trial counsel could offer the jury a rational explanation for how petitioner could have been responsible for what happened to Adria Sauceda.

170 In fact, had they not called Dr. Potterf to testify, petitioner's trial counsel would have been left with arguing for mercy on behalf of a client who refused to admit that he had engaged in the very conduct for which the jury had just convicted him and whose only defense was he was drunk at the time Adria Sauceda died.

Only when taken in conjunction with Dr. Potterf's testimony did petitioner's own testimony, as well as the testimony of other persons who knew petitioner, furnish any support for the propositions that (1) petitioner's history of childhood abuse and alcoholism could have contributed to the extreme violence displayed in petitioner's brutal murder of Adria Sauceda and (2) petitioner was unlikely to exhibit such extreme violence in a custodial setting. Introduction of Dr. Potterf's testimony did not prejudice petitioner within the meaning of Strickland.

(5) Conclusions

The state habeas court reasonably concluded that petitioner's complaints about his counsel's handling of the mental health evidence satisfied neither prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's handling of mental health 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 habeas corpus proceeding.

e. Complaints About Jury Selection

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance during jury selection by (1) "wasting" three peremptory challenges,¹⁷¹ (2) ineffectually challenging unfavorable venire persons for cause,¹⁷² (3) ineffectually rehabilitating favorable venire persons, i.e., those who had reservations about capital punishment,¹⁷³ (4) failing to object to the prosecution's misleading characterization regarding applicable law,¹⁷⁴ and (5) failing to object or otherwise preserve various errors committed by the trial court during jury selection for appellate review.¹⁷⁵

171 More specifically, petitioner complains that his trial counsel employed peremptory challenges against three members of the jury venire, i.e., venire members Catalina Rios Montalvo Williams, Michael Dean Borg, and Michael Scott Davis, before they were subjected to individual voir dire. During his testimony at petitioner's state habeas corpus proceeding, petitioner's lead trial counsel, attorney Callahan, admitted that his actions with regard to these three members of the jury venire were "foolish" but also stated that the defense did not exhaust its available peremptory challenges because they believed they had a "ringer" in juror number twelve. See S.F. State Habeas Hearing, Volume III of VII, testimony of Vincent D. Callahan, at pp. 47-50.

172 More specifically, petitioner complains that his trial counsel failed to aggressively challenge for cause venire persons Allen C. Ludwig, Darrel Gene Richter, Gloria Rios Vidaurri, Evilu Biggerstaff Kindred, Il Tae Parrish, William Charles Youngblood, Sylvia Sanchez, and Mark Connelly Getzen. However, petitioner does not allege that any of these persons actually served on his petit jury.

173 Petitioner complains generally about his trial counsel's failure to more aggressively rehabilitate all sixteen of the venire persons against whom the prosecution successfully urged challenges for cause but identifies only one of those persons, i.e., venire member Vaccarro, by name. Petitioner does not allege any specific facts showing what questions his trial counsel should or could have used to successfully "rehabilitate" any of these members of the jury venire.

174 More specifically, petitioner complains that his trial counsel failed to object to (1) instances in which the prosecution advised the jury venire that there was "no such thing" as mitigating evidence, (2) evidence of voluntary intoxication must rise to the level of temporary insanity before it becomes "mitigating," (3) the term "criminal acts of violence" is so broad as to encompass spitting on someone or breaking a window, and (4) the prosecution informing the venire members that the capital sentencing special issue addressing mitigating evidence could be answered in petitioner's favor only if the mitigating evidence outweighed the aggravating circumstances.

175 See Petitioner, at pp. 68-88.

(2) State Habeas Court: No Prejudice

Despite making extensive factual findings regarding the circumstances of the jury selection process prior to petitioner's trial on the merits,¹⁷⁶ the state habeas court resolved petitioner's complaints about the performance of his trial counsel by concluding that, because petitioner had failed to identify any biased or unqualified jurors who actually sat on his petit jury, petitioner had failed to satisfy the prejudice prong of Strickland. ¹⁷⁷

176 See State Habeas Findings Conclusions, State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 230-36.

177 See State Habeas Findings Conclusions, State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 236-37.

(3) No Prejudice

Petitioner's multiple complaints about the performance of his trial counsel during jury selection fail to satisfy the prejudice prong of Strickland for two, equally compelling, reasons:

(a) No Unqualified or Biased Jurors

First, 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. ¹⁷⁸ This is so because 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.¹⁷⁹ The state habeas court correctly pointed out that petitioner has failed to identify any allegedly biased or unqualified juror who actually sat on his petit jury. The state habeas court's application of the foregoing principles to petitioner's complaints about his trial counsel's conduct during jury selection was neither contrary to clearly established federal law nor an unreasonable application of clearly established federal law.

178 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):

Petitioner has not alleged any facts showing that any of the twelve persons who served as petit jurors during his 1989 trial were either biased against him or otherwise unqualified to serve in that capacity. Petitioner has not alleged any facts showing that any of these same twelve petit jurors could have been disqualified from service at that trial had his trial counsel conducted a through more vigorous or extensive voir dire examination. Petitioner has also alleged no facts suggesting or implying that more extensive voir dire questioning by his trial counsel would have revealed any information which would have caused his counsel to exercise a peremptory strike against any of those twelve venire persons. Petitioner does not identify any member of his petit jury against whom he now alleges his trial counsel should have exercised a peremptory challenge. In short, petitioner has not identified any objectionable juror whom his counsel was forced to accept as a result of any deficiency by said counsel during voir dire.

179 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).

(b) No Probability of a Different Verdict

Moreover, the evidence against petitioner at both phases of his capital murder trial was overwhelming.

While largely circumstantial, the prosecution's evidence introduced at the guilt-innocence phase of petitioner's trial was compelling. It was undisputed that petitioner was the last person seen with Adria Sauceda when she was alive.¹⁸⁰ After falsely asserting that he knew Adria's family and knew where she lived, petitioner represented to at least two individuals that he would take her home.¹⁸¹ Petitioner drove away from the party at Vincent Street with an intoxicated Adria in his vehicle. Adria's nude, bloodied, battered body was found shortly after petitioner's brother and sister made a particularly dramatic appearance at the party, demanding to know what had happened between petitioner and a girl. Petitioner admitted to police that he had fought with Adria, he pushed her down, she fell and did not get back up, and he abandoned her while she was unconscious and bleeding from the face and head. There was no evidence that petitioner made any attempt to obtain medical care for the injured and unconscious sixteen-year-old. In addition, forensic dental evidence strongly suggested that petitioner's teeth were responsible for the bite marks on Adria's body. The autopsy performed on Adria revealed massive injuries wholly inconsistent with anything other than a deliberate assault, including multiple blows to her face and head with a blunt object, as well as numerous blows delivered to her body by an object with an edge. Given the foregoing forensic evidence, this was obviously a case of murder. The stick protruding from Adria's body and the associated injuries to her vagina established practically as a matter of law that she had been the victim of a sexual assault while she was still alive. Thus, her death was also a capital murder. Under such circumstances, there is no reasonable probability that anyrational jury would have acquitted petitioner.¹⁸²

180 At trial, both Juan Martinez and Simon Ortega testified without contradiction from any other witness that they saw the petitioner drive away from the party in the blue Mercedes with Adria as his sole passenger. See S.F. Trial, Volume XIII of XVIII, testimony of Juan Martinez, at p. 105; Volume XIII of XVIII, testimony of Simon Ortega, at p. 168.

181 At the guilt-innocence phase of trial, Simon Ortega testified without contradiction that petitioner represented to him and another person that he (petitioner) knew Adria's family, he had known Adria since she was a little girl, and he would take her home and explain things to her family. See S.F. Trial, Volume XIII of XVIII, testimony of Simon Ortega, at pp. 167-68. In point of fact, petitioner admitted during his testimony at the punishment phase of his trial that he did not know Adria's name and he did not know where she lived, explaining that she identified herself to him as "Evalin Salazar" and told him she lived off either Buda or Budd Streets (both of which were in the opposite direction from the route petitioner admitted he drove after leaving the party). See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 104-08 and 110-11.

182 In sum, even if this Court disregards (1) the highly inculpatory hearsay within hearsay statement attributed to Gualberto Leal, allegedly quoting petitioner, (2) the presence of Adria Sauceda's blood-stained blouse inside the Leal home the day of the murder, (3) the positive Luminol test results on the interior of the blue Mercedes, (4) the DNA evidence showing that one of the blood stains on petitioner's underwear was consistent with Adria Sauceda's DNA and inconsistent with the DNA of both petitioner and his girlfriend, the evidence introduced at the guilt-innocence phase of petitioner's trial was still overwhelming in favor of the jury's verdict. "If the facts adduced at trial point so overwhelmingly to the defendant's guilt that even the most competent attorney would be unlikely to have obtained an acquittal, then the defendant's ineffective assistance claim must fall." Green v. Lynaugh, 868 F.2d 176, 177 (5th Cir. 1989), cert. denied, 493 U.S. 831 (1989).

Furthermore, petitioner's own testimony at the punishment phase of his trial offered his jury the best reasons to impose the death penalty imaginable: first, petitioner refused to make a sincere acceptance of responsibility for his crime, repeatedly denying he had engaged in the conduct which the same jury had implicitly found him guilty of committing, asserted that he was not guilty of the offense charged and would obtain a reversal of his conviction on appeal, and argued the jury should not be permitted to make a final decision regarding his fate;¹⁸³ second, petitioner displayed precisely the anti-social personality the prosecution argued petitioner possessed by laughing at and baiting the female prosecutor during his cross-examination, insisting that he had a non-violent record and that all the prosecution witnesses who testified otherwise were lying, and insisting that he would feel free to use force while in custody if the occasions arose in which he felt threatened;¹⁸⁴ and, finally, petitioner agreed with the prosecutor that anyone who could do what was done to Adria Sauceda was a dangerous person and deserved to die.¹⁸⁵ When petitioner's performance during his testimony is weighed in light of the ferocity of the assault upon Adria Sauceda and considered in view of her particularly vulnerable condition, i.e., both inebriated and high on cocaine, at the time petitioner took custody of her, there is no reasonable probability that any rational jury, having already convicted petitioner of the capital murder in question, would have answered the two capital sentencing special issues any differently than did petitioner's petit jury.

183 See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 92-98, 100-103, and 112-16.

184 See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at pp. 114-22.

185 Id., at pp. 116-17.

(4) Conclusions

The state habeas court reasonably concluded that petitioner's complaints about his counsel's conduct during voir dire failed to satisfy the prejudice prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's conduct during 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 habeas corpus proceeding.

f. Complaints About Uncalled Family Witnesses

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance failing to call several members of petitioner's family to testify at trial.¹⁸⁶ More specifically, petitioner suggests that his trial counsel should have called (1) petitioner's sister Nancy Leal to testify that she saw fresh blood on the pants of "Ralph" and Juan Francisco "Paco" Delgado when she and her brother Gualberto went to the party shortly after the petitioner arrived at their home;¹⁸⁷ (2) petitioner's brother Gualberto Leal to testify that he had also seen Ralph Guerrero and Juan Francisco "Paco" Delgado with "that girl's purse and all her stuff" and blood on their pants;¹⁸⁸ (3) petitioner's father Humberto Leal, Sr., to testify that he had found what turned out to be Adria Sauceda's brown blouse in the street outside his house the morning of the murder, he routinely hosed off his vehicles each morning and did so that morning without seeing any blood on or inside the Mercedes, and he used the Mercedes for deer hunting (which could explain the presence of blood inside and on that vehicle);¹⁸⁹ and (4) petitioner's mother Maria Francesca Garcia de Leal to testify that her husband found the blouse outside their home in the street and threw it into their yard.¹⁹⁰

186 See Petition, at pp. 88-95.

187 Nancy Leal testified, in pertinent part, during the petitioner's state habeas corpus hearing that (1) she saw fresh blood on the pants of both "Ralph" and "Paco," (2) she went to the party because the police were looking for her brother, i.e., the petitioner, and she wanted to know what had happened, (3) she suspected from the reactions of Ralph and Paco that they knew what had happened, (4) Ralph and Paco were burning papers and a lady's purse, (5) she did not speak with petitioner's lawyers prior to trial, (6) she told Jose Guerrero about her seeing blood on the pants of the two men, and (7) she told police about seeing the blood on the clothing of those two men. See S.F. State Habeas Hearing, Volume II of VII, testimony of Nancy Leal, at pp. 60-74.
What is most curious about Nancy Leal's testimony is the fact that she claimed to have gone to the party the morning of the murder, in part, because the police were looking for petitioner when, according to everyone at the party who testified at petitioner's trial, as well as the police officers who found Adria Sauceda's body, no one at the party knew Adria was dead until after Nancy and Gualberto Leal arrived and began asking questions. It is likewise clear from even a cursory review of the testimony from petitioner's trial that the police were not notified about Adria's death until some time after the discovery of her body, which occurred after Nancy and Gualberto arrived at the party and began asking questions. In short, in its face, Nancy' purported rationale for going to the party is inconsistent with all the other evidence introduced at trial, including petitioner's admission during his testimony that he left Adria unconscious and bleeding after he drove her several blocks from the party. Had Nancy Leal been called to testify at petitioner's trial, she would have been subject to a potentially devastating cross-examination concerning her reasons for going to the party in the morning after petitioner arrived home. Thus, while the state habeas court made no findings regarding same, even if petitioner's trial counsel were aware of the fact Nancy could have identified Paco and Ralph as having bloody pants shortly after Adria's murder, there might have been sound strategic reasons why petitioner's trial counsel would have chosen not to put Nancy Leal on the stand.
Furthermore, given petitioner's admissions to his trial counsel that he drove Adria away from the party, fought with and pushed her, and then abandoned her while she was unconscious and bleeding, petitioner's trial counsel may have felt it unwise or imprudent to present evidence that was inconsistent with the information said counsel had obtained from his client. Nothing in the Sixth Amendment requires a trial counsel to present evidence supporting defensive theories said counsel has reason to believe are wholly without factual basis in reality. Put more simply, 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. 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); and Jones v. Jones, 163 F.3d at 303.

188 At the hearing held in petitioner's state habeas corpus proceeding, Gualberto Leal testified, in pertinent part, that (1) he and his sister Nancy went to the party after petitioner returned home, (2) Ralph Guerrero and Juan "Paco" Delgado had the girl's purse and all her stuff, (2) the purse was in the top of the trees, (3) Paco and Ralph were burning pictures and other items they had taken from the girl's purse, (4) Paco had blood smeared on his right pants leg at the thigh while Ralph had blood splattered on his left leg at the ankle but neither man had a lot of blood on him, (5) Ralph attempted to explain the blood on his clothes by claiming he had a bloody nose while Paco attempted to explain away the blood on his clothing by claiming the girl had sat on his leg, (6) Gualberto cannot read and did not read either of the two statements he signed for police during his interview later that same day, and (7) both he and petitioner had been home since five that morning. See S.F. State Habeas Hearing, Volume III of VII, testimony of Gualberto Leal, at pp. 114-25. In addition, Gualberto Leal's affidavit, written solely in English, was admitted into evidence at the same hearing. His affidavit appears at S.F. State Habeas Hearing, Volume VII of VII, at pp. 19-20.
In his affidavit, Gualberto Leal states, in part, that petitioner came home stumbling, apparently drunk, mumbling "the girl, the girl," and speaking incoherently about a girl in a ditch. However, at petitioner's trial, Gualberto Leal (1) testified that he had been unable to understand a single word petitioner said when petitioner came home, (2) specifically denied that petitioner had said anything about leaving a body by a school, and (3) specifically denied that petitioner had said anything about killing a girl. See S.F. Trial, Volume XIV of XVIII, testimony of Gualberto Leal, at pp. 227-29. In view of the fact that Gualberto Leal was called to testify by the prosecution, and the obvious inconsistencies between Gualberto's post-conviction affidavit and his trial testimony, even assuming that petitioner's trial counsel were aware prior to trial that Gualberto could identify Paco and Ralph as having blood on their pants, there may have been valid strategic reasons for not calling Gualberto to testify as a defense witness at petitioner's trial. Furthermore, as explained in note 187, supra, petitioner's trial counsel was not required to present evidence suggesting the involvement of Paco or Ralph in Adria's murder when petitioner's statements to his trial counsel made it clear that petitioner was alone with Adria when she died.

189 At the petitioner's state habeas corpus hearing, Humberto Leal, Sr. testified, in pertinent part, that (1) he routinely washed the outside of the windshield and windows of his Mercedes every morning by spraying a water hose on same, (2) he used his Mercedes for deer hunting about four times and put the deer on or inside his car after he killed and gutted same, (3) he found a woman's blouse in the street outside his house on the morning in question and put it in the backyard, (4) his wife picked up the blouse and put it with other clothes that needed washing, (5) he told petitioner's attorney Jose Guerrero about finding the blouse, (6) he could not recall whether he told petitioner's attorneys about his habit of washing off his vehicles, and (7) he never saw any blood on the blouse. See S.F. State Habeas Hearing, Volume II of VII, testimony of Humberto Leal, Sr., at pp. 77-90.

190 At petitioner's state habeas corpus hearing, petitioner's mother testified that (1) her husband found Adria's blouse outside on the street and threw it into their yard, (2) she did not see any blood on it but put in with other clothes to be washed, and (3) she told the police and petitioner's attorney about her husband's discovery of the blouse. See S.F. State Habeas Hearing, Volume II of VII, testimony of Maria Francesca Garcia de Leal, at pp. 91-98.

(2) No Prejudice

Having independently reviewed the entire record from petitioner's trial, as well as from petitioner's state habeas corpus proceeding, this Court concludes, for the same reasons set forth at length in Section III.B.3.e. (3)(b) above, petitioner's complaints about his trial counsel's failure to call his four family members to testify in the manner set forth above all fail to satisfy the prejudice prong of Strickland. There is simply no reasonable probability that, but for the failure of petitioner's trial counsel to call petitioner's sister, brother, father, and mother to testify at petitioner's trial in the same manner they testified during petitioner's state habeas corpus hearing, the outcome of either phase of petitioner's trial would have been any different.¹⁹¹

191 On the contrary, as explained above in note 187, supra, Nancy Leal's assertion during her testimony at petitioner's state habeas corpus hearing that she and her brother Gualberto went to the Vincent Street party after their brother, the petitioner, arrived home because the police were looking for petitioner raises a host of potentially devastating avenues for cross-examination because it appears undisputed that, prior to the arrival of Gualberto and Nancy at the party, no one still remaining at that function was aware that Adria was dead. In short, had Nancy testified at petitioner's trial in the same manner that she testified at petitioner's state habeas corpus hearing, an astute prosecutor could have used her testimony to further inculpate petitioner. Furthermore, Gualberto's affidavit, introduced and admitted into evidence during petitioner's state habeas corpus proceeding, would have furnished the prosecution with further evidence to impeach Gualberto's claims that petitioner never confessed to having killed a girl.
Moreover, as explained in Section II.B.3.e. (3) (b) above, even disregarding the brown blouse bearing Adria's blood found by police inside the Leal home the afternoon following Adria's murder, the evidence of petitioner's guilt was overwhelming. There is no reasonable probability that a rational jury would have been swayed by the testimony of petitioner's family members to disregard the overwhelming body of circumstantial evidence, including petitioner's own written statements to police, that identified petitioner as the only person present with Adria when she was beaten and lost consciousness. There is no reasonable probability that, but for the failure of petitioner's trial counsel to call any of petitioner's family members to testify in the manner outlined above, the guilt-innocence phase of petitioner's trial would have been any different.
Furthermore, petitioner's own statements to his trial counsel convinced said counsel that petitioner was alone with Adria when she died. Even if a jury believed the testimony of petitioner's mother and father regarding the alleged discovery of Adria's brown blouse in a the street outside their home, rather than exonerating petitioner, that testimony would only have raised further issues as to how the blouse came to be located in the street outside the Leal home on Vincent Street when petitioner asserted during his testimony at the punishment phase of his trial that Adria was fully clothed when he allegedly left her lying unconscious several blocks away from his home following their scuffle. In short, an astute prosecutor could have used the testimony of petitioner's father and mother to impeach petitioner's account of what happened on the night in question. Therefore, there is no reasonable probability that, but for the failure of petitioner's trial counsel to call any of petitioner's family members to testify in the manner outlined above, the punishment phase of petitioner's trial would have been any different.

(3) Conclusions

Under the AEDPA, this Court's review of the state habeas court's rejection of petitioner's complaints about his trial court's failure to call petitioner's family members to testify at trial is limited to determining whether the state habeas court's ultimate decision to reject of those claims was objectively reasonable, not whether the state habeas court's rational in its written opinion was a sound one.¹⁹² Thus, this Court is not compelled to grant federal habeas relief simply because the state habeas court erroneously concluded that petitioner had failed to present evidence showing what testimony his family members could have furnished had they been called to testify at trial.¹⁹³ Rather, the question before this Court is whether the state habeas court's ultimate conclusion, i.e., that petitioner failed to satisfy the prejudice prong of Strickland with regard to his complaints of uncalled witnesses, was objectively reasonable.¹⁹⁴ For the reasons set forth above, petitioner's complaints about the failure of his trial counsel to call petitioner's family members to testify at petitioner's trial do not satisfy the prejudice prong of Strickland. Hence, the state habeas court's rejection of that aspect of petitioner's ineffective assistance claim was an objectively reasonable application of the prejudice prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's failure to call petitioner's family members to testify at petitioner's trial was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

192 See Poindexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir. 2003); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003):

[A] federal habeas court is authorized by Section 2254(d) to review only a state court's "decision," and not the written opinion explaining that decision. * * * [O]ur focus on the "unreasonable application" test under Section 2254(d) should be on the ultimate conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence. * * * Instead, the only question for a federal habeas court is whether the state court's determination is objectively unreasonable.

193 The state habeas court concluded its rejection of each of petitioner's complaints of ineffective assistance in connection with uncalled witnesses with the same cryptic statement indicating that petitioner had failed to present any evidence showing what favorable testimony each of these witnesses could have furnished at petitioner's trial. See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 247 and 252. However, as explained above, petitioner's sister, brother, father, and mother all testified extensively during petitioner's state habeas corpus proceeding. In fact, the state habeas trial court made extensive factual findings regarding the testimony of each of these witnesses during petitioner's state habeas corpus hearing. Id. , at pp. 240-46 and 248-52. Thus, there was no failure on petitioner's part to present evidence regarding what their testimony would have been had they testified at petitioner's trial.

194 See Poindexter v. Dretke, 346 F.3d at 148; Anderson v. Johnson, 338 F.3d at 390; Neal v. Puckett, 286 F.3d at 246.

g. Complaints Re Failure to Present Physical Evidence

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance failing to present available evidence showing that (1) no fingerprints had been obtained from the stick that was inserted into Adria Sauceda's vagina, (2) no spermatozoa were found on an anal swab taken during Adria's autopsy, and (3) pubic and head hair found on Adria's body did not match those of petitioner.¹⁹⁵

195 See Petition, at pp. 95-98.

(2) No Prejudice

There is no genuine dispute that police were unable to identify and lift any legible fingerprints from the stick they found inserted in Adria Sauceda's vagina.¹⁹⁶ However, petitioner does not allege any specific facts showing that the absence of any legible or lift-able fingerprints on the stick was exculpatory or mitigating in nature. Given the overwhelming evidence against petitioner, there is no reasonable probability that evidence showing the absence of legible fingerprints on the stick would have had any impact upon a rational jury's verdict at either phase of petitioner's trial.

196 Prosecuting attorney Robert A. McClure, II, testified during petitioner's state habeas corpus hearing that (1) insufficient ridges were found on the stick to permit fingerprint analysis, (2) all attempts to lift a print from the stick proved negative, and (3) the foregoing information was passed on to petitioner's trial counsel. See S.F. State Habeas Hearing, Volume III of VII, testimony of Robert A. McClure, II, at p. 131.

There likewise appears to be no genuine dispute that, while initial examination of Adria Sauceda's body by the medical examiner disclosed sperm cells in rectal swabs and rectal smears,¹⁹⁷ subsequent examination of the swabs for purposes of extracting DNA from same revealed no sperm cells and the jury was made aware of these both facts.¹⁹⁸ Petitioner's trial counsel can hardly be faulted for failing to introduce evidence that was already in the trial record. Moreover, there is no reasonable probability that re-submission of this same evidence would have resulted in a different verdict at either phase of petitioner's capital murder trial.

197 At trial, Bexar County chief serologist Lonnie Ginsberg testified that his microscopic examination of the rectal swabs and rectal smears obtained during Adria Sauceda's autopsy disclosed sperm cells. See S.F. Trial, Volume XV of XVIII, testimony of Lonnie Ginsberg, at pp. 462-63.

198 At trial, DPS serologist Donna Stanley testified that when she examined the swabs under the microscope, she was unable to identify any sperm cells. See S.F. Trial, Volume XV, testimony of Donna Stanley, at pp. 568-69. Thus, the jury was aware that no sperm had been found in the anal swab.

Finally, while there was evidence introduced at petitioner's state habeas hearing showing that pubic hairs and a long strand of hair were observed on the left leg and right knee, respectively, of Adria Sauceda at the crime scene,¹⁹⁹ petitioner offered the state habeas court absolutely no evidence showing that any subsequent examination, identification, or comparison of those hairs was undertaken by any person. Thus, petitioner failed to demonstrate that any possible benefit would have resulted had his trial counsel further investigated those hairs.²⁰⁰

199 At petitioner's state habeas corpus hearing, Bexar County forensic investigator Frank Tovar testified that he photographed Adria Sauceda's body at the crime scene and observed some pubic hairs on her left leg and a long strand of hair on her right knee and that those hairs were brought back along with her body. See S.F. State Habeas Hearing, Volume III of VII, testimony of Frank Tovar, at pp. 5-6.

200 Moreover, given the fact that several young men were observed having or attempting intercourse with Adria Sauceda earlier that evening in the bushes behind the party on Vincent Street and, subsequently, in a truck parked in a nearby driveway, subsequent examination of the pubic hairs in question which failed to show a match with petitioner's hair would not, standing alone, have been of any exculpatory or mitigating value at petitioner's trial.

This Court has independently reviewed the entire record from petitioner's trial and state habeas corpus proceeding and concludes that, in view of the overwhelming evidence supporting the jury's verdict at both phases of petitioner's trial, there is no reasonable probability that, but for the failure of petitioner's trial counsel to present any of the foregoing evidence, the outcome of either phase of petitioner's trial would have been any different.

(3) Conclusions

Once again, this Court must evaluate not the state habeas court's rational for rejecting this aspect of petitioner's ineffective assistance claim but, rather, the objective reasonableness of same.²⁰¹ In view of this Court's independent determination that petitioner's complaints about his trial counsel's alleged failure to present the physical evidence in question at trial all fail to satisfy the prejudice prong of Strickland, the state habeas court's rejection of that aspect of petitioner's ineffective assistance claim was an objectively reasonable application of the prejudice prong of Strickland. For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's alleged failure to present the physical evidence in question was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

201 See Poindexter v. Dretke, 346 F.3d at 148; Anderson v. Johnson, 338 F.3d at 390; Neal v. Puckett, 286 F.3d at 246.

h. Complaints Re Melissa Ruiz's Testimony

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance failing to (1) investigate the allegations against petitioner made by prosecution witness Melissa Ruiz and (2) thereby discover a witness statement by one Joe Bernal indicating that Bernal had seen Ruiz and petitioner together on the weekend she ran away from home and that Ruiz had not appeared scared or unhappy.²⁰²

202 See Petition, at pp. 98-100.

(2) No Deficient Performance

The state habeas court concluded that petitioner's trial counsel did not render deficient performance with regard to investigating Melissa Ruiz's allegations against petitioner.²⁰³

203 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at p. 257.

Petitioner's trial counsel challenged Melissa Ruiz's testimony by two means. First, said counsel called petitioner's brother Carlos, who testified that, beginning in the Fall of 1993 and continuing into 1994, Melissa Ruiz gave him love letters for him to deliver to petitioner and that when Carlos informed Melissa that he would no longer deliver further letters, she became angry.²⁰⁴ Second, petitioner testified that he did not rape Melissa Ruiz but probably did himself as much harm as good by volunteering on cross-examination that he had "made out" with her and the reason he had failed to have complete sexual relations with her was that she pushed him off of her before he achieved penetration.²⁰⁵ Petitioner presented the state habeas court with no evidence showing that Bernal possessed any personal knowledge regarding what actually transpired between petitioner and Melissa Ruiz when they were at petitioner's house.

204 See S.F. Trial, Volume XVII of XVIII, testimony of Carlos Leal, at pp. 129-30.

205 See S.F. Trial, Volume XVII of XVIII, testimony of Humberto Leal, Jr., at p. 120.

Under such circumstances, the state habeas court's conclusion that petitioner failed to show deficient performance by his trial counsel in connection with the testimony of Melissa Ruiz was an objectively reasonable application of the first prong of Strickland.

(3) No Prejudice

The state habeas court concluded that petitioner failed to show prejudice with regard to his trial counsel's alleged failure to investigate Melissa Ruiz's allegations.²⁰⁶

206 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at p. 257.

Petitioner presented the state habeas court with absolutely no evidence showing that Joe Bernal was either available at the time of petitioner's trial (in July, 1995) or willing to give sworn testimony along the lines of the statement he gave to police on June 13, 1994. In fact, Bernal did not testify during petitioner's state habeas corpus hearing. Thus, it is unclear whether the alleged failure of petitioner's trial counsel to investigate and discover Bernal's statement actually harmed petitioner.

Furthermore, Joe Bernal's observations about Ruiz's demeanor on the occasions in question, set forth in his two-page statement admitted into evidence during petitioner's state habeas corpus hearing, establish only that Melissa Ruiz did not appear to him to be frightened of petitioner after she and petitioner disappeared from the party for an unspecified period of time and then returned.²⁰⁷ In light of the uncontested medical evidence of the sexual assault upon Melissa Ruiz fully developed at petitioner's trial,²⁰⁸ as well as the other evidence elicited during both phases of petitioner's trial summarized in Section III. B. 3. e. (3)(b) above, there is no reasonable probability that, but for the failure of petitioner's trial counsel to investigate further and discover Bernal's statement, the outcome of the punishment phase of petitioner's trial would have been any different.²⁰⁹

207 Bernal's statement indicates that (1) he saw petitioner and Melissa Ruiz leave the party together, (2) he did not know where they went, (3) at some time later, he saw them return to the party while holding hands, (4) he saw what he termed "hickies" all over 15-year-old Melissa Ruiz's neck after Ruiz and petitioner returned to the party, (5) Ruiz and petitioner appeared to be happy to be together, and (6) Ruiz did not appear to him to be scared of petitioner. See Statement of Joe Bernal, S.F. State Habeas Hearing, Volume VII of VII, at pp. 158-59.

208 Photographic evidence and medical testimony at petitioner's trial established that Melissa Ruiz had been bitten on the neck with sufficient force to half left bruises that were readily apparent several days thereafter. See State Exhibit Nos. 106 and 107, found at S.F. Trial, Volume XVIII of XVIII, at p. 110. In addition, Dr. Lizette Gomez, who conducted a sexual assault examination on Melissa Ruiz, offered unchallenged testimony regarding the injuries Melissa sustained. See S.F. Trial, Volume XVII of XVIII, testimony of Lizette Gomez, at pp. 31-39. Specifically, Dr. Gomez observed lacerations and bruising to Melissa's vaginal area. Id. , at p. 39. The medical records from Dr. Gomez's examination of Melissa Ruiz were also admitted into evidence at petitioner's trial as State Exhibit No. 105.See S.F. trial, Volume XVII of XVIII, testimony of Rosa M. Villarreal, at p. 21. The medical records from Dr. Gomez's examination of Melissa Ruiz appear at S.F. Trial, Volume XVIII of XVIII, at pp. 89-109.

209 Most significantly, Bernal did not purport to have any personal knowledge of the death threats allegedly made by petitioner to Melissa Ruiz's sister.

Under such circumstances, the state habeas court's conclusion that petitioner failed to satisfy the prejudice prong of Strickland in connection with the testimony of Melissa Ruiz was an objectively reasonable application of the second prong of Strickland.

(4) Conclusions

For the foregoing reasons, the state habeas court's rejection on the merits of petitioner's complaints about his trial counsel's alleged failure to investigate the allegations of Melissa Ruiz was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's state habeas corpus proceeding.

i. Complaints Re Improper Prosecutorial Jury Argument

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance failing to object to improper prosecutorial jury argument that (1) injected the prosecutor's personal opinion into the case at the punishment phase of trial, (2) argued outside the record, urged the jury to return a verdict on behalf of the community, and urged vengeance on behalf of the victim's family at the punishment phase of trial, (3) suggested at the guilt-innocence phase of trial that petitioner had sodomized Adria Sauceda, and (4) suggested at the guilty-innocence phase of trial that the jury consider Gualberto Leal's hearsay statements regarding petitioner's alleged admissions as substantive evidence of petitioner's guilt.²¹⁰

210 See Petition, at pp. 101-04.

(2) Holding in Petitioner's State Habeas Proceeding

In the course of petitioner's state habeas corpus proceeding, the state habeas trial court found that (1) the prosecutor injected his own personal opinion into the case, (2) the prosecutor argued outside the record, (3) despite prosecutorial argument to the contrary, there was no evidence showing the petitioner bore any relationship to the sperm allegedly found in Adria Sauceda's anal swab, and (4) petitioner's trial counsel failed to object to any of the foregoing jury arguments by the prosecution.²¹¹ Nonetheless, the state habeas trial court concluded that petitioner's complaints about his trial counsel's failure to object to the improper jury arguments in question did not establish that petitioner's trial counsel rendered ineffective assistance.²¹²

211 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 258-61. The state habeas trial court made no specific findings regarding petitioner's complaint that the prosecution had improperly urged the jury to find petitioner's guilty based on the hearsay-within-hearsay written statement of Gualberto Leal (attributing certain inculpatory admissions to petitioner) offered and admitted for the sole purpose of impeaching Gualberto Leal when he denied having made the statements in question to witnesses at the Vincent Street party.

212 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at p. 261. The state habeas trial court's tacit factual findings amount to an acknowledgment that petitioner's trial counsel failed to object to what that court believed was improper jury argument by the prosecution. This Court can only construe the state habeas court's findings as a determination that petitioner satisfied the first prong of Strickland, i.e., the deficient performance standard, with regard to this aspect of his ineffective assistance claim. Thus, the state habeas court's ultimate rejection of this aspect of petitioner's ineffective assistance claim necessarily implies that the state habeas court concluded petitioner's complaints about his trial counsel's failure to object to the prosecutorial jury argument in question did not satisfy the prejudice prong of Strickland.
Respondent's motion for summary judgment correctly points out the standard for evaluating whether a defendant's complaints about a prosecutor's jury arguments justify a new trial under due process principles but fails to focus on the fact that petitioner is urging a Sixth Amendment ineffective assistance claim, not a due process claim. See Motion for Summary Judgment, at pp. 50-52.

(3) No Prejudice

Having independently reviewed the entire record from petitioner's trial, this Court finds wholly reasonable and compelling the state habeas court's conclusion that this aspect of petitioner's ineffective assistance claim fails to satisfy the prejudice prong of Strickland.

(a) No Prejudice at Guilt-Innocence Phase

As explained in Section III.B.3.e.(3)(b) above, the evidence of petitioner's guilt, while largely circumstantial, was overwhelming. Even disregarding the statement allegedly made by petitioner to his brother Gualberto and allegedly related by Gualberto to several persons at the Vincent Street party, the evidence of petitioner's guilt was unassailable. Petitioner was the last person seen with Adria Sauceda when she was alive. Petitioner admitted to police that he was alone with her when he had pushed her and shook her and that, until he saw blood bubbling from her face and felt blood on her head, he abandoned her. Petitioner offered no evidence at the guilt-innocence phase of his trial controverting any of the critical testimony of Simon Ortega or Mirasol Torres regarding Adria Sauceda's vulnerable condition at the time petitioner drove her away from the party. Nor was there any evidence establishing that anyone else had the opportunity to cause Adria's death after petitioner took her away from the party.²¹³ The extent and brutality of Adria's injuries and the lewd condition of her corpse upon its discovery in an open field offered damning evidence that her death was not an accident, as petitioner claimed but, rather, the product of an application of violence that remains utterly incomprehensible to this Court. At the time the state trial court admitted Gualberto Leal's written statements to the police, which included recitations of petitioner's inculpatory comments after he arrived home allegedly covered in blood, the state trial court instructed the jury that it should consider Gualberto's inconsistent written statements only insofar as they reflected on Gualberto's credibility.²¹⁴ However, because Simon Ortega's testimony regarding Gualberto's excited utterances to the remaining party-goers were apparently admitted under a different exception to the hearsay rule,²¹⁵ no similar limiting instruction was requested or given when that testimony was admitted.²¹⁶ Under such circumstances, the failure of petitioner's trial counsel to object when the prosecutor urged the jury to consider Gualberto Leal's statements as indicating petitioner's guilt did not "prejudice" petitioner within the meaning of Strickland.

213 Petitioner drove Adria away from the party and, a relatively short time later, petitioner's brother and sister arrived at the party in a highly agitated state and demanded to know what had happened to petitioner. See S.F. Trial, Volume XIV of XVIII, testimony of Simon Ortega, at pp. 249-53; and Id. , Volume XIII of XVIII, testimony of Mirasol Torres, at pp. 37-41. There was no evidence suggesting that either of two persons on whom petitioner's family subsequently attempted to pin suspicion, i.e., Ralph Guerrero or Juan Francisco "Paco" Delgado, ever left the Vincent Street party between the time of petitioner's departure with the still-living Adria Sauceda and the time of the arrival of petitioner's brother and sister. Nor was there any evidence showing that anyone other than petitioner had any knowledge of Adria Sauceda's whereabouts between the time petitioner drove Adria away from the party and the time petitioner arrived back at his home.

214 See S.F. Trial, Volume XIV of XVIII, testimony of David Evans, at p. 339.

215 See S.F. Trial, Volume XIV of XVIII, testimony of Simon Ortega, at pp. 247-52.

216 Petitioner does not fault his trial counsel for failing to request a limiting instruction in connection with the testimony of Simon Ortega relating Gualberto Leal's statements to the party-goers shortly after petitioner left the party with Adria Sauceda.

Likewise, the prosecutor's suggestion that anal swabs taken during Adria Sauceda's autopsy were suggestive of an attempted anal rape did not "prejudice" petitioner within the meaning of Strickland. During the guilt-innocence phase of petitioner's capital murder trial, Bexar County chief serologist Lonnie Ginsberg testified that his microscopic examination of the rectal swabs and rectal smears obtained during Adria Sauceda's autopsy disclosed sperm cells.²¹⁷ DPS serologist Donna Stanley later testified at the same phase of petitioner's trial that, when she examined the swabs under the microscope, she was unable to identify any sperm cells.²¹⁸ Thus, the jury was aware that no sperm had been found in the anal swab by DPS personnel.²¹⁹ Even if petitioner's trial counsel had made a timely objection to the prosecution's allegedly improper argument, there is little possibility the trial court would have done anything more than sustained the objection and reminded the jury that they, and not the attorneys, were the ultimate arbiters of what the evidence showed. In any event, the evidence concerning the results of the different examinations of the anal swabs or smears was so tangential to the prosecution's case at the guilt-innocence phase of petitioner's trial that it highly unlikely that even a successful objection to the prosecution's allegedly improper inference from the evidence in question would have deterred the jury from recognizing the tidal wave of circumstantial evidence showing the petitioner's guilt.

217 See S.F. Trial, Volume XV of XVIII, testimony of Lonnie Ginsberg, at pp. 462-63.

218 See S.F. Trial, Volume XV, testimony of Donna Stanley, at pp. 568-69.

219 In fairness to all concerned, the testimony of prosecution witnesses Ginsberg and Stanley with regard to the anal swabs was far from crystal clear. For instance, Mr. Ginsberg appeared to testify that he had observed sperm cells when he examined anal smears obtained during Adria Sauceda's autopsy.See S.F. Trial, Volume XV of XVIII, testimony of Lonnie Ginsberg, at pp. 462-63. However, Ms. Stanley was adamant that she could find no sperm cells on the anal swabs when she examined same. See S.F. Trial, Volume XV, testimony of Donna Stanley, at pp. 568-69. It is far from clear to this Court whether Mr. Ginsberg and Ms. Stanley were, in fact, testifying they had reached different conclusions after examining the same item or whether they each examined different items, i.e., in Mr. Ginsberg's case the anal smears and in Ms. Stanley's case the anal swabs.

(b) No Prejudice at Punishment Phase

Also as explained in Section III.B.3.e. (3)(b) above, the evidence supporting the jury's verdict on the two capital sentencing special issues was likewise overwhelming. Perhaps the most damning evidence introduced at the punishment phase of petitioner's trial consisted of petitioner's own refusal during his testimony to either make a sincere expression of remorse or acknowledge responsibility for his unfathomably brutal treatment of an inebriated sixteen-year-old. Instead of making a plea for mercy, petitioner's insolent demeanor during his testimony furnished the prosecution with an evidentiary basis upon which to argue that petitioner had not accepted responsibility for his crime and would pose a risk of future dangerousness.²²⁰ Moreover, even if petitioner's trial counsel had objected to the improper closing comments made by the prosecution during the punishment phase of trial, there is no reasonable probability that the outcome of that phase of petitioner's capital murder trial would have been any different. Again, even if the trial court had sustained objections to the prosecutor's injecting his own opinion into the case and arguing outside the record by urging the jury to consider the victim's family's need for vengeance, there is little probability the trial court would have done anything more after sustaining the objections than direct the jury to disregard same. The prosecution's closing jury arguments at the punishment phase of trial about which petitioner now complains were, like those at the guilt-innocence phase of his trial about which petitioner now complains, tangential to the thrust of the prosecution's closing argument, which was to focus the jury on the overwhelming evidence of petitioner's violent propensity and the lack of any "mitigating evidence" in the record worthy of the name. Under such circumstances, there is no reasonable probability that, but for the failure of petitioner's trial counsel to object to either of the two improper comments made by the prosecution, the outcome of the punishment phase of petitioner's trial would have been any different.

220 See S.F. Trial, Volume XVII of XVIII, at pp. 141-42:

I will remind you that each and every one of you answered that, if circumstances were sufficient, you could find that a person could be deemed to be a future danger, based on one act alone.

Now, having said that, I will also remind you that this is not the only time that Humberto Leal has demonstrated his capacity for violence, his disrespect for women, his disrespect for authority. And you have heard witnesses to that effect.

You have witnessed his demeanor in the courtroom and you have seen that the fact that, two weeks before this offense, he raped another girl of similar age, picked up at the same party, under identical circumstances, was nothing to him. It means nothing to him.

And the only difference, I submit to you, between Melissa Ruiz and Adria Sauceda has to do with the relative level of their intoxication. And the personalities, the individual characteristics that they possessed when faced in that position.

Because Melissa Ruiz just laid there. She didn't do a thing. She didn't say a word. She was literally scared to move, to scream, to fight. And I submit to you that that is why she was here to tell us about what happened to her.

Because Adria Sauceda, bless her heart, was too drunk to realize the danger that she was in. And she fought him off like a tiger and she paid for that with her life.

The foregoing arguments by the prosecution at the punishment phase of petitioner's capital murder trial accurately summarized, and drew logical inferences from, the evidence then before the jury.

(4) Conclusions

For the foregoing reasons, the state habeas court's rejections on the merits of petitioner's complaints about his trial counsel's failures to object to improper prosecution closing arguments at both phases of petitioner's capital murder trial were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States nor an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial and state habeas corpus proceeding.

j. Failure to Request Instruction on Reckless Homicide

(1) Petitioner's Specific Contentions

Petitioner argues that his trial counsel rendered ineffective assistance failing to request a jury instruction on the lesser-included offense of involuntary manslaughter.²²¹

221 See Petition, at pp. 105-06.

(2) State Habeas Disposition

In the course of petitioner's state habeas corpus proceeding, the state habeas trial court specifically found that Adria Sauceda died as a result of severe blunt trauma to the front of her head which caused injuries to her brain.²²² This Court's independent review of the record from petitioner's trial confirms the validity of this factual finding.²²³ The state habeas court concluded that, under applicable Texas, petitioner was not entitled to a jury instruction on the lesser-included offense of involuntary manslaughter, i.e., reckless homicide, and, therefore, petitioner's trial counsel did not render ineffective assistance by failing to request such an instruction.²²⁴ Implicit in that conclusion are determinations by the state habeas court that this aspect of petitioner's ineffective assistance claim satisfies neither prong of Strickland.

222 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at p. 262.

223 Dr. DiMaio testified that Adria Sauceda had sufferedmultiple, severe injuries to her face, multiple blows to her back and shoulders from an edged object, bruising in the vagina consistent with a stick containing a screw having been inserted inside her while she was alive, and multiple bite marks to her neck, chest and possibly her face. See S.F. Trial, Volume XV of XVIII, testimony of Vincent DiMaio, at pp. 606-16. In addition, the fingernails on the middle fingers of both her hands had been ripped or torn off. Id. , at pp. 617-18. In sum, the physical evidence simply did not support petitioner's unsubstantiated claim, in one of his written statements to police, that he had pushed Adria while they were fighting and she fell down, landing on the back of her head. On the contrary, Dr. DiMaio was very clear that (1) Adria had suffered numerous blows to the front of her head, i.e., to her face, applied with a tremendous amount of force, sufficient to massive injuries to her brain, including damage to the white matter deep inside that organ; (2) Adria's injuries were inconsistent with her merely having suffered an injury in a fall; and (3) a minimum of three blows would have been necessary to cause Adria's facial and shoulder injuries. Id. , at pp. 620-23. Furthermore, Dr. DiMaio opined that some of Adria's injuries had been caused while she was standing upright while some had occurred after she was laying on her back. Id.

224 See State Habeas Findings Conclusions, S.F. State Habeas 5-21-99 Transcript, Volume 2 of 2, at pp. 262-63.

(3) No Deficient Performance

Having independently reviewed the evidence from the guilt-innocence phase of petitioner's trial, this Court concludes that the state habeas court acted in an objectively reasonable manner when it implicitly determined that petitioner's trial counsel did not render deficient performance by failing to request a jury instruction on involuntary manslaughter.

(a) No Right to Instruction Under Texas Law

Under Texas law, at the time of petitioner's offense, a person committed the offense of "involuntary manslaughter" by recklessly causing the death of another person.²²⁵ 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.²²⁶ As explained above, there was no evidence before the jury at the guilt-innocence phase of petitioner's capital murder trial even remotely suggesting that the conduct which actually caused the death of Adria Sauceda had been merely "reckless" in nature. While petitioner did admit that he had pushed Adria, she had fallen, and, thereafter, she was unable to get up or regain consciousness, the evidence elicited from Dr. DiMaio established without contradiction that the severe facial and brain injuries which actually caused Adria Sauceda's death were the products of multiple applications of a tremendous amount of force to her face and head with a blunt object and could not have resulted from the single push and fall described by petitioner in his written statement to police.²²⁷ Petitioner's trial counsel acted in an objectively reasonable manner in not requesting a jury instruction on a lesser-included offense that was without evidentiary support in the record.²²⁸

225 Petitioner's offense occurred May 21, 1994. As of that date, the offense of "involuntary manslaughter" was defined byformer Section 19.05 of the Texas Penal Code. See former Section 19.05(a) (1), Texas Penal Code Annotated (Vernon 1989).Former Section 19.05 (a) (1) provided in pertinent part that a person committed an offense if he recklessly caused the death of an individual. Id.. As of the date of petitioner's offense, Texas Penal Code Section 6.03(c) provided, just as it still does, that a person acts "recklessly" or was "reckless" with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or that the result will occur. See Tex. Pen Code Ann. § 6.03(c) (Vernon 2003).
The Texas Penal Code provision defining the former offense of "involuntary manslaughter," i.e., former Section 19.05, was re-designated as new Section 19.04 and re-titled "Manslaughter" effective September 1, 1994. See Ybarra v. State, 890 S.W.2d 98, 110 n. 9 Tex. App. — San Antonio 1994, petition ref'd).

226 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).

227 See note 223, supra.

228 Contrary to the suggestions contained in petitioner's pleadings in this Court, none of the authorities relied upon by petitioner support the proposition that a lesser-included offense instruction is mandated under Texas law in a murder case where the victim's death resulted from multiple blows from a blunt object.

FINAL JUDGMENT

This federal habeas corpus action, filed pursuant to Section 2254 of Title 28, United States Code, came for consideration before the Court. In a Memorandum Opinion and Order issued contemporaneously with this Judgment, this Court has rendered a final decision on all issues pending in this cause.

It is ORDERED and ADJUDGED that:

1. All relief requested in petitioner's federal habeas corpus petition is DENIED with prejudice.

3. Petitioner is DENIED a Certificate of Appealability.

4. All other pending motions are DISMISSED AS MOOT.

5. The parties shall bear their own costs, respectively.