Barrientes v. Johnson

REVISED - 9/5/00

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-40348

_____________________

ANTONIO BARRIENTES

Petitioner - Appellee-Cross-Appellant

v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION

Respondent - Appellant-Cross-Appellee

_________________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________________________________________________

August 7, 2000

Before KING, Chief Judge, and SMITH and STEWART, Circuit Judges.

KING, Chief Judge:

In this habeas case, the district court granted relief on

six claims related to the penalty phase of Petitioner Antonio

Barrientes’s capital murder trial and vacated Barrientes’s death

sentence. The court denied all other claims and an application

for a certificate of probable cause. Respondent Gary L. Johnson,

Director, Texas Department of Criminal Justice, Institutional

Division, appeals from that portion of the district court’s order

granting relief, and Petitioner applies for a certificate of

probable cause to appeal ten claims upon which relief was denied.

With regard to the Director’s appeal, we reverse the district

court as to one claim, vacate that portion of the district

court’s order granting relief on the remaining five claims, and

remand for an evidentiary hearing. Treating Petitioner’s

application for a certificate of probable cause as an application

for a certificate of appealability, we deny his application.

I. FACTUAL BACKGROUND

In 1985, Petitioner Antonio Barrientes and a co-defendant,

David Gonzales, were convicted of the capital murder of Jose

Arredondo, who, while working as a clerk at the Fina-Jamco

convenience store in Brownsville, Texas, was shot in the head

four times. Arredondo was found in the cooler of the store by a

relative of the store’s owner.

Felix Sanchez, who had known Barrientes for twenty-five

years, testified during the guilt/innocence phase of the trial

that he walked into the store on the afternoon of the murder to

purchase gas. He did not see a clerk, so he banged his hand on

the counter. Barrientes popped up from behind the counter and

Sanchez asked him when he had started working there. Barrientes

responded, “Be quiet. I’m in the middle of a robbery.” Sanchez

told Barrientes that he wanted no part of it, turned, and began

walking toward the door. He heard Barrientes say that he,

2

Barrientes, had to “shoot the son-of-a-bitch.” As Sanchez was

opening the front door, he saw Barrientes pushing a dark-haired

individual from the stockroom into the cooler; he then heard two

shots.

Sanchez got in his car and began to drive away. Remembering

that his gas gauge was on empty, he made a U-turn and drove to

another gas station across the street from the Fina-Jamco store.

While there, he noticed a few people enter and leave the Fina-

Jamco store. He then noticed Barrientes leaving with a cardboard

box and watched him until he disappeared into an alley next to

the store. Sanchez got in his car and began driving home. On

his way, he saw Barrientes get into the passenger seat of

Gonzales’s car. Gonzales was at the wheel.

Sanchez testified that he returned to his mother’s house,

where he was living at the time, and that he saw Gonzales’s car

in the alley behind the house. Barrientes and Gonzales were in a

neighbor’s yard watching Sanchez until the neighbor called them

away. Sanchez then left to take his mother to an appointment at

a hospital in Galveston, an eight or nine hour drive from

Brownsville. Along the way, he told his mother what he had seen,

and she convinced him to tell the police. Later that night, he

flagged down a highway patrolman and gave a videotaped statement

at a police station about five hours from Brownsville. He gave

another statement several weeks later.

3

On cross-examination, Barrientes’s counsel and Gonzales’s

counsel attacked discrepancies between Sanchez’s earlier

statements and his testimony. Sanchez explained that he had been

tired, confused, and nervous during his previous statements.

Gonzales’s counsel also attacked Sanchez’s unwillingness to speak

with the defense prior to the trial.

Two other witnesses testified that they went into the Fina-

Jamco store on the afternoon of the murder and that Barrientes

was working behind the counter, did not know how to operate the

cash register, and appeared under the influence of drugs.

Another State witness, David Meza, testified that while in county

jail on a DWI charge, Barrientes confessed the murder to him on

two separate occasions. The prosecutor elicited testimony that

because of overcrowding Meza was on a floor of the jail reserved

for murderers. On cross-examination, Barrientes’s counsel

inquired how the confession was brought to the attention of

authorities, and Meza responded that he had only repeated the

story to a friend of his, a man whom Barrientes had once shot in

the leg.

The defense presented only two witnesses. The first was an

employee from the county jail who testified that Meza’s booking

card showed that he was assigned to a floor separate from the

floor where suspected murderers were housed. On cross-

examination, the witness admitted that, due to overcrowding, Meza

could have been switched to a different floor from that noted on

4

his booking card, and that his booking card might not have been

changed to reflect the switch.

The second witness was Barrientes. He admitted to being in

the Fina-Jamco store on the day of the murder, but explained that

he had gone there to buy beer and had discovered Felix Sanchez in

the store holding a cardboard box with beer, cigarettes, and a

money bag in it. Sanchez left and Barrientes stayed behind at

Sanchez’s request to open the cash register and steal money from

it. While attempting to do this, two customers came in and he

waited on them.

During the penalty phase of the trial, several police

officers testified in summary fashion that the defendants’

reputations in the community for being peaceful and law-abiding

citizens were bad. Two witnesses, including an investigator for

the district attorney’s office, Joe Garza, testified that during

the trial, Barrientes threatened to “take care” of Felix Sanchez.

Garza further testified that he had arrested Barrientes for

capital murder in 1979, that the case was still pending, and that

a witness in the case had disappeared (the “1979 Unadjudicated

Murder”).1

1

The prosecution also presented evidence that Gonzales had

been convicted of three prior felonies, two of which were for

possession of marijuana. Barrientes’s counsel, Mr. Davidson,

had, while working in the prosecutor’s office many years before,

prosecuted Gonzales on one of the marijuana charges. Davidson

testified on behalf of Gonzales during the penalty phase of this

trial that the marijuana charge would now be considered a

misdemeanor. Other than Davidson, no witness testified for

5

During closing, the prosecutor commented on the 1979

Unadjudicated Murder as follows:

Well, you heard Mr. Garza get up and testify that he

arrested Barrientes back in ‘79 for another capital murder

but that the witness disappeared in that. I’ll leave that

to your thoughts. Another capital murder in 1979.

Here we are again with another capital murder. What’s

next? A witness disappeared. I wonder where the witness

is. I wonder. He knows. He knows where the witness is as

he sits there right now. He knows. He knows.

. . . .

. . . You tell me what justice is. We’ve got one

capital murder in 1979 where the witness disappeared.

God knows where the witness is in that case. He may be

in a cooler somewhere, although not in a store. He may be

somewhere where no one would ever find him.

State Record Vol. IX, at 41. The prosecutor continued during

surrebuttal:

Mr. Davidson talked to you about the only witness [to

the 1979 Unadjudicated Murder], that I’d like you to believe

he’s dead and buried. Since he brought it up he probably is

dead and buried. Probably is.

Innuendo? He was arrested for capital murder and the

witness is gone. I’m not going to yell and scream about

that. You believe what you want to about that. That’s up

to you. You saw what he’s done. You saw what he did to Joe

Arredondo.

What’s he going to do to Felix Sanchez? What’s he

going to do to Felix Sanchez, the one who identified him?

He was so high on heroin that he didn’t know enough to go

ahead and kill Felix Sanchez.

Thank God he was high on heroin, otherwise Sanchez

would probably be dead now. He would be another witness

that would be dead, and then I guess at that point the State

either defendant at the penalty phase.

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would have some more innuendo, as Mr. Davidson says, because

we’d not have the witness.

Id. at 53. After the penalty phase concluded, Barrientes was

sentenced to death and Gonzales was sentenced to life in prison.

II. PROCEDURAL BACKGROUND

Barrientes appealed from his conviction, and the Texas Court

of Criminal Appeals affirmed. See Barrientes v. State, 752

S.W.2d 524 (Tex. Crim. App. 1987). His subsequent petition for

writ of certiorari was denied by the United States Supreme Court.

See Barrientes v. Texas, 487 U.S. 1241 (1988).

Barrientes filed a state post-conviction petition for a writ

of habeas corpus in August 1988 (the “First State Petition”).

The petition raised a multitude of claims, including

prosecutorial misconduct, ineffective assistance of counsel,

insufficient evidence at the penalty phase of the trial, improper

jury consideration of facts not presented at trial, and various

attacks on the Texas capital sentencing statute. The Court of

Criminal Appeals stayed his execution and ordered an evidentiary

hearing on the ineffective assistance of counsel claims. The

evidentiary hearing was held before the same state district judge

who had presided at Barrientes’s capital murder trial. After

entering findings of fact and conclusions of law, the state

district court recommended denial of relief. In early 1989, the

Texas Court of Criminal Appeals denied relief on all grounds,

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with two judges dissenting. See Ex parte Barrientes, No. 19,007-

01, order at 2 (Tex. Ct. Crim. App. Feb. 1, 1989).

On March 8, 1989, Barrientes filed his first federal

petition for habeas corpus in the United States District Court

for the Southern District of Texas. The claims raised in this

petition were substantially the same as the claims raised in his

First State Petition. The petition was amended in April 1992

(the “Amended First Federal Petition”), based upon evidence

obtained by Barrientes’s habeas counsel. The Amended First

Federal Petition contained additional factual allegations

regarding the 1979 Unadjudicated Murder, allegations that Meza’s

testimony was coerced, and allegations that Sanchez’s mother and

wife would have, if called to testify, contradicted his

testimony. Attached to the petition were an affidavit from

Sanchez’s mother and copies of the contents of the Cameron County

Sheriff’s Office’s file on the 1979 Unadjudicated Murder (the

“Sheriff’s File” or the “File”).

Because the Sheriff’s File sits at the center of the

principal dispute in this case, a description of its salient

inculpatory and exculpatory contents is warranted.2 The File

2

We provide that description, however, with several

caveats. First, Barrientes provides no affidavit authenticating

the photocopied documents appended to his petition. We therefore

have no assurance that these documents are what Barrientes claims

them to be or that they represent the entire contents of the

File. For purposes of this opinion, however, we nonetheless

refer to this collection of documents as the File. Second, there

are numerous documents in the File that are either wholly or

8

contains evidence that on April 6, 1979, just outside the city of

Brownsville, Ronnie Vance was found dead in the backseat of a

purple Honda Civic belonging to Jack Fields. He was found with

one gunshot wound and one shotgun wound to the face and head.

Jack Fields rented part of his residence to a man named Castro

Bob. Castro Bob had been allowing Vance to stay there for free.

Fields reported that a significant sum of cash and a .357 Magnum

Smith and Wesson handgun were missing from his property.

The File contains an affidavit of Investigator George

Gavito, who reported that on April 11 he received a call from and

then met with a man named Larry Rowin. Rowin told Gavito that he

was picked up by Vance and a man named Emilio Gonzales (“Big-E”)

on April 5 and that Vance explained to Rowin that he, Vance, was

going to purchase forty pounds of marijuana. Vance showed Rowin

a large wad of cash and a handgun. Big-E was carrying a shotgun,

which he explained was a prop to convince police or the border

patrol that the men were hunting should they be pulled over. The

three men drove to a river levee, and Vance told Rowin to wait

there. Rowin waited, and about ten minutes later he heard a

shotgun blast and then a car driving off. He got scared and ran.

Rowin believed that Big-E murdered Vance and that the murder was

set up in advance. Gavito’s affidavit also states that Rowin

partially illegible. These include handwritten notes and what

appear to be photocopied photographs. The description we provide

is simply our best read of what’s before us. We do not intend

this description to be treated as controlling on remand.

9

“left town in a hurry after the news of the arrest of Emilio

Gonzales [Big-E], Jesus Flores and Tony Barrientes came out.” A

lookout bulletin was run for law enforcement agencies describing

Rowin as a material witness in a capital murder, and a grand jury

subpoena was sworn out for Rowin. A copy of both the lookout

bulletin and the grand jury subpoena are included in the File.3

The File also contains an affidavit of Investigator Garza

dated April 12. The affidavit indicates that a reliable,

confidential informant reported that Barrientes told the

informant that Vance met with Barrientes, Flores, and Big-E that

night at the levee to purchase a controlled substance, and that

in the course of the sale one of the three shot Vance with a

small handgun and then with a shotgun.

Also included in the File is the affidavit of Barrientes

himself dated April 14, 1979. Barrientes avers that Vance spent

several days looking for forty pounds of marijuana to purchase.

Vance was to ship the marijuana to a dealer in Houston, but he

was looking for a good price so that he could mark the marijuana

up before moving it along. A number of people, including

Barrientes, Big-E, and Vance spent most of the day for several

days hanging out at the home of Jesus Flores (“Chucho”). During

that time, Big-E picked a fight with several people, including

Vance. During the arguments, Big-E made it clear that he was

3

Barrientes argues that Rowin is the witness the prosecutor

in the Arredondo murder trial claimed was murdered by Barrientes.

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carrying a firearm. On April 5, the day Vance was murdered,

Vance spent most of the day at Chucho’s house but left about 5:00

PM with Castro Bob. Vance showed back up at Chucho’s house alone

at about 7:00 PM driving a purple Honda. Vance showed Barrientes

over $2,000 in cash and a .357 Magnum. Barrientes told Vance

that Barrientes’s dealer could not deliver the forty pounds of

marijuana until 11:00 PM. Vance was worried that he could not

get the marijuana on the last bus bound for Houston, so he asked

Big-E if he could get forty pounds immediately. Big-E responded

that he could, and he and Vance left. Barrientes never saw Vance

again, and he learned from reading the Sunday paper that Vance

had been murdered.

The File also contains records indicating that Barrientes,

Big-E, and Flores were arrested and held without bond.

Additionally, a copy of the Cameron County Prisoner’s Jail Record

on Barrientes is included. In his petition, Barrientes alleges

that this record indicates that he was eventually released

without any bond having to be posted. The quality of the copy

before us is too poor to confirm his allegation. The File also

contains a warrant issued on April 13 to search Big-E’s home for

a .357 Magnum. Also included in the File is a polygraph report

indicating that on April 25, Barrientes passed a polygraph

examination and that he “emphatically denie[d] any knowledge

of/and or participation in the shooting of Ronald Roger Vance.”

The report also states, “[f]or Case Details, see Polygraph

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Subject #1, Emilio Gonzalez.” No other polygraph reports are

included in the File.

Finally, appended to the Amended First Federal Petition was

an affidavit of Anthony P. Calisi, the prosecutor in Barrientes’s

capital murder trial, stating that, at the time of Barrientes’s

trial, he was unaware of the existence of any information

regarding the 1979 Unadjudicated Murder that was exculpatory in

nature. The affidavit further states that if Barrientes was not

involved in the 1979 Unadjudicated Murder, and if the State, at

the time of Barrientes’s capital murder trial, was aware of

Barrientes’s lack of involvement, “then [Calisi’s] inclusion and

reference [in closing argument] to the culpability of Mr.

Barrientes for the 1979 murder was improper.” Affidavit of

Anthony P. Calisi, subscribed and sworn on Feb. 14, 1992, at 2.

Calisi stated that, “[a]lthough [he could not] state with any

certainty whether omitting such argument would have changed the

jury verdict, [he felt] confident the inclusion of such argument

seriously impacted the jury and it’s [sic] decision.” Id.

Because the Amended First Federal Petition contained

additional information that had never been presented to the state

courts, Respondent Gary L. Johnson, Director, Texas Department of

Criminal Justice, Institutional Division (the “State”), moved to

dismiss the petition for failure to exhaust state remedies.

Based on the evidence presented in the petition, and without the

benefit of an evidentiary hearing, the district court was “of the

12

opinion that no writ of habeas corpus for release from

confinement should [have] issue[d] for Mr. Barrientes but that

his sentence of death should [have] be[en] vacated.” Barrientes

v. Collins, No. B-89-044, order at 1 (S.D. Tex. Aug. 23, 1995)

[hereinafter “1995 Order”]. Nonetheless, the district court

granted the State’s motion and dismissed the petition without

prejudice for failure to exhaust state remedies. It also entered

findings of fact and conclusions of law in support of its

opinion, for the state courts’ benefit and its own, “should this

matter not be disposed of at the State level.” Id. In November

of 1995, the district court denied Barrientes’s Application for

Certificate of Probable Cause, as did we in an unpublished

opinion. See Barrientes v. Johnson, No. 95-40880 (5th Cir. Aug.

20, 1996) (unpublished).

Barrientes returned to state court and filed a second state

post-conviction writ (the “Second State Petition”), which was, in

all relevant respects, identical to his Amended First Federal

Petition. His Second State Petition was dismissed as an abuse of

the writ. Then, in November 1997, Barrientes filed a second

federal petition (the “Second Federal Petition”), which was, in

all relevant respects, identical to his Amended First Federal

Petition and his Second State Petition. The State answered and

moved for summary judgment alleging, inter alia, that claims

asserted by Barrientes relying on evidence and factual

allegations not presented in his First State Petition were

13

procedurally barred. The district court entered a brief order on

February 27, 1998 (the “1998 Order”) that adopted the findings of

fact and conclusions of law detailed in its 1995 Order and stated

an additional ground for relief. The court consequently vacated

Barrientes’s death sentence and denied a writ of habeas corpus

for release from confinement.

The State filed a motion to reconsider the 1998 Order, and

Barrientes filed a motion to alter or amend the judgment under

Rule 59(e) of the Federal Rules of Civil Procedure. Both motions

were denied. The State timely appeals the court’s 1998 Order and

its denial of the motion to reconsider. Barrientes applied for a

certificate of probable cause (“CPC”) in the district court to

appeal certain claims on which habeas relief was denied, which

application the district court treated as an application for a

certificate of appealability (“COA”) under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA” or the “Act”) and

denied. He now applies for a CPC in this court.

III. THE STATE’S APPEAL

A. Standard of Review

In reviewing a grant of habeas relief, we examine factual

findings for clear error and issues of law de novo. See Bledsue

v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999). When examining

mixed questions of law and fact, we also utilize a de novo

14

standard by independently applying the law to the facts found by

the district court, as long as the district court’s factual

determinations are not clearly erroneous. See id.

B. Does AEDPA Apply?

The first question we must address is whether AEDPA applies

to Barrientes’s Second Federal Petition. Barrientes argues that

AEDPA does not apply to his petition and attempts to distinguish

this case from Graham v. Johnson, 168 F.3d 762 (5th Cir. 1999),

cert. denied, 120 S. Ct. 1830 (2000).

In Graham, the petitioner’s third federal habeas petition,

which was filed before the effective date of AEDPA, was dismissed

for failure to exhaust state remedies. The petitioner’s fourth

federal habeas petition, which was filed after the effective date

of AEDPA, was, we decided, governed by AEDPA. See id. at 788.

Because Graham’s first federal habeas petition was adjudicated on

the merits, his fourth petition was “second or successive” within

the meaning of the Act, 28 U.S.C. § 2244(b). See id. at 773-74.

Barrientes argues that his case is distinguishable from

Graham. One purpose of AEDPA, Barrientes asserts, was to curb

abuse of the federal writ, and such abuse does not exist in his

case where the petition at issue does not follow another federal

petition that was adjudicated on the merits. The petition at

issue in Graham was potentially abusive. Therefore, his argument

15

concludes, the rule adopted in Graham should not apply to this

case, and Barrientes’s Second Federal Petition should be treated

as a continuation of his dismissed Amended First Federal

Petition, making it subject to pre-AEDPA rules.

This argument is unpersuasive. We read Graham as holding

that a federal habeas corpus petition filed after the effective

date of AEDPA is governed by the Act where the petitioner’s

previous federal petition was filed before the effective date of

AEDPA and was dismissed without prejudice for failure to exhaust

state remedies. See id. at 788. Whether the petition at issue

will be considered “second or successive” within the meaning of

the Act is immaterial to the analysis. Barrientes’s Second

Federal Petition is subject to AEDPA; however, it is not a

“second or successive” petition within the meaning of the Act.

See Slack v. McDaniel, 120 S. Ct. 1595, 1605 (2000) (holding that

under pre-AEDPA law “[a] petition filed after a mixed petition

has been dismissed . . . before the district court adjudicated

any claims is . . . not a second or successive petition” and

declining to “suggest the definition of second or successive

would be different under AEDPA”); In re Gasery, 116 F.3d 1051,

1052 (5th Cir. 1997) (“[A] habeas petition refiled after

dismissal without prejudice . . . is merely a continuation of

[petitioner’s] first collateral attack, not a ‘second or

successive’ petition within the meaning of § 2244(b).”).

16

C. Claims Upon Which Relief Was Granted

Barrientes raises numerous claims in his Second Federal

Petition. His petition, however, does not clearly stake out the

precise constitutional violations he claims warrant the grant of

a writ of habeas corpus, and we have further difficulty

discerning the exact claims on which the district court granted

relief in its 1998 Order and 1995 Order. As we read Barrientes’s

various petitions and the two orders of the district court,

relief was granted upon six claims. For clarity, we detail these

claims and the district court’s rulings on those claims, as we

understand them. As discussed more fully later in this Part, the

State argues that the claims upon which relief was granted are

procedurally barred, that one of these claims is barred by the

doctrine of Teague v. Lane, 489 U.S. 288 (1989), and,

alternatively, that the district court abused its discretion by

failing to conduct an evidentiary hearing. The State does not

address the merits of the claims upon which the district court

granted relief. We are not called upon and do not express any

opinion on the merits of these claims.4

4

Finally, it appears the district court read none of the

claims in Barrientes’s various habeas petitions as being

predicated upon some variation of an assertion that evidence of

an arrest, without more, is insufficiently probative of guilt of

an unadjudicated crime to be introduced at the penalty phase of a

capital murder trial. His claims related to the admission of

evidence of unadjudicated crimes seem to assume that evidence of

17

1. Prosecutorial misconduct claims

Barrientes alleges a number of constitutional violations

under the heading of “Prosecutorial Misconduct.” Second Fed.

Petition at 27. The district court granted relief on the

following three claims:

a. Failure of the prosecution to turn over exculpatory evidence

(the “Brady Claim”)

Barrientes claims that the prosecutor failed to turn

over the information contained in the Sheriff’s File in violation

of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny,

information that could have been used to impeach Garza’s

testimony at the sentencing hearing. Among other things, he

avers that evidence in the File indicates that only one person

committed the 1979 Unadjudicated Murder, that the investigation

of the 1979 Unadjudicated Murder focused on a different

individual, that the missing witness was believed to have fled to

another city, that no evidence in the File indicates that

investigators thought the missing witness had been murdered, and

an arrest can be probative evidence of an unadjudicated crime.

Indeed, when the evidence of his arrest for the 1979

Unadjudicated Murder was introduced at trial, his counsel

objected only on the basis of unfair surprise, not on the basis

that the evidence was either not probative or unfairly

prejudicial. In any event, the district court did not grant

relief based on such an assertion, and Barrientes does not raise

this assertion in his application for a COA. The issue is,

therefore, not before us.

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that Barrientes passed at least one polygraph examination after

his arrest. See Second Fed. Petition at 20-21.

In Strickler v. Greene, 119 S. Ct. 1936 (1999), the Supreme

Court recently summarized its Brady jurisprudence. The Court

stated:

In Brady this Court held that the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution. We have since held that the

duty to disclose such evidence is applicable even though

there has been no request by the accused, and that the duty

encompasses impeachment evidence as well as exculpatory

evidence. Such evidence is material if there is a

reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different. Moreover, the rule encompasses evidence known

only to police investigators and not to the prosecutor. In

order to comply with Brady, therefore, the individual

prosecutor has a duty to learn of any favorable evidence

known to the others acting on the government’s behalf in

this case, including the police.

Id. at 1948 (internal citations and quotation marks omitted); see

also id. at 1948 n.21.

In ruling on this claim, the district court stated:

It is the responsibility of the prosecution to disclose

material evidence privy only to the prosecution [sic] to

defense in order to allow the opportunity to prepare a

defense. Giglio v. United States, 405 U.S. 150, 153 (1972).

In this case, only the prosecution was aware of its

intention to introduce evidence of the 1979 unadjudicated

offense and the failure to give proper notice made it

unlikely that the defense would be able to lodge the proper

objections to its admission or to properly cross-examine Mr.

Garza once it was admitted. Thus, since the immediate goal

for our purposes is to examine the effect such misconduct

had, in the larger context of the entire trial, or in this

case, the entire penalty phase of trial, upon Petitioner’s

right to due process, omitting such notice was indeed

prosecutorial misconduct.

19

1995 Order at 20. We read this portion of the district court’s

order as a ruling that a Brady violation occurred.

b. Solicitation of false or misleading testimony (the “Giglio

Claim”)

Barrientes argues that Garza’s testimony regarding the 1979

Unadjudicated Murder was false. The known solicitation of false

testimony by the State may constitute a violation of due process.

See Giglio v. United States, 405 U.S. 150, 153-154 (1972). We

have previously explained regarding the use of misleading

evidence:

To establish a due process violation based on the

State’s knowing use of false or misleading evidence, [a

habeas petitioner] must show (1) the evidence was false, (2)

the evidence was material, and (3) the prosecution knew that

the evidence was false. Evidence is false if, inter alia,

it is specific misleading evidence important to the

prosecution’s case in chief. False evidence is material

only if there is any reasonable likelihood that [it] could

have affected the jury’s verdict.

Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) (internal

citations and quotation marks omitted, second alteration in

original).

The district court found that while the testimony given by

Garza was not actually false--that Barrientes had been arrested

for capital murder in 1979 and that a witness had disappeared--

“the context in which the testimony was invoked, and the argument

made by the prosecutor, gave the clear implication that Mr.

20

Barrientes had committed the 1979 murder and that he also did

away with the witness.” 1995 Order at 21-22. Citing Giglio, 405

U.S. at 153, and United States v. Antone, 603 F.2d 566, 569 (5th

Cir. 1979), the district court further found that these

implications were false and that the prosecutor should be imputed

with knowledge of their falsity. Relying in part on Giglio, 405

U.S. at 154, and Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th

Cir. 1985), the district court concluded that improper

introduction of Garza’s testimony and the prosecutor’s

corresponding argument rendered “the penalty phase of trial . . .

fundamentally unfair, in derogation of Petitioner’s

constitutional rights.” 1995 Order at 23. We read the district

court’s order as granting relief on the Giglio Claim.

c. Improper comments during closing argument of the penalty

phase (the “Donnelly Claim”)

Barrientes claims that, during closing argument at the

penalty phase of his trial, the prosecutor asserted that

Barrientes had committed the 1979 Unadjudicated Murder and had

additionally murdered a witness in that case, despite knowledge

that neither allegation was true. “During the penalty phase of

[the] trial, the prosecuting attorney repeatedly argued that Mr.

Barrientes had committed the 1979 unadjudicated murder and that

Mr. Barrientes . . . also murdered [the] witness. . . . This

21

entire discourse and the prosecuting attorney’s conduct amount to

the use of false and prejudicial evidence . . . .” Second Fed.

Petition at 32.

“In habeas corpus proceedings, we review allegedly improper

prosecutorial statements made during a state trial to determine

whether they ‘so infected the [penalty phase of the] trial with

unfairness as to make the resulting [sentence] a denial of due

process.’” Ables v. Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

The statements must render the trial fundamentally unfair. “A

trial is fundamentally unfair if ‘there is a reasonable

probability that the verdict might have been different had the

trial been properly conducted.’” Foy v. Donnelly, 959 F.2d 1307,

1317 (5th Cir. 1992) (internal quotation marks omitted); see also

Little v. Johnson, 162 F.3d 855, 861 n.7 (5th Cir. 1998); Nichols

v. Scott, 69 F.3d 1255, 1278 (5th Cir. 1995). “[I]t is not

enough that the prosecutors’ remarks were undesirable or even

universally condemned. . . . Moreover, the appropriate standard

of review for such a claim on writ of habeas corpus is the narrow

one of due process, and not the broad exercise of supervisory

power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quotation marks and internal citations omitted).

In its 1995 Order, the district court stated that “the

argument made by the prosecutor . . . gave the clear implication

that Mr. Barrientes committed the 1979 murder and that he also

22

did away with the witness. If [the prosecutor] knew or should

have known that this implication was false, the introduction of

the evidence and argument is prosecutorial misconduct.” 1995

Order at 22-23. We understand the district court’s order as

concluding that the prosecutor should be imputed with knowledge

of the falsity of his statements and further concluding that the

argument rendered the penalty phase of the trial unfair. See id.

at 23-24.

2. Ineffective assistance of counsel (the “Strickland Claims”)

Barrientes further alleges that he was denied the effective

assistance of counsel. The district court granted relief on the

following two claims: that Barrientes’s trial counsel was

ineffective for failing to request a recess after evidence of the

1979 Unadjudicated Murder was introduced and that his appellate

counsel, who was the same person who represented Barrientes at

trial, was ineffective for failing to raise as error on direct

appeal the fact that evidence of the 1979 Unadjudicated Murder

was admitted over the objection of surprise.

Claims of ineffective assistance of counsel are evaluated

under the familiar standard first enunciated by the Supreme Court

in Strickland v. Washington, 466 U.S. 668 (1984). Under that

standard, a habeas petitioner must “demonstrate both that

counsel’s performance was deficient and that the deficiency

23

prejudiced the defense.” Crane v. Johnson, 178 F.3d 309, 312

(5th Cir. 1999).

To establish the first prong of deficient performance,

[a habeas petitioner] must show that his trial counsel made

errors so serious that counsel was not functioning as the

counsel guaranteed ... by the Sixth Amendment. However,

this Court must be highly deferential of counsel’s

performance and must make every effort to eliminate the

distorting effects of hindsight. Therefore, we must indulge

a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. We will

not find ineffective assistance of counsel merely because we

disagree with counsel’s trial strategy.

For the second prong, [the petitioner] must show a

reasonable probability that the result of the proceedings

would have been different but for counsel’s unprofessional

errors. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.

Id. (internal citations and quotation marks omitted). “[I]n

cases involving mere ‘attorney error,’ we require the defendant

to demonstrate that the errors ‘actually had an adverse effect on

the defense.’” Roe v. Flores-Ortega, 120 S. Ct. 1029, 1037

(2000) (quoting Strickland, 466 U.S. at 693).

The district court stated in regard to the first of

Barrientes’s two claims that:

Petitioner alleges that [trial counsel] failed to

effectively block the admission of Mr. Barrientes [sic] 1979

arrest for capital murder. As a result of the prosecution’s

failure to notice defense counsel of his intent to offer

these facts into evidence, defense counsel was surprised by

the attempt to introduce such evidence and, consequently,

unprepared to make the proper objections. [Defense counsel]

did properly object to the admission of the evidence on the

basis of surprise but upon, having been overruled,

thereafter failed to move for a recess in order to

investigate the 1979 arrest. It appears from the record

that this failure was indeed prejudicial. Since this

allegation is related to the admission of evidence of the

24

1979 unadjudicated capital murder the effect of this failure

in counsel performance will be discussed inclusively in the

section below.

1995 Order at 14-15. Later in its order, the court concluded

that “[t]he added failure of defense counsel to move for a recess

in order to investigate the proposed introduction, despite Mr.

Barrientes’s repeated insistence on his having been exonerated of

this offense, removed any final relief for Mr. Barrientes.” Id.

at 21. The district court stated with regard to Barrientes’s

second claim that “Petitioner is correct that the admission of

[evidence of the 1979 Unadjudicated Murder] over the objection of

surprise gave defense counsel a basis for appeal. . . . Defense

counsel’s assistance was ineffective for failing to allege this

error on appeal.” Id. at 22. We read the district court’s

statements as granting relief on the ineffective assistance

claims discussed.

3. The admission of evidence of unadjudicated crimes

(“Preliminary Showing Claim”)

Barrientes makes several claims regarding the admission of

evidence of unadjudicated crimes. The district court granted

relief on one of these claims. In his petition, Barrientes

argued that “[t]he admission of evidence of unadjudicated crimes,

without evidence that a crime had been committed[,] . . . was

25

admitted during the penalty phase of Mr. Barrientes’ capital

trial and, accordingly, [his] sentence of death violates the

Eighth and Fourteenth Amendments to the United States

Constitution.” Second Fed. Petition at 54.

The district court read this statement as a claim that,

before evidence of an unadjudicated crime can be admitted in the

sentencing phase of a trial, the prosecution must make a

preliminary showing to the court that a reasonable jury could

find the defendant committed the unadjudicated crime by a certain

standard of proof. In its 1998 Order, the district court stated:

The issue before this Court is whether a certain

standard of proof is required before any evidence of an

unadjudicated offense should be admitted at the sentencing

phase of a capital murder trial in order to prove that a

person might be a future danger to society. In Turner v.

Johnson, 106 F.3d 1178, 1189 (5th Cir. 1997), the Fifth

Circuit recognizes that a jury may here [sic] evidence of an

unadjudicated offense if the trial court concludes that a

reasonable jury could find that the accused committed the

offense by a preponderance of the evidence. Huddleston v.

United States, 485 U.S. 681 (1988). In the Petitioner’s

case, such a preliminary showing was not made and the

evidence was admitted even though Defense Counsel objected

to its introduction. This Court remains of the opinion that

the admissibility of such evidence contributed to the

Petitioner’s death sentence and the proceedings at the

penalty phase of the trial did not meet the required

procedural protections guaranteed by the U.S. Constitution.

Barrientes v. Johnson, No. B-89-044, order at 4 (S.D. Tex. Feb.

27, 1998) [hereinafter “1998 Order”]. While we have serious

reservations whether this legal conclusion addresses a claim

raised by Barrientes, we assume arguendo that it addresses the

claim quoted above.

26

4. Materiality, error, and prejudice

In Chapman v. California, the Supreme Court held that “there

may be some constitutional errors which in the setting of a

particular case are so unimportant and insignificant that they

may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the

conviction.” 386 U.S. 18, 22 (1967). In Brecht v. Abrahamson,

507 U.S. 619 (1993), the Court addressed the issue of harmless

error in the context of collateral review. The Court explained

that “the writ of habeas corpus has historically been regarded as

an extraordinary remedy, a bulwark against convictions that

violate fundamental fairness. Those few who are ultimately

successful [in obtaining habeas relief] are persons whom society

has grievously wronged and for whom belated liberation is little

enough compensation.” Id. at 633-34 (internal citations and

quotation marks omitted) (alteration in original). Accordingly,

the Court determined that “habeas petitioners may obtain plenary

review of their constitutional claims, but they are not entitled

to habeas relief based on trial error unless they can establish

that it resulted in ‘actual prejudice.’” Id. at 637. This

standard requires a court to determine “whether the error had

substantial and injurious effect or influence in determining the

jury’s verdict.” Id. (quotation marks omitted).

27

Of course, harmless error analysis applies to errors

commonly referred to as “trial errors.” In Brecht, the Supreme

Court distinguished between errors of this type and “structural

defects.”

Trial error occur[s] during the presentation of the case to

the jury, and is amenable to harmless-error analysis because

it may . . . be quantitatively assessed in the context of

other evidence presented in order to determine [the effect

it had on the trial]. At the other end of the spectrum of

constitutional errors lie structural defects in the

constitution of the trial mechanism, which defy analysis by

harmless-error standards. The existence of such

defects--deprivation of the right to counsel, for

example--requires automatic reversal of the conviction

because they infect the entire trial process.

Id. at 629-30 (internal citations and quotation marks omitted)

(alterations in original).

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court

explained that Brecht harmless error analysis is unnecessary when

the inquiry for a particular habeas claim requires application of

the more demanding “reasonable probability” standard. See id. at

435-36. This standard requires the petitioner to demonstrate a

reasonable probability that, but for the error, “the result of

the proceeding would have been different”. Strickler, 119 S. Ct.

at 1948. Both Brady claims and Strickland claims utilize the

more demanding “reasonable probability” standard. See id. (Brady

claim); Crane, 178 F.3d at 312 (Strickland claim). Moreover, in

this circuit, the “reasonable probability” standard is built into

the determination of whether improper prosecutor comments

28

rendered the trial fundamentally unfair. See Foy, 959 F.2d at

1317.

In adjudicating a claim involving the use of false

testimony, the “any reasonable likelihood” standard has been

applied to determine materiality. See Giglio, 405 U.S. at 153-

54. Under that standard, “[a] new trial is required if ‘the

false testimony could . . . in any reasonable likelihood have

affected the judgment of the jury . . .’” Id. at 154 (quoting

Napue v. Illinois, 360 U.S. 264, 271 (1959)). This standard is

considered less demanding on a defendant than either the

“reasonable probability” or Brecht harmless-error standards. See

generally Strickler, 119 S. Ct. at 1956-58 (Souter, J.,

concurring) (discussing the standards).

We have never specifically addressed whether, when

addressing a claim utilizing the “any reasonable likelihood”

standard of materiality in the habeas context, we must

additionally apply the more-demanding Brecht harmless-error

standard if we find the petitioner presents a valid claim. After

considering the interests of finality and state sovereignty

supporting the Supreme Court’s decision in Brecht, see 507 U.S.

at 635-37, and weighing those interests against the Court’s

recognition that “a deliberate and especially egregious error of

the trial type, or one that is combined with a pattern of

prosecutorial misconduct, might so infect the integrity of the

proceeding as to warrant the grant of habeas relief, even if it

29

did not substantially influence the jury’s verdict,” id. at 638

n.9, we assume, without deciding, that it is appropriate to

conduct a Brecht harmless-error analysis in such a circumstance.

See Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir. 1995)

(applying Brecht harmless-error to a claim of knowing use of

perjured testimony).

Finally, with regard to the Preliminary Showing Claim, the

district court did not specifically apply a harmless error

analysis. It simply stated that “the admissibility of [the

unadjudicated crime] evidence contributed to the Petitioner’s

death sentence and the proceedings at the penalty phase of the

trial did not meet the required procedural protections guaranteed

by the U.S. Constitution.” 1998 Order at 4. Because the

district court chose not to apply the Brecht harmless-error

analysis to this claim, we assume for purposes of this opinion

that it concluded that the error was of the “structural defect”

type that does not require harmless-error analysis.5

Consequently, every claim upon which the district court

granted relief, save for the Preliminary Showing Claim, required

some sort of showing of materiality, prejudice, or harmful error.

At the root of each of these determinations was the Sheriff’s

File and its contents. For the Brady Claim, there was an

implicit conclusion that, based upon the contents of the File,

5

We take no position on whether such a conclusion was

warranted.

30

there was a reasonable probability that, had the File been

disclosed to the defense, the result of the proceeding would have

been different. For the Giglio Claim, the district court

concluded, based upon the contents of the File, that Garza’s

testimony was false or misleading and there was a reasonable

likelihood that his testimony could have affected the jury’s

verdict.6 For the Donnelly Claim, the district court concluded,

based upon the contents of the File, that the prosecutor’s

comments were improper, and the comments rendered the penalty

phase of the trial fundamentally unfair. Finally, regarding the

Strickland Claims, there was an implicit conclusion that, based

upon the contents of the File, there is a reasonable probability

that the outcome of the penalty phase would have been different

had counsel not performed deficiently. The resolution of all

five of these claims was therefore dependent upon the contents of

the Sheriff’s File.

D. The State’s Arguments

The State makes three arguments on appeal. First, it argues

that the district court erred by granting relief on procedurally

barred claims. Second, it argues that the district court’s

ruling in its 1998 Order granting relief on the Preliminary

Showing Claim relied on a rule of law that was not presented to

6

We assume that the district court additionally determined

that the error was not harmless under Brecht.

31

the state courts and whose retroactive application is barred by

Teague v. Lane, 489 U.S. 288 (1989). Finally, it argues

alternatively that the district court erred by failing to grant

an evidentiary hearing.

In the sections that follow, we determine, first, that the

Texas Court of Criminal Appeals’s dismissal of Barrientes’s

Second State Petition constituted an independent and adequate

state ground barring consideration of affected claims absent a

showing of cause and actual prejudice. Next, we decide that of

the claims upon which relief was granted, all but the Preliminary

Showing Claim are affected by the issue of procedural bar.

Because the Preliminary Showing Claim is not affected by the

potential procedural bar, we need not determine whether

Barrientes has established cause and prejudice to overcome his

default if the Preliminary Showing Claim independently supports

the relief granted by the district court. We determine, however,

that the rule announced by the district court in granting relief

on the Preliminary Showing Claim is Teague-barred, and that that

relief therefore cannot independently support the district

court’s ruling.

Consequently, we must ascertain whether Barrientes has

established cause and actual prejudice to overcome his default.

We conclude that a hearing in the district court is necessary to

determine whether Barrientes has established cause and actual

prejudice.

32

Accordingly, we reverse that portion of the district court’s

1998 Order granting relief on the Preliminary Showing Claim and

vacate those portions of the district court’s 1998 and 1995

Orders granting relief on the other five claims, and we remand

the case for a determination of cause and prejudice. Finally, we

determine that the district court should have granted an

evidentiary hearing on the merits of the claims affected by the

Sheriff’s File and that such a hearing is not barred by 28 U.S.C.

§ 2254(e)(2). We therefore instruct the district court to

conduct an evidentiary hearing on the merits of the affected

claims, should it find that Barrientes has established cause and

prejudice to overcome his procedural default.

We turn now to the specifics.

1. Procedural Bar

A federal court cannot consider a petitioner’s

constitutional claim in a habeas proceeding if the state court

rejected that claim on an adequate and independent state ground,

“unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal

law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice,” Coleman v.

Thompson, 501 U.S. 722, 750 (1991); see also Martin v. Maxey, 98

F.3d 844, 847 (5th Cir. 1996). The state must “clearly and

33

expressly” rely on the adequate and independent state ground.

Coleman, 501 U.S. at 735. We now turn our attention to the

question of adequacy7 and address the State’s argument that the

dismissal of Barrientes’s Second State Petition as an abuse of

the writ is an adequate and independent state ground that

procedurally bars consideration of certain claims in a federal

habeas proceeding.8

a. Texas’s abuse-of-the-writ doctrine

Barrientes’s Second State Petition was dismissed as an abuse

of the writ under Texas Code of Criminal Procedure article 11.071

§ 5.9 We have previously held that Texas’s abuse-of-the-writ

7

It is undisputed by the parties that the Texas Court of

Criminal Appeals, in dismissing Barrientes’s Second State

Petition, clearly and expressly relied on a rationale independent

of federal law.

8

As we read the State’s brief and certain of its filings in

the district court, it also argues that certain of Barrientes’s

claims remain unexhausted because the Texas Court of Criminal

Appeals dismissed his Second State Petition rather than

addressing it on the merits. This argument has no merit. It has

long been accepted that when a state court disposes of

unexhausted claims on purely procedural grounds, those claims

become exhausted. See Gray v. Netherland, 518 U.S. 152, 161

(1996) (“[The exhaustion requirement] is satisfied if it is clear

that [the habeas petitioner’s] claims are now procedurally barred

under [state] law.” (internal quotation marks omitted, citation

omitted, and last two alterations in original)); Coleman, 501

U.S. at 732 (“A habeas petitioner who has defaulted on his

federal claims in state court meets the technical requirements

for exhaustion . . . .”); Engle v. Isaac, 456 U.S. 107, 125-26

n.28 (1982) (same).

9

The statute provides, in pertinent part:

34

Notwithstanding any other provision of this chapter,

this article establishes the procedures for an application

for a writ of habeas corpus in which the applicant seeks

relief from a judgment imposing a penalty of death.

. . . .

Sec. 5.

(a) If a subsequent application for a writ of habeas corpus

is filed after filing an initial application, a court

may not consider the merits of or grant relief based on

the subsequent application unless the application

contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and

could not have been presented previously in a

timely initial application or in a previously

considered application filed under this article or

Article 11.07 because the factual or legal basis

for the claim was unavailable on the date the

applicant filed the previous application;

(2) by a preponderance of the evidence, but for a

violation of the United States Constitution no

rational juror could have found the applicant

guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a

violation of the United States Constitution no

rational juror would have answered in the state’s

favor one or more of the special issues that were

submitted to the jury in the applicant’s trial

under Article 37.071 or 37.0711.

. . . .

(d) For purposes of Subsection (a)(1), a legal basis of a

claim is unavailable on or before a date described by

Subsection (a)(1) if the legal basis was not recognized

by or could not have been reasonably formulated from a

final decision of the United States Supreme Court, a

court of appeals of the United States, or a court of

appellate jurisdiction of this state on or before that

date.

(e) For purposes of Subsection (a)(1), a factual basis of a

claim is unavailable on or before a date described by

Subsection (a)(1) if the factual basis was not

ascertainable through the exercise of reasonable

diligence on or before that date.

35

doctrine has, since 1994, provided an adequate state ground for

the purpose of imposing a procedural bar.10 See Emery v.

Johnson, 139 F.3d 191, 195-96 (5th Cir. 1997). In Emery, we

stated:

An abuse of the writ can qualify as a procedural bar.

A procedural bar is not adequate, however, unless it is

applied strictly or regularly to the vast majority of

similar claims. Historically, Texas courts have failed to

apply the abuse-of-the-writ doctrine in a strict or regular

manner, and, therefore, we have refused to honor it.

TEX. CODE CRIM. P. ANN. art. 11.071 (West Supp. 2000).

10

We discuss our precedent dealing with Texas’s judicially

created abuse-of-the-writ doctrine, even though the Texas Court

of Criminal Appeals dismissed Barrientes’s Second State Petition

under article 11.071. In Nobles v. Johnson, we declined to

decide whether article 11.071 is a codification of the abuse-of-

the-writ doctrine. See 127 F.3d 409, 423 n. 32 (5th Cir. 1997).

We stated:

We note that in his concurring opinion in Davis, Judge

McCormick, joined by Judges White, Meyers, and Keller,

expressed the opinion that “[t]he successive writ provisions

of Article 11.071, Section 5(a), for the most part are

merely a legislative codification of the judicially created

‘abuse of the writ’ doctrine.” Ex parte Davis, 947 S.W.2d

at 226 (McCormick, J., concurring). In view of the dearth

of judicial interpretation of Article 11.071 § 5(a),

however, we cannot definitively say, and therefore do not

venture to guess, whether that section was intended to

codify the preexisting abuse-of-writ doctrine. We provide

an alternate basis for finding procedural default, then,

assuming that the abuse-of-writ doctrine is still viable in

light of Article 11.071 § 5(a).

Id. Since our opinion in Nobles, the Texas Court of Criminal

Appeals has clarified that, “[a]lthough Presiding Judge

McCormick’s opinion [in Davis] is labeled a concurring opinion,

it was joined by a majority of the Court and may be regarded as

an opinion for the Court.” Ex parte Smith, 977 S.W.2d 610, 611

n.4 (Tex. Ct. Crim. App. 1998). We treat article 11.071 as a

codification of the Texas abuse-of-the-writ doctrine.

36

This changed in 1994, when the Texas Court of Criminal

Appeals announced the adoption of a strict abuse-of-the-writ

doctrine, tempered only by an exception for cause. See Ex

parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994)

(en banc) (plurality opinion). Barber represents an

adequate procedural bar for purposes of federal habeas

review.

Id. (most citations and all internal quotation marks omitted).

b. Controlling date

Barrientes argues that the Texas abuse-of-the-writ doctrine

should not bar his claims despite the fact that his Second State

Petition was dismissed as an abuse of the writ after 1994. He

argues that in determining the adequacy of the abuse-of-the-writ

doctrine in this case, we should look to the date on which his

First State Petition was filed (in 1988) because that is the

point at which he defaulted. He relies on Fields v. Calderon,

125 F.3d 757 (9th Cir. 1997), in which the Court of Appeals for

the Ninth Circuit adopted a rule that adequacy should be

determined at the point “when the defaulted claims should have

been raised.” Id. at 760. In that case, much like the instant

case, the court was faced with a state procedural rule that

existed throughout the proceedings at issue but was not, at the

time the petitioner failed to raise the claims in question,

applied “strictly or regularly to the vast majority of similar

37

claims.” The rule, however, was so applied at the time the state

court decided that the claims at issue were defaulted.11

Barrientes’s reliance on Fields is misplaced because the

cases in this circuit have reached the opposite conclusion,

foreclosing his argument. Barrientes argues that our holding in

Lowe v. Scott, 48 F.3d 873 (5th Cir. 1995), is in accord with the

Fields rule and that it must be adhered to despite the opposite

result reached in subsequent cases. See In the Matter of Dyke,

943 F.2d 1435, 1442 (5th Cir. 1991). Barrientes stretches Lowe

beyond its natural reading. It is true, as Barrientes points

out, that the final state habeas petition in Lowe was filed in

1990 before Texas’s Barber decision, but it was also dismissed as

an abuse of the writ before Barber was decided. See Lowe, 48

F.3d at 874-75. Our decision that the Texas abuse-of-the-writ

doctrine was inadequate in Lowe’s case, therefore, does not

necessitate the conclusion that we determined adequacy as of the

date Lowe took action creating the default, that is, as of the

date he filed his first state petition that failed to include all

of the claims raised in his federal petition.

11

The Court of Appeals for the Tenth Circuit, relying on

Fields, has recently adopted the same rule. See Walker v.

Attorney General, 167 F.3d 1339, 1344-45 (10th Cir. 1999).

Unlike the situation in the instant case or in Fields, however,

the Tenth Circuit gave some indication in Walker that the rule at

issue did not exist at the time the defendant failed to comply

with it. See id. at 1345.

38

Cases decided after Lowe, however, necessitate the

conclusion that we determine adequacy as of the date that the

Texas court dismissed, or would dismiss, the claims at issue as

an abuse of the writ. In Fearance v. Scott, we found ourselves

barred from considering a claim raised for the first time in a

state habeas petition filed in 1995, which the state rejected as

an abuse of the writ because it had not been included in

petitioner’s previous state habeas petition filed in 1992. See

56 F.3d 633, 642 (5th Cir. 1995). We determined adequacy as of

the date his claims were dismissed, noting that at the time “the

state district court dismissed an issue raised in Fearance’s

third petition that was not raised in his earlier petition it was

no longer acting with any discretion.” Id.

In Nobles v. Johnson, Nobles filed his first state habeas

petition in 1993. See 127 F.3d 409, 412 (5th Cir. 1997). We

affirmed the district court’s ruling that a claim first presented

in Nobles’s federal habeas petition was procedurally barred

because it would be dismissed as an abuse of the writ if included

in a future state habeas petition. See id. at 423. Muniz v.

Johnson, 132 F.3d 214 (5th Cir. 1998), and Little v. Johnson, 162

F.3d 855 (5th Cir. 1998), are also in accord with the Fearance

rule.12 Our precedent requires us, at least in the case of the

12

Additionally, we read Supreme Court precedent informing

this rule differently from how the Ninth Circuit does. The Ninth

Circuit placed substantial reliance on notice. But in the

Supreme Court cases cited in Fields, NAACP v. Alabama ex rel.

39

Texas abuse-of-the-writ doctrine, to determine adequacy as of the

date the Texas court determines that a claim is procedurally

defaulted.

The Texas Court of Criminal Appeals dismissed Barrientes’s

Second State Petition in 1997, several years after Barber was

decided and Texas Code of Criminal Procedure article 11.071 § 5

was passed. The dismissal constituted an independent and

adequate state ground. Our task, then, is to determine whether

the claims upon which the district court granted relief are

procedurally barred by this dismissal.

c. Barred claims

In our 1996 unpublished opinion denying Barrientes’s

application for a CPC to review the district court’s dismissal of

Patterson, 357 U.S. 449 (1958), and Ford v. Georgia, 498 U.S. 411

(1991), unlike the instant case and Fields, the state procedural

rule at issue was non-existent at the time the petitioner took

the action that resulted in default. Indeed, in both cases, the

rule was arguably non-existent until announced and applied to the

petitioner in that case. While adequacy is concerned with notice

and fairness, it is also concerned with ensuring that state

courts cannot prevent federal adjudication of federal rights by

applying one-time rules to particular litigants.

The Texas abuse-of-the-writ doctrine was not “unannounced”

at the time Barrientes filed his First Federal Petition; it was

in “existence.” As we have noted, it was not strictly or

regularly applied, but it did exist. See Ex parte Dora, 548

S.W.2d 392, 393-94 (Tex. Crim. App. 1977). Barrientes was on

notice that future petitions might be subject to default. At the

time the Texas Court of Criminal Appeals dismissed Barrientes’s

Second State Petition, however, the rule was strictly and

regularly applied. There is therefore no concern that a one-time

procedural rule is being applied in Barrientes’s case.

40

his Amended First Federal Petition for failure to exhaust state

remedies, we noted three areas in which the State argued that

Barrientes presented new factual allegations or significantly

stronger evidentiary support for certain of his claims:

(1) Although Barrientes had presented his claim that the

State improperly admitted evidence of his unadjudicated 1979

capital murder arrest at the penalty phase and improperly

argued concerning this arrest to the state habeas court,

Barrientes presented significantly stronger evidentiary

support for this argument in his amended federal habeas

petition. Specifically, Barrientes included with his

amended federal habeas petition the Cameron County sheriff’s

office’s file on the 1979 arrest, indicating that the

charges against Barrientes were dropped, as well as an

affidavit by the prosecutor that, had he known the

exculpatory information contained in the police file, he

would not have argued or presented evidence regarding the

1979 arrest at the penalty phase of Barrientes’s trial.

(2) Although Barrientes had argued to the state habeas court

that David Meza’s testimony was fabricated, he had not

alleged before the state habeas court that Meza lied because

the district attorney’s office threatened him. In his

federal petition, Barrientes argued that Meza testified

falsely because the district attorney’s office threatened

him, and offered Meza’s testimony to that effect.

(3) Before the state habeas court, Barrientes had broadly

asserted that his counsel was ineffective for failing to

interview witnesses to obtain information with which to

impeach the government’s principal witness, Felix Sanchez.

However, in his federal habeas petition, Barrientes

specifically alleged and offered evidence that Sanchez’s

wife and mother would have testified in a way that would

have undermined Sanchez’s credibility.

Barrientes v. Johnson, No. 95-40880, at 4-5 (5th Cir. Aug. 20,

1996) (unpublished) (quoting the State’s Motion to Dismiss).

We held that claims relying on the new factual allegations

or significantly stronger evidentiary support were unexhausted.

We explained:

41

The record demonstrates that Barrientes’s amended federal

habeas petition presents new factual allegations and

significantly stronger evidentiary support for his legal

claims than he had presented to the state habeas court. We

have held that a habeas petitioner fails to exhaust state

remedies when he presents additional factual allegations and

evidentiary support to the federal court that was not

presented to the state court. See Joyner v. King, 786 F.2d

1317, 1320 (5th Cir.) (holding that “the policies of comity

and federalism underlying the exhaustion doctrine” require

that “new factual allegations in support of previously

asserted legal theory” be first presented to the state

court), cert. denied, 479 U.S. 1010 (1986); Brown v.

Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983) (holding that

when a claim is filed in federal court in a significantly

stronger evidentiary posture than it was before the state

court, it must be dismissed for failure to exhaust state

remedies and remanded to the state court).

Id. at 5-6. We denied Barrientes’s CPC application, and he

returned to state court to exhaust the claims that relied on the

new factual allegations and significantly stronger evidentiary

support. Of the claims upon which relief was granted, all but

the Preliminary Showing Claim rely on the significantly stronger

evidentiary support Barrientes claims is provided by the

Sheriff’s File. The Texas Court of Criminal Appeals denied his

Second State Petition as an abuse of the writ, and these claims

are therefore barred, unless Barrientes can show cause and

prejudice for defaulting on these claims.13

2. The non-barred Preliminary Showing Claim

13

Barrientes does not rely on the “manifest injustice”

exception to procedural bar.

42

Before proceeding to determine whether Barrientes has

established cause and prejudice for his procedural default, we

pause to address an issue that could pretermit that

determination. We need not address the issues of cause and

prejudice if the Preliminary Showing Claim, which we assumed in

Part III-C-4, supra, did not rely on the contents of the

Sheriff’s File, is sufficient to support the relief granted by

the district court. The State argues first that this ground for

relief was never claimed by Barrientes, that if he claimed it now

before the state court it would be dismissed as an abuse of the

writ, and therefore that it is procedurally barred. See Coleman,

501 U.S. at 735 n.* (“[I]f the petitioner failed to exhaust state

remedies and the court to which the petitioner would be required

to present his claims in order to meet the exhaustion requirement

would now find the claims procedurally barred[, then] . . . there

is a procedural default for purposes of federal habeas regardless

of the decision of the last state court to which the petitioner

actually presented his claims.”). Alternatively, the State

argues that the rule announced by the district court is Teague-

barred. As we stated in Part III-C-3, supra, we assume, despite

serious reservations, that the district court’s relief addressed

a claim actually raised in Barrientes’s petition. We therefore

address the State’s alternative argument and determine whether

the district court’s relief is Teague-barred.

43

We begin by noting that the district court misstated Fifth

Circuit law. In Turner, we simply held that evidence of

unadjudicated crimes presented at the sentencing phase of a

capital murder trial need not be proved beyond a reasonable

doubt. See Turner, 106 F.3d at 1189 (“Although the due process

clause requires the state to prove each element of the offense

charged beyond a reasonable doubt to secure a conviction, neither

this court nor the Supreme Court has ever held that a similar

burden exists regarding the proof of facts adduced during the

sentencing phase.” (footnote omitted)). Moreover, we can find no

other precedent from this court or the Supreme Court that

supports the proposition on which the district court’s grant of

relief relies. We need not determine whether the rule announced

by the district court is of constitutional significance, however,

because we conclude that, even if it is, its application in this

case is barred by the nonretroactivity rule of Teague v. Lane,

489 U.S. 288 (1989).

In determining whether a state prisoner is entitled to

habeas relief, a federal court should apply Teague by

proceeding in three steps. First, we must determine when

[the defendant’s] conviction and sentence became final for

Teague purposes. Second, we must survey the legal landscape

as it then existed and determine whether a state court

considering the defendant’s claim at the time his conviction

became final would have felt compelled by existing precedent

to conclude that the rule he seeks was required by the

Constitution. Third, if we determine that [the defendant]

seeks the benefit of a new rule, we must consider whether

that rule falls within one of the two narrow exceptions to

the nonretroactivity principle.

44

Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (citations and

internal quotation marks omitted). An exception exists if the

rule “places certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe” or if it is a rule of procedure that is “implicit in

the concept of ordered liberty.” Teague, 489 U.S. at 307

(internal quotation marks omitted). This second exception is

“reserved for watershed rules of criminal procedure.” Id. at

311.

“A state conviction and sentence become final for purposes

of retroactivity analysis when the availability of direct appeal

to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed

petition has been finally denied.” Caspari v. Bohlen, 510 U.S.

383, 390 (1994). Barrientes’s petition for certiorari was denied

in 1988. We easily conclude that, at that time, “reasonable

jurists hearing petitioner’s claim . . . ‘would [not] have felt

compelled by existing precedent’ to rule in his favor.” Graham

v. Collins, 506 U.S. 461, 467 (1993) (quoting Saffle v. Parks,

494 U.S. 484, 488 (1990)). Finally, the rule does not fall

within one of the two narrow exceptions. The new rule announced

by the district court is therefore Teague-barred.

3. Cause and prejudice

45

Having determined that the Preliminary Showing Claim is

Teague-barred, we turn our attention to the question of whether

cause and prejudice exist to excuse Barrientes’s procedural

default on the five remaining claims as to which the district

court granted relief.

“[T]he resolution of ‘when and how defaults in compliance

with state procedural rules can preclude [federal court]

consideration of a federal question is itself a federal

question.’” Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir.

1999) (alteration in original) (quoting Johnson v. Mississippi,

486 U.S. 578, 587 (1988)). To the extent, therefore, that the

Texas Court of Criminal Appeals decided issues of cause and

prejudice in dismissing Barrientes’s Second State Petition, we

are not bound by its decision. In considering cause and

prejudice in this case, we are mindful that “[w]here a district

court fails to make necessary findings, a remand for entry of

such findings is the usual recourse for an appellate court;

however, where all of the issues on appeal may be fairly resolved

from the record presented, a remand may not be required.” In the

Matter of Legel, Braswell Gov’t Securities Corp., 648 F.2d 321,

326 n.8 (5th Cir. Unit B 1981).

Here, the district court has never explicitly addressed the

issues of cause and prejudice. In its 1998 Order, it simply

stated, “[t]he court has reviewed the file of the 1979 murder

case which apparently was not available at the punishment phase

46

of the trial.” 1998 Order at 3. Likewise, in its 1995 Order, it

stated, “[i]n addition, since the filing of his First Federal

Petition, as reflected in the Amended Petition, Petitioner has

recovered the Cameron County police file related to the 1979

capital murder.” 1995 Order at 21. Finally, in its Order

denying Petitioner’s Rule 59(e) Motion, the court stated,

“[f]urthermore, this Court denied the Respondent’s Motion to

Reconsider the 1998 Order, and obviously disagrees with the

Respondent’s argument that the Petitioner’s claims should be

‘procedurally barred . . . .’” Barrientes v. Johnson, No. B-89-

044 (S.D. Tex Aug. 26, 1998) (order at 1). Our task, then, is to

determine whether the issues of cause and prejudice “may be

fairly resolved from the record presented” or whether remand is

necessary.

a. Cause

With regard to the issue of cause, the Supreme Court has

stated that:

the existence of cause for a procedural default must

ordinarily turn on whether the prisoner can show that some

objective factor external to the defense impeded counsel’s

efforts to comply with the State’s procedural rule. . . .

[A] showing that the factual or legal basis for a claim was

not reasonably available to counsel, or that some

interference by officials made compliance impracticable,

would constitute cause under this standard.

Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal citations

and quotation marks omitted.

47

Barrientes asserts that cause exists in this case because 1)

despite diligent pursuit, habeas counsel had only four months to

secure the file, which proved insufficient; 2) counsel’s

discovery motions were denied and attempts to elicit testimony at

the state evidentiary hearing on ineffective assistance of

counsel were thwarted by the state judge; and 3) counsel’s

efforts were frustrated by State officers and the exception to

the Texas Open Records Act, Texas Government Code § 552.101, et

seq., that applies to investigative records.14

14

The Texas Open Records Act provides, in pertinent part:

(1) . . . [I]t is the policy of this state that each person

is entitled, unless otherwise expressly provided by

law, at all times to complete information about the

affairs of government and the official acts of public

officials and employees. . . . The provisions of this

chapter shall be liberally construed to implement this

policy.

(2) This chapter shall be liberally construed in favor of

granting a request for information.

TEX. GOV’T CODE ANN. § 552.001 (West 1994). The Act further

provides that “[p]ublic information is available to the public

during the normal business hours of the governmental body.” Id.

§ 552.021(b). Public information is defined as “information that

is collected, assembled, or maintained under a law or ordinance

or in connection with the transaction of official business . . .

by a governmental body . . . .” Id. § 552.002 (West Supp. 2000).

Not all information must be made public, however.

“Information is excepted from the requirements of Section 552.021

if it is information considered to be confidential by law, either

constitutional, statutory, or by judicial decision.” Id.

§ 552.101 (West 1994). Some investigatory information is

considered confidential:

(a) Information held by a law enforcement agency or

prosecutor that deals with the detection,

48

We decline to hold that a four-month investigative time-

investigation, or prosecution of crime is excepted from

the requirements of Section 552.021 if:

(1) release of the information would interfere with

the detection, investigation, or prosecution of

crime; [or]

(2) it is information that deals with the detection,

investigation, or prosecution of crime only in

relation to an investigation that did not result

in conviction or deferred adjudication . . . .

. . . .

(b) An internal record or notation of a law enforcement

agency or prosecutor that is maintained for internal

use in matters relating to law enforcement or

prosecution is excepted from the requirements of

Section 552.021 if:

(1) release of the internal record or notation would

interfere with law enforcement or prosecution;

[or]

(2) the internal record or notation relates to law

enforcement only in relation to an investigation

that did not result in conviction or deferred

adjudication . . . .

Id. § 552.108 (West Supp. 2000).

The Act is not intended, it appears, to affect Texas

discovery rules. “This chapter does not affect the scope of

civil discovery under the Texas Rules of Civil Procedure. . . .

Exceptions from disclosure under this chapter do not create new

privileges from discovery.” Id. § 552.005 (West 1994). “A

subpoena duces tecum or a request for discovery that is issued in

compliance with a statute or a rule of civil or criminal

procedure is not considered to be a request for information under

this chapter.” Id. § 552.0055 (West Supp. 2000).

Barrientes also cites to the predecessor of the current Open

Records Act, Texas Revised Civil Statute article 6252-17a

§ 3(a)(8) (repealed 1993). It is questionable what information

could be disclosed under this statute. See, e.g., Opinion of the

Attorney General ORD-177 (Tex. Sept 12, 1977).

49

frame establishes cause as a matter of law. With regard to his

second and third alleged factors constituting cause, the record

on these points is important to our disposition of this case and

warrants discussion.

Barrientes filed his First State Petition on August 16,

1988. On August 19, 1988, he filed a Motion for Discovery in

which he sought to depose District Attorney Ben Euresti and

Garza. The motion further requested:

All reports, memoranda, file notes, docket sheet entries,

diaries or diary entries, calendars, and any other written

documents of any kind whatsoever, whether official or

unofficial, which are in deponent’s possession or under his

control, and which refer or relate to:

. . . .

d. The arrest of Antonio Barrientes, the arraignment, and

all investigation and any legal research relating to Antonio

Barrientes’ arrest for capital murder in April of 1979.

Motion for Discovery, filed Aug. 16, 1988, Ex. B. On September

20, 1988, he filed a Supplemental Motion for Discovery, in which

he requested, inter alia:

2. The Cameron County District Attorney’s legal and

investigative files, including, but not limited to,

correspondence, memoranda, file notes, docket sheet entries,

diaries or diary entries, calendars, exhibits, and any other

written documents of any kind whatsoever, whether official

of unofficial, and which refer or relate to:

(a) the arrest of Antonio Barrientes, the arraignment,

and all investigation and any legal research relating

to Antonio Barrientes’ arrest for capitol [sic] murder

in April, 1979.

. . . .

50

3. All police, highway patrol or sheriff’s files, or

information, relating to the investigation and/or charging

of Antonio Barrientes for each and every action listed in

number 2, above, if in the possession of the Cameron County

District Attorney’s office . . . .

Supplemental Motion for Discovery, filed Sept. 20, 1988 at 1-2.

The limited state court record before us is bereft of any

indication of the disposition of these motions, but we feel safe

in assuming, at this point, that they were denied.15

His First State Petition, which did not include the contents

of the Sheriff’s File, nonetheless detailed what was known at the

time about the 1979 Unadjudicated Murder:

Although not introduced at trial, post-conviction

investigation has shown that when Mr. Barrientes was

arrested and charged for this capital murder, he voluntarily

agreed to submit to a polygraphic examination, that he

submitted to two polygraphic examinations conducted by the

State of Texas and, as a result of those polygraphic

examinations, all charges concerning this alleged prior

unadjudicated murder were dropped against him.

. . . .

Although the State introduced evidence of this alleged

1979 unadjudicated murder (although there was no evidence

that a murder occurred), the State had full knowledge that

Mr. Barrientes had taken and passed a polygraph examination

concerning the alleged 1979 unadjudicated murder. The most

egregious aspect of this is that the State, itself,

administered that polygraph examination and the arresting

15

This assumption is supported by the state trial court’s

Order on Application for Writ of Habeas Corpus, entered August

19, 1988, in which the court found “that there are no

controverted previously unresolved facts which are material to

the legality of petitioner’s confinement.” The Texas Court of

Criminal Appeals disagreed and ordered an evidentiary hearing

regarding Barrientes’s ineffective assistance of counsel claim.

See Ex parte Barrientes, No. 19,007-01 (Tex. Ct. Crim. App. Aug.

24, 1988) (order remanding for evidentiary hearing).

51

officer, Mr. Joe Garza, who testified at the penalty phase

concerning the 1979 arrest for the unadjudicated murder, was

also the officer who released Mr. Barrientes from custody in

1979 when he passed the polygraph examination.

First State Petition at 10, 17-18.

At the evidentiary hearing ordered by the Texas Court of

Criminal Appeals, Barrientes attempted to obtain information

about the Sheriff’s File. Most significant was the following

exchange between Barrientes’s counsel, Mr. Montoya, Garza, the

Court, and counsel for the State, Mr. Cyganiewicz:

Q. BY MR. MONTOYA [to Garza]: Did you have the file with

you at the time you testified [in Barrientes’s 1985

trial]?

MR. CYGANIEWICZ: Your Honor, again, that has

nothing to do with [the ineffective assistance claim].

THE COURT: Sustained. Counsel, get to the

ineffective counsel. This isn’t a fishing expedition.

Q. BY MR. MONTOYA: Did Mr. Davidson discuss with you your

testimony after you had taken the stand in April, 1985?

A. I didn’t talk with Mr. Davidson, no, sir, not that I

can recall. It’s been so long.

Q. Did you have your file with you at the time you

testified in April of 1985?

MR. CYGANIEWICZ: Same objection, your Honor.

Whether he has a file or not with him has nothing to do

with Mr. Davidson.

THE COURT: Objection sustained.

MR. MONTOYA: Your Honor, with all due respect --

THE COURT: The objection was sustained.

State Record, Evidentiary Hearing Vol. I, at 136. These portions

of the record indicate some effort on the part of Barrientes’s

habeas counsel to secure the Sheriff’s File, but the picture of

counsel’s efforts becomes much more remarkable when the

52

affidavits of Bruce A. Montoya and Todd E. Kastetter, two of the

lawyers representing Barrientes, are considered.16

Montoya claims that he attempted to meet with Richard Lara,

an Assistant District Attorney, on May 20, 1988, while on a trip

to Brownsville, but that Lara was unable to meet with him.

Montoya tried to contact Lara again on July 25, 1988, but Lara

would not accept his call. On July 27, Montoya sent Lara a

letter stating that Kastetter would attempt to contact the

District Attorney’s office while in Brownsville on July 28. See

Affidavit of Bruce A. Montoya, Esquire, subscribed and sworn on

September 3, [year missing] at 2-3 [hereinafter “Montoya

Affidavit”].

While in Brownsville on July 28, Kastetter claims to have

met with Luis Saenz, an Assistant District Attorney. Kastetter

requested to see all files regarding Barrientes, including

16

These affidavits were appended to three documents filed

by Barrientes. First, they were appended to Petitioner’s

Combined Motion and Brief in Support of Motion to Amend August

22, 1995 Order Granting Respondent’s “Motion to Dismiss for

Failure to Exhaust State Remedies” filed September 7, 1995 in the

district court. Barrientes then appended them to his

Supplemental Brief in Support of Application for Post-Conviction

Writ of Habeas Corpus (RE: Application of Article 11.071, Sec.

5(a) Exceptions) filed in state court in support of his Second

State Petition. Finally, Barrientes appended them to his

Petitioner’s Rule 59(e) Motion to Alter and Amend This Court’s

February 27, 1998 Order Granting and Denying, in Part,

Petitioner’s Petition for Post-Conviction Writ of Habeas Corpus

(Following Dismissal Without Prejudice for Failure to Exhaust

State Remedies) and Denying Respondent’s Motion for Summary

Judgment, filed on March 13, 1998, after the district court

entered its 1998 Order ruling on his Second Federal Petition.

53

anything pertaining to the 1979 Unadjudicated Murder, and, after

consulting with the District Attorney, Mr. Euresti, Saenz

informed Kastetter that he had no right to review any of the

District Attorney’s files, and he would not be allowed to do so.

See Affidavit of Todd E. Kastetter, Esquire, subscribed and sworn

on Sept. 2, 1997 at 2.

The following day, Kastetter went to the state district

court, still seeking information on the 1979 Unadjudicated

Murder. He had heard that the matter had at one time been set

for trial. The clerk of the court was unable to locate any files

and suggested that Kastetter contact the District Attorney’s

office. See id. at 2-3. From there Kastetter went to meet with

Barrientes’s lawyer for the 1979 case, A.G. Betancourt.

Betancourt remembered little about the case, and the two of them

searched through Betancourt’s storage area for information but

came up empty-handed. See id.

At some point, Montoya and Kastetter tentatively identified

the missing witness as “Castro Bob.” They spent considerable

time searching for him before discovering that Castro Bob was not

the missing witness. See Montoya Affidavit at 4. The two then

located one of the two polygraph reports and discovered the name

of the justice of the peace who had sworn out the arrest warrants

and determined bond issues, Judge Edward Sarabia.

Montoya met with Judge Sarabia, who originally directed

Montoya to the District Attorney’s office but cautioned that the

54

District Attorney would be unlikely to release any information if

the case was still open. After several meetings, Judge Sarabia

gave Montoya a single sheet of the docket book for the 1979

Unadjudicated Murder, indicating that Barrientes’s bond had been

reduced from “no bond” to $5,000 bond. See id. at 5. Judge

Sarabia further suggested that Montoya search through papers in

the attic of the old Cameron County Courthouse, so Montoya and

Kastetter did just that for many hours, but to no avail. See id.

Next, Montoya contacted the Brownsville Police Department

and the Brownsville Sheriff’s Department. Both said that no

records would be released without a subpoena. The Sheriff’s

Department suggested that Montoya contact the District Attorney’s

office. At some point, someone from the Sheriff’s Department

informed Montoya that an investigator named Alex Perez was in

charge of all unsolved capital murders. Montoya tracked Perez

down the next day, October 20, 1989, and Perez produced the file,

but would not allow Montoya to copy it. See id. Finally,

Montoya and Kastetter were allowed to copy the file.17 See id.

17

The State’s argument before this court regarding the

issue of cause warrants comment. In its brief, the State argues:

[There was no] evidence presented in the district court that

Barrientes invoked any lawful process to obtain the file in

question when he had the opportunity to do so. During the

first state evidentiary hearing proceedings, Barrientes was

specifically informed that there “should be” a file

pertaining to the 1979 unadjudicated capital murder.

However, Barrientes did not request a subpoena compelling

the appearance of a custodian of records from the sheriff’s

office, did not seek a court order for the production of the

55

file, and did not request that Detective Joe Garza produce

the file in question. The only allegation that requests

were made comes from his unsupported averments that the

district attorney’s office and sheriff refused to cooperate

with his “informal” requests. Nevertheless, Barrientes

alludes to the fact that, “only by happenstance,” he

obtained the file when he, presumably for the first time,

filed a request under the Texas Open Records Act. In short,

Barrientes could have, but did not, make diligent efforts to

obtain the file in state court. Barrientes was not

prevented from discovering the factual basis for his claims

by some objective factor external to his defense.

Respondent’s Brief at 18-19 (citations and footnote omitted).

The State drops a footnote stating, “In fact, the district court

record is barren of any indication as to whether the file was

obtained before or after the conclusion of the state habeas

proceedings.” Id. at 19 n.9.

First, the State, to our knowledge, has never rebutted,

through affidavits or otherwise, the story as painted by Montoya

and Kastetter. Assuming their affidavits to be accurate, the

State’s attempt to persuade us that Barrientes should have jumped

through some different hoop after being told time and time again

that his only recourse was through the District Attorney’s

office, and after being told by the District Attorney’s office

that he had no legal right to review any files, is, based upon

the incomplete record before us, unpersuasive.

Second, the State’s suggestion that Barrientes should have

requested a court order to secure the File is either at odds with

the record or rather puzzling. It seems obvious to us that

Barrientes did just that when he filed not one, but two very

specific discovery motions. If the State is suggesting that

Barrientes should have gone back to the court after having these

two motions denied, we can only wonder at what point the State

would suggest Barrientes take “no” to mean “no.” If the State

intended to argue that some specific state procedure that should

have been invoked by Barrientes was not, it failed adequately to

develop the argument.

Finally, the State’s assertion that “the district court

record is barren of any indication as to whether the file was

obtained before or after the conclusion of the state habeas

proceeding” is an incorrect statement of the record, of which the

State was, or certainly well should have been, aware. Montoya’s

affidavit states that he first viewed the File on October 20,

56

at 6.

The affidavits provided by Barrientes along with a review of

the record indicate that he may well have cause for failing to

discover the Sheriff’s File before the conclusion of his first

state habeas proceedings. The allegations he makes are the sort

that have led to a finding of cause in previous cases. See

Amadeo v. Zant, 486 U.S. 214, 222 (1988) (finding cause when

county officials concealed evidence); Paradis v. Arave, 130 F.3d

385, 194 (9th Cir. 1997) (finding cause when prosecutor withheld

1989. See Montoya Affidavit at 5. This affidavit was appended

to Petitioner’s Motion to Amend the Court’s Order of August 22,

1995, Dismissing the Petition for Failure to Exhaust State

Remedies. The State even responded to this motion and remarked,

“Barrientes . . . contend[s] . . . that the evidence he now

offered was in the state’s possession at the time of the first

state habeas proceeding and he should not be penalized for the

state’s failure to provide him with it . . . .” Response to

Petitioner’s Motion to Amend the Court’s Order of August 22,

1995, Dismissing the Petition for Failure to Exhaust State

Remedies, filed October 3, 1995 at 2. Assuming the State forgot

about this motion and its response between 1995 and the time it

filed its brief in this court, Barrientes’s Second Federal

Petition provided a reminder, “The Cameron County Sheriff’s

Department’s file for the 1979 unadjudicated murder . . . was

first disclosed to Petitioner’s habeas counsel several months

after the [first] Federal Habeas Petition was filed . . . .”

Second Fed. Petition at 18. We could include further references

to the record but find it unnecessary.

The bottom line is that whether Barrientes had access to

this File during his first state habeas proceedings is a central

issue in this case. For the State to insinuate, for the first

time in the second appeal in this protracted litigation, that

Barrientes not only had access to the Sheriff’s File during his

first state habeas proceedings, but that he may have actually had

the File at that time is reckless, especially considering the

numerous references to when Barrientes actually got hold of the

Sheriff’s File contained in the record and the State’s complete

failure to raise this assertion earlier.

57

Brady evidence and quashed subpoena in first habeas proceedings);

Kirkpatrick v. Whitley, 992 F.2d 491, 495 (5th Cir. 1993)

(finding cause when evidence was suppressed and falsified coupled

with state and federal laws that deterred discovery of the

evidence); Bliss v. Lockhart, 891 F.2d 1335, 1341 (8th Cir. 1990)

(noting that “prosecutorial interference with disclosure of the

full evidence may indeed constitute cause”); Strickler, 119 S.

Ct. at 1952 (acknowledging that several factors taken together

can constitute cause). Moreover, we note that at each stage of

his post-conviction collateral attack on the penalty phase of his

trial, he presented the evidence available to him, discussed the

evidence he hoped to uncover through discovery, and argued the

claims he felt were appropriate based upon the available evidence

and factual assertions. His counsel, it would appear, diligently

pursued the Sheriff’s File out of court and moved to discover the

File in court, which motions were denied by the state courts.

At the beginning of our examination of cause and prejudice

we noted that the district court has never addressed these

issues. We stated that our task was to determine whether cause

and prejudice “may be fairly resolved from the record presented.”

See supra. We determine that the issue of cause cannot be

adequately resolved on the record before us. The affidavits

supplied by Barrientes, while compelling, have never been

answered by the State. We find it necessary to remand this case

to the district court with instructions to conduct an evidentiary

58

hearing on the issue of cause.18 We, of course, do not instruct

the district court on what decision it should make on the issue

of cause.

b. Prejudice

To overcome a procedural default, a habeas petitioner must

demonstrate “actual prejudice as a result of the alleged

constitutional violations.” Coleman, 501 U.S. at 745. Prejudice

can be examined at both the guilt/innocence and penalty phases of

a capital murder trial. See Strickler, 119 S. Ct. at 1955; id.

at 1956 (Souter, J., concurring in part and dissenting in part)

(“As the Court says, however, the prejudice enquiry does not stop

at the conviction but goes to each step of the sentencing process

. . . .”). The Supreme Court has been reluctant to define the

precise contours of the prejudice requirement. See Amadeo, 486

U.S. at 221. However, the Strickler Court recently explained

that in the context of establishing cause and prejudice for

procedurally defaulting on a Brady claim, a petitioner must

convince the court that:

18

See Jenkins v. Anderson, 447 U.S. 231, 234-35 n.1 (1980)

(“[A]pplication of the ‘cause’-and-‘prejudice’ standard may turn

on factual findings that should be made by a district court.”);

Barnard v. Collins, 13 F.3d 871, 878 (5th Cir. 1994) (“[T]he

district court’s determination that [petitioner’s] claim

constituted an abuse of the writ because he could not show ‘cause

and prejudice’ for his failure to raise this claim in his earlier

petition seems premature in the absence of an evidentiary hearing

or other appropriate proceeding . . . .”).

59

there is a reasonable probability that the result of the

trial would have been different if the suppressed documents

had been disclosed to the defense. . . . The question is

not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether

in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence.

119 S. Ct. at 1952 (internal citations and quotation marks

omitted). The Court explained that the prejudice inquiry in the

situation presented in Strickler mirrored the materiality prong

of the underlying Brady claim. See id. at 1949 (“In this case,

cause and prejudice parallel two of the three components of the

alleged Brady violation itself.”). In Williams v. Taylor,

however, the Supreme Court stated, when addressing the issue of

prejudice for procedural default, “[q]uestions regarding the

standard for determining the prejudice that petitioner must

establish to obtain relief on these claims can be addressed by

the [lower courts] in the course of further proceedings.” 120 S.

Ct. 1479, 1494 (2000). This statement implies that the

“reasonable probability” standard may not guide the prejudice

inquiry in the case of every defaulted habeas claim. We leave to

the district court the task of establishing for each claim the

proper standard to guide the determination of actual prejudice,

should Barrientes establish cause for his default.

4. A hearing on the merits

60

Finally, we must address two related arguments advanced by

the State. First, the State argues at several points in its

brief that the district court erred in making findings of fact

related to the Sheriff’s File without conducting an evidentiary

hearing. The State then argues that even if Barrientes can

establish cause and prejudice to prevent his claims from being

procedurally barred, the district court still cannot reach the

merits of his claims because, as previously stated, an

evidentiary hearing is required, and Barrientes cannot establish

the so-called “cause and actual innocence” required by 28 U.S.C.

§ 2254(e)(2) before a federal habeas court is permitted to hold

an evidentiary hearing.19 See, e.g., Nobles, 127 F.3d at 423

n.33 (discussing the cause and actual innocence standard). We

19

Section 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of

a claim in State court proceedings, the court shall not hold

an evidentiary hearing on the claim unless the applicant

shows that

(A) the claim relies on

(I) a new rule of constitutional law, made

retroactive to cases on collateral review by

the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of

due diligence; and

(B) the facts underlying the claim would be sufficient

to establish by clear and convincing evidence that

but for constitutional error, no reasonable

factfinder would have found the applicant guilty

of the underlying offense.

28 U.S.C. § 2254(e)(2) (1997).

61

begin by deciding whether the district court should have

conducted an evidentiary hearing in this case. Finding that it

should have, we proceed to dispose of the State’s § 2254(e)(2)

argument.

The Rules Governing Section 2254 Cases in the United States

District Courts provide guidance on the appropriateness of an

evidentiary hearing in cases such as this. Rule 8(a) states:

If the petition is not dismissed at a previous stage in the

proceeding, the judge, after the answer and the transcript

and record of state court proceedings are filed, shall, upon

a review of those proceedings and of the expanded record, if

any, determine whether an evidentiary hearing is required.

If it appears that an evidentiary hearing is not required,

the judge shall make such disposition of the petition as

justice shall require.

28 U.S.C. foll. § 2254 Rule 8(a) (1994). The decision whether to

conduct an evidentiary hearing is left to the sound discretion of

the district court, and we review its decision for an abuse of

that discretion. See McDonald v. Johnson, 139 F.3d 1056, 1059

(5th Cir. 1998). We have stated before that when “[t]he district

court ha[s] sufficient facts before it to make an informed

decision on the merits of [the habeas petitioner’s] claim” it

does not abuse its discretion in failing to conduct an

evidentiary hearing. Id. at 1060.

Most often, this situation arises when the district court

denies the petitioner relief without conducting an evidentiary

hearing. But the rule also applies in a situation where the

district court has sufficient facts before it and grants the writ

62

without a hearing. See Hicks v. Wainwright, 633 F.2d 1146, 1150

(5th Cir. Unit B 1981) (“The State argues that the district court

should have held an evidentiary hearing. An evidentiary hearing

is necessary only when facts are at issue. When the only

question is legal rather than factual no evidentiary hearing is

needed.”). If, however, sufficient factual development has not

occurred, and the district court grants the writ, we have in the

past remanded the case for a hearing. See Thomas v. Estelle, 582

F.2d 939 (5th Cir. 1978).

In this case, we agree with the State that the district

court lacked sufficient undisputed facts to make an informed

decision and therefore abused its discretion in failing to

conduct an evidentiary hearing. An evidentiary hearing would

have provided both sides an opportunity to present evidence

regarding, inter alia, whether the copies appended to

Barrientes’s petition are what he claims them to be and whether

they are exculpatory or impeaching in nature. Our normal course

of action would be to remand this case for a hearing. Before

doing so, however, we must determine whether a hearing is

precluded by § 2254(e)(2).

Section 2254(e)(2) provides that when a habeas petitioner

has “failed to develop the factual basis of a claim in State

court proceedings, the [federal] court shall not hold an

evidentiary hearing . . . unless the applicant” establishes so-

63

called “cause and actual innocence.”20 The State argues that

§ 2254(e)(2) precludes the evidentiary hearing that is needed in

this case because Barrientes cannot, at the very least, meet the

actual innocence prong of the standard established by

§2254(e)(2). Barrientes responds that § 2254(e)(2) does not

apply to his case, because he has not “failed to develop the

factual basis of a claim in State court proceedings.”

We have previously addressed the question of whether a

petitioner has “failed to develop” the factual basis of a claim

in McDonald v. Johnson, 139 F.3d 1056 (5th Cir. 1998). In

McDonald, as in this case, the habeas petitioner was denied an

evidentiary hearing in state court. We held that “a petitioner

cannot be said to have ‘failed to develop’ a factual basis for

his claim unless the undeveloped record is a result of his own

decision or omission.” Id. at 1059; see also Clark v. Johnson,

202 F.3d 760, 765 (5th Cir. 2000) (applying the McDonald

standard); Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998)

(same).

Any question regarding the “failed to develop” standard was

put to rest by the Supreme Court in Williams v. Taylor, 120 S.

20

Section 2254(e)(2) prohibits a court from conducting a

hearing, regardless of which side requests it. We therefore

agree with the State, as a general matter, that it can argue that

the merits of a habeas claim cannot be reached because a hearing

is needed to resolve factual issues underlying the claim, but the

district court is precluded by § 2254(e)(2) from conducting the

needed hearing.

64

Ct. 1479 (2000). There, the Court stated that “[u]nder the

opening clause of § 2254(e)(2), a failure to develop the factual

basis of a claim is not established unless there is a lack of

diligence, or some greater fault, attributable to the prisoner or

the prisoner’s counsel.” Id. at 1488. The Supreme Court in

Williams also linked the “failure to develop” inquiry with the

cause inquiry for procedural default. See id. at 1494 (“Our

analysis [of § 2254(e)(2)] should suffice to establish cause for

any procedural default petitioner may have committed in not

presenting these claims to the Virginia courts in the first

instance.”). In this case, if Barrientes establishes cause for

overcoming his procedural default, he has certainly shown that he

did not “fail to develop” the record under § 2254(e)(2).

Accordingly, if the district court determines that Barrientes has

established cause and prejudice for his procedural default, it

should proceed to conduct an evidentiary hearing on any claim for

which cause and prejudice exists. It should then revisit the

merits of any such claim anew.21

IV. BARRIENTES’S APPLICATION

21

We note that if the district court determines that cause

and prejudice exist for Barrientes’s default of any claim, its

findings in that regard may directly address its merits

determination of certain elements of that claim. See, e.g.,

Strickler, 119 S. Ct. at 1949 (“In this case, cause and prejudice

parallel two of the three components of the alleged Brady

violation itself.”).

65

Barrientes wishes to appeal ten claims that were denied by

the district court.22 Because he seeks to initiate an appeal

after the effective date of AEDPA, “the right to appeal is

22

Barrientes’s Second Federal Petition also contained the

following claims that were implicitly denied by the district

court and that are not before us because Barrientes has not

raised them in his COA application. Barrientes alleged that the

prosecutor made improper comments during closing argument at the

penalty phase regarding the character of the victim and that he

made comments during closing argument of the guilt/innocence

phase regarding the failure of the defense to call certain

witnesses. Barrientes also claimed that his trial counsel was

ineffective for failing to make certain objections during the

trial.

Regarding the introduction of evidence of unadjudicated

crimes, Barrientes argued that: the introduction of such

evidence is unreliable, in violation of the Eighth Amendment;

allowing the introduction of such evidence in capital cases while

disallowing the introduction of such evidence in noncapital cases

violates the Equal Protection Clause of the Fourteenth Amendment;

and allowing the introduction of such evidence without prior

notice renders a defendant’s counsel ineffective. Barrientes

claimed that the evidence presented at the penalty phase of his

trial was insufficient to support a finding of future

dangerousness. He also claimed that the judge’s failure to allow

Barrientes’s counsel to ask venire members about their

understanding of what a life sentence means under Texas law

denied Barrientes the right to an impartial jury under the Sixth

Amendment, created the risk that the death sentence might be

imposed based on mistaken notions of parole eligibility in

violation of the Eight Amendment’s guarantee against cruel and

unusual punishment, and violated his right to due process.

Barrientes asserted that neither the judge’s charge to the

jury following the penalty phase of trial nor the special issues

form notified the jury that their answers to the special issues

necessarily determined whether or not the death penalty would be

imposed. Such failure created the unacceptable risk that the

jury would not understand its responsibility and violated the

Sixth, Eighth, and Fourteenth Amendments. Finally, Barrientes

claimed that the Texas Death Penalty statute, on its face and as

applied, violates the Fifth, Sixth, Eighth, and Fourteenth

Amendments.

66

governed by the certificate of appealability (COA) requirements

now found at 28 U.S.C. § 2253(c).” Slack, 120 S. Ct. at 1600.

Barrientes has applied to this court for a CPC. We treat an

application for a CPC as an application for a COA.23 See Lucas

v. Johnson, 101 F.3d 1045, 1046 (5th Cir. 1996). To obtain a

COA, a prisoner must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to

make such a showing, a prisoner must demonstrate “that reasonable

jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement

to proceed further.” Slack, 120 S. Ct. 1603-1604 (internal

quotation marks omitted). In a case such as this, where the

prisoner seeks to appeal the district court’s merit-based denial

of certain constitutional claims, the Supreme Court has explained

that “[t]he petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional

claims debatable or wrong.” Id. at 1604.

As we have previously explained, the determination of

whether a COA should issue must be made by viewing the

petitioner’s arguments through the lens of the deferential scheme

laid out in 28 U.S.C. § 2254(d). See Hill v. Johnson, 210 F.3d

481, 484-85 (5th Cir. 2000). Under § 2254(d), when reviewing a

23

We refer to his CPC application as a COA application

throughout the remainder of this opinion.

67

claim adjudicated by a state court on the merits, we pay

deference to the state court’s decision regarding that claim,

unless the decision “[is] contrary to, or involve[s] an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or . . .

[is] based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1) & (2). A decision is “contrary to . . .

clearly established Federal law, as determined by the Supreme

Court of the United States” “if the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently

than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 120 S. Ct. 1495,

1523 (2000). A decision “involve[s] an unreasonable application

of[] clearly established Federal law, as determined by the

Supreme Court of the United States” “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 prisoner’s case.” Id. Factual

findings of the state court have a presumption of correctness,

which presumption the petitioner can only rebut by “clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

Barrientes raises four types of issues in his application.

He argues, first, that he was denied effective assistance of

68

counsel; second, that his trial proceedings were plagued by

prosecutorial misconduct; third, that the admission of evidence

of the 1979 Unadjudicated Crime violated his rights under the

Eighth and Fourteenth Amendments to the United States

Constitution; and, finally, that jury deliberations were tainted

by the consideration of facts not in the record. We address each

type of claim in turn.

A. Ineffective Assistance

Barrientes raises three claims of ineffective assistance of

counsel. First, he argues that counsel was ineffective for

failing to investigate or interview witnesses during the guilt

phase of his trial. Second, he asserts that counsel was

ineffective for failing to discover and present mitigating

evidence during the penalty phase of his trial. Finally, he

claims that counsel was ineffective for failing to obtain

complete criminal records on Barrientes and his co-defendant and

request a severance. As we explained in more detail in Part III-

C-2, supra, claims of ineffective assistance of counsel are

evaluated under the familiar standard first enunciated by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

Under that standard, a habeas petitioner must “demonstrate both

that counsel’s performance was deficient and that the deficiency

prejudiced the defense.” Crane, 178 F.3d at 312.

69

1. Failing to investigate at the guilt phase of the trial

Barrientes argues that his trial counsel, Mr. Davidson, was

ineffective for failing to investigate or interview witnesses

during the guilt phase of the trial. He asserts, first, that

Davidson failed to investigate Felix Sanchez. Had he done so, he

would have discovered evidence to impeach Sanchez’s testimony.

Barrientes provides an affidavit from Sanchez’s mother that

contradicts certain portions of Sanchez’s testimony. He also

asserts that Sanchez’s wife maintains that Sanchez was threatened

by the police in order to make him testify. Second, Barrientes

asserts that Meza, the jailhouse informant, was also threatened

to secure his testimony.24

The State responds that this claim is procedurally barred.

As we discussed in Part III-D-1-c, supra, Barrientes, in his

First State Petition, presented no evidence concerning the

threats allegedly made to secure the testimony of Sanchez and

Meza and the statements made by Sanchez’s mother. This claim was

therefore considered unexhausted when Barrientes filed his

Amended First Federal Petition. Barrientes’s Second State

Petition, which contained the same evidence and factual

allegations he offers us, was rejected by the Texas Court of

24

Barrientes provides no affidavits to support the

statements he alleges Meza and Sanchez’s wife made to habeas

counsel, and we take no position on the reliability or

sufficiency of this evidence.

70

Criminal Appeals as an abuse of the writ. In order for us to

consider this claim, therefore, Barrientes must establish cause

and prejudice for his procedural default. Barrientes asserts

neither cause for his procedural default nor that failure to

address this issue will result in manifest injustice, but simply

argues that he has not defaulted because the Texas abuse-of-the-

writ doctrine did not provide an adequate and independent state

ground. Having previously resolved that issue against

Barrientes, see Part III-D-1-b, supra, we will not consider this

ineffective assistance of counsel issue. Cf. Clark v. Collins,

19 F.3d 959, 966 (5th Cir. 1994) (“As [petitioner] alleges no

cause for his procedural default and inasmuch as failure to

consider it will not result in manifest injustice, this

assignment of error fails.”); Meanes v. Johnson, 138 F.3d 1007,

1011 (5th Cir. 1998) (“If a petitioner fails to show cause for

his procedural default, the court need not address the prejudice

prong of the test.”).

2. Failing to discover or present mitigating evidence at the

penalty phase of the trial

Barrientes’s second claim of ineffective assistance centers

on the failure of Davidson to discover or present mitigating

71

evidence at the guilt phase of the trial.25 In his first state

habeas proceedings, Barrientes was granted an evidentiary hearing

on his claim of ineffective assistance. The state trial court

made findings of fact and conclusions of law, for which

conclusions it relied on the two-part Strickland inquiry, and

those findings and conclusions were adopted by the Texas Court of

Criminal Appeals.26 This constitutes an adjudication on the

merits for purposes of § 2254(d). See Hill, 210 F.3d at 485.

The Texas Court of Criminal Appeals denied Barrientes relief on

this ineffective assistance claim, as did the district court.

Barrientes asserts that had Davidson properly investigated,

he would have discovered mitigating evidence to present at the

penalty phase of the trial. This evidence, which was revealed in

large part by testimony from Barrientes’s mother and former

priest at the state hearing, includes the fact that Barrientes

was married and had two children, had at one time been an altar

25

In this same section of his brief, Barrientes asserts

that Davidson failed to object to the prosecutor’s comments

concerning the virtuousness of the victim and testified on behalf

of Barrientes’s co-defendant. He fails to develop any argument

that either of these actions constituted ineffective assistance

of counsel under Strickland. We, therefore, do not consider

these claims. See Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th

Cir. 1999).

26

The state court judge that presided over Barrientes’s

evidentiary hearing on this issue was the same judge that

presided over his capital murder trial. The presumption of

correctness afforded the state court’s determination of factual

issues is, therefore, especially strong. See Clark v. Johnson,

202 F.3d at 764.

72

boy, had served in the military and had been honorably

discharged, and had trouble with substance abuse and had sought

professional help shortly before the murder.

The state habeas court found that Davidson would not have

called Barrientes’s wife or mother to testify, even had he known

of the evidence listed above, because of his concern that the

value of any mitigating evidence would be outweighed by the risk

of damaging evidence being brought out during cross-examination

of these witnesses.27 Moreover, the state habeas court pointed

out that Barrientes’s mother avoided discussing any aspect of

Barrientes’s life in the ten years prior to the murder. In

response to the state habeas court’s findings, Barrientes simply

asserts that the findings of the state habeas court are not

entitled to deference because “[t]he record is clear that Mr.

Davidson did not make a fully-informed strategic decision with

regard to his failure to conduct any investigation in preparation

of his defense of the . . . penalty phase.” Barrientes’s COA

Brief at 38. The record reveals that Davidson conferred with

Barrientes on numerous occasions and met with Barrientes’s mother

at least three times before the trial began. Barrientes has

failed to present clear and convincing evidence that the findings

of the state habeas court are not entitled to a presumption of

27

Barrientes’s common-law wife did not testify at the state

habeas hearing. It is therefore impossible to ascertain what the

content of her testimony would have been.

73

correctness. See Hernandez v. Johnson, No. 99-10446, 2000 WL

691603, at *5 (5th Cir. May 30, 2000) (applying § 2254(e)(1)

deference in the context of a COA application).

We conclude that Barrientes has not made a substantial

showing of the denial of a constitutional right. We have

previously held that a tactical decision not to present character

evidence during the penalty phase of a capital murder trial

because it would open the door for incidents of prior misconduct

was not unsound and therefore did not constitute deficient

performance. See Ward v. Whitley, 21 F.3d 1355, 1361 (5th Cir.

1994). As long as Davidson’s performance was not deficient, we

need not examine, under the second prong of Strickland, whether

his decision prejudiced the defense. See Lincecum v. Collins,

958 F.2d 1271, 1278 (5th Cir. 1992). Barrientes has failed to

demonstrate that, given the findings of the state habeas court

and our precedent, “reasonable jurists could debate whether . . .

the petition should have been resolved in a different manner

[with regard to this claim] or that the issue[] presented w[as]

adequate to deserve encouragement to proceed further.” Slack,

120 S. Ct. 1603-1604.

3. Failure to request criminal records and request a severance

In his final claim of ineffective assistance of counsel,

Barrientes argues that “[t]rial Counsel failed to determine the

74

criminal records of Mr. Barrientes and his co-defendant prior to

and during the trial and sentencing hearing. Had Mr. Davidson

investigated Mr. Barrientes’ prior criminal record, he would have

discovered a statutory basis for severance of the trial from Mr.

Barrientes’ co-defendant.” Barrientes’s COA Brief at 25.

Davidson originally filed a motion for severance, but when it

came up for consideration, he stated that he knew of no statutory

reason for the severance. Under Texas law, however, Barrientes

claims that he was statutorily entitled to severance because his

co-defendant, Gonzales, had a felony conviction, and Barrientes

did not. Barrientes argues that Davidson’s failure to discover

Gonzales’s record and follow through with his motion for

severance constituted objectively unreasonable assistance, and

that he was prejudiced thereby. At the state evidentiary

hearing, however, it became evident that Davidson’s failure to

discover Gonzales’s record was a result of his strategic decision

not to pursue a severance. The following exchange took place

between Davidson and counsel for the State:

Q. You mentioned also that even if I knew about those

convictions of David Gonzales, I would not have asked

for a severance because of my trial strategy and tactic

to do that; is that correct?

A. Yes.

Q. Can you just briefly explain what your thinking was

that you wanted them to be tried together as your

tactic?

A. Well, during that -- Between the time those motions

were filed and the hearings were had on those motions,

75

Mr. Gilman [trial counsel for Gonzales] advised me that

his client had told me that --

MR. KARR: Your Honor, I’m going to object to

what Mr. Gilman is telling Mr.

Davidson.

THE COURT: Overruled.

THE WITNESS: I wished [sic] I didn’t have to

testify to this, Your Honor.

Q. BY MR. CYGANIEWICZ: Okay. Well, --

A. That after Tony robbed the store, he came back to where

Gonzales rode with the car and told David, “I had to

kill the son of a bitch.”

Q. But for some reason you decided this was a strategic

move on your part? You wanted them tried together?

A. Well, at that time, David Gonzales’ parents, I knew,

were putting pressure on Pete Gilman in regards to Mr.

Gonzales because he had tried to commit suicide a

couple of times in the jail. And from what my client

was telling me, that he was going to take the stand and

exonerate–he didn’t use that word–exonerate David

Gonzales. In my own mind, my strategy was: The best

way to keep him from taking the stand was to try them

together.

State Record, Evidentiary Hearing Vol. I, at 86-88. The state

habeas court found:

After filing the motion for severance, Davidson soon

became convinced that it would not be in his client’s best

interest to have his case severed from that of Gonzales. If

the Court had ever indicated that the severance would be

granted, he would have withdrawn the motion. Davidson knew

Barrientes would testify that Gonzales “had nothing to do

with the entire transaction”; Barrientes “insisted on it.”

From Gonzales’s attorney Davidson learned that if Gonzales

should testify, he would testify that after Barrientes

robbed the store he came back to the car and told Gonzales

“I had to kill the son of a bitch.” Davidson concluded that

the best way to keep Gonzales off the stand was to try the

Defendants together with Barrientes exonerating Gonzales.

Davidson’s trial strategy was based upon his conclusion that

76

Barrientes [sic] “only chance was to keep Gonzales off the

stand and to convince the jury Sanchez was the trigger man.”

Indeed Davidson’s strategy partly succeeded; Gonzales did

not testify.

Findings of Fact and Conclusions of Law entered November 10,

1988, at 2. Like Barrientes’s second ineffective assistance of

counsel claim, this claim was adjudicated on the merits for

purposes of § 2254. It is clear from the record that Davidson

made a tactical decision to avoid severance, and the state habeas

court so found. Barrientes is unable to rebut the presumption of

correctness afforded the finding of the state habeas court. See

28 U.S.C. § 2254(e)(1).

As the Supreme Court explained in Strickland:

No particular set of detailed rules for counsel’s conduct

can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a

criminal defendant. Any such set of rules would interfere

with the constitutionally protected independence of counsel

and restrict the wide latitude counsel must have in making

tactical decisions.

466 U.S. 688-89. Barrientes makes no convincing argument that

the tactical decision of his trial counsel should not be given

deference. Because Davidson’s decision to avoid severance falls

so clearly within the range of objective reasonableness, we need

not examine whether the decision prejudiced the defense within

the meaning of Strickland. See Lincecum, 958 F.2d at 1278.

Barrientes has consequently failed to make a substantial showing

of the denial of a constitutional right. He has neither

convinced us that reasonable jurists could debate whether the

77

performance of his trial counsel was objectively unreasonable in

this regard nor that reasonable jurists could debate whether the

state court made an objectively unreasonable application of the

Strickland standard to the facts of this case.

B. Prosecutorial Misconduct

Barrientes raises several claims under the heading of

prosecutorial misconduct. We address each claim in turn.

1. Threats made to secure the testimony of Sanchez and Meza

Barrientes first claims that the prosecutor failed to reveal

that threats and coercion were used to secure the testimony of

both Sanchez and Meza. He claims that this conduct violated both

Brady and Giglio. We need not reach the merits of this claim

because it has been procedurally defaulted. The claim relies on

the statements allegedly made to habeas counsel by Sanchez’s wife

and Meza. We previously determined in Part IV-A-1, supra, that

claims dependant upon these factual allegations are procedurally

barred, and Barrientes does not assert cause or manifest

injustice to overcome the procedural bar.

2. Improper suggestion that the jury would not have to accept

responsibility for the imposition of the death sentence

78

Barrientes’s second claim centers around certain comments

that he asserts “intimate[d] that the jury would not have to

accept responsibility for imposition of the death sentence.”

Barrientes’s COA Brief at 43. While Barrientes does not cite to

any case in support of his claim, we assume that he alleges a

violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), in

which the Supreme Court held “that it is constitutionally

impermissible to rest a death sentence on a determination made by

a sentencer who has been led to believe that the responsibility

for determining the appropriateness of the defendant’s death

rests elsewhere.” Id. at 328-29.

Barrientes points to comments made by the prosecutor during

voir dire. The prosecution asked one eventual juror, “Do you

understand, sir, that you as an individual, or the jurors,

collectively, you do not assess the death penalty. If anyone

does that it is the judge. You understand that?”28 State Record

Vol. IV, at 132. To another eventual juror, the prosecutor

stated, “You never assess the death penalty. That’s up to the

28

We note that the following exchange also took place

between this eventual juror and the prosecutor:

Q. Did you have any questions of me, anything at all about

the death penalty or anything?

A. No, sir. The Judge did a good job of getting his point

across this morning.

79

Judge.”29 State Record Vol. VI, at 778. Barrientes argues that

this conduct was aggravated by the trial court’s refusal to allow

the defense to discuss with members of the venire their

understanding of a life sentence under Texas law.

Barrientes fails to make a substantial showing of the denial

of a constitutional right. In Montoya v. Scott, we explained

that:

[i]n Dugger v. Adams, 489 U.S. 401 (1989), the Supreme Court

clarified its holding in Caldwell and held that to

“establish a Caldwell violation, a defendant necessarily

must show that the remarks to the jury improperly described

the role assigned to the jury by local law.” Id. at 407.

In evaluating a Caldwell claim, we look to the “total trial

scene,” including jury selection, the guilt phase of the

trial, and the sentencing hearing, examining both the

court’s instructions and counsel’s arguments to the jury.

65 F.3d 405, 420 (5th Cir. 1995) (some citations omitted). At

the time of Barrientes’s conviction, the applicable Texas statute

provided, in pertinent part that “[i]f the jury returns an

affirmative finding on each issue submitted under this article,

the court shall sentence the defendant to death.” TEX. CODE CRIM.

29

We note that the following exchange occurred between the

prosecutor and the eventual juror shortly after the above quoted

statement:

Q. Okay. Now, if you answer both of these [special

questions during the penalty phase] yes then you leave

the courtroom with the other jurors. You go home.

A. Okay.

Q. Then the judge is obligated under the law to assess the

death penalty.

A. Oh, I see.

80

P. ANN. art. 37.071(e) (West 1981). In Montoya, the judge

instructed the jury that “[i]n capital murder cases the jury does

not assess punishment. . . . Now, if you answer the two questions

yes, then the Court, the judge, is required to assess the

punishment of death to the accused.” 65 F.3d at 420 n.31. We

determined that, in making that comment, “the trial court did not

misinform the jury of its role under local law and therefore did

not violate Caldwell.” Id. at 421. Likewise, here, the comments

by the prosecutor were accurate under local law.

Moreover, looking at the total trial scene, it is clear that

the jury was not misinformed. Indeed, prior to jury selection

the judge informed all the venire members that:

In an ordinary case after hearing that evidence you as

a jury would go out and decide his punishment. That is

whether he’s going to get ten years or twenty years or life

in the penitentiary, depending on how you feel about the

seriousness of the offense and the character of the

defendant.

In a capital murder case the jury does not decide the

punishment, and I’ll say that again: In a capital murder

case at the end of the punishment stage the jury does not

decide the punishment, rather, I, as the Judge, ask you two

fact questions and you, as a jury, will either answer those

questions yes or no.

. . . .

However, our law provides that you must know that if

you answer yes to both of those questions the Judge must

impose the death penalty upon the defendant.

If you answer the two questions, both of them yes, then

the Judge must assess the punishment of death. If you

answer either or both of the questions no then the Judge

must assess the penalty of life in prison.

81

So while you do not assess punishment our law says you

must know and understand that you answers as given will

determine whether the Judge gives death or life . . . .

State Record Vol. IV, at 19-21. Barrientes has failed to

demonstrate “that reasonable jurists could debate whether . . .

the petition should have been resolved in a different manner or

that the issue[] presented [is] adequate to deserve encouragement

to proceed further.” Slack, 120 S. Ct. 1603-1604.

3. Elicitation of unsubstantiated hearsay and unsubstantiated

testimony regarding threats

Because Barrientes’s third and fourth claims under the

heading of Prosecutorial Misconduct are related and deserve

little comment, we dispose of them together. He claims that the

prosecutor improperly elicited testimony from Mr. Sanchez that he

was threatened if he testified. He also claims that the

testimony of Daniel Agado, the court security officer, indicating

that Barrientes had threatened Sanchez while in Agado’s custody,

was unreliable because Agado had testified similarly in another

case.

As to the elicitation of unsubstantiated hearsay, Barrientes

points to no constitutional right that was violated. Counsel for

Barrientes’s co-defendant brought up threats during his cross-

examination of Sanchez. The prosecutor returned to the topic

during redirect. Counsel for the co-defendant objected, and the

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judge overruled his objection. Barrientes’s counsel objected;

the judge brought the line of questioning to an end, and the

trial moved on. We are not even convinced that the prosecutor

erred, let alone that he committed misconduct of constitutional

magnitude. We assume that the claim regarding Agado is a Giglio

claim. As we see it, no reasonable jurists could debate whether

Barrientes has proved that Agado’s statement was actually false.

Any Giglio claim would, therefore, necessarily fail. See Nobles,

127 F.3d at 415. Barrientes has made no showing of a denial of a

constitutional right regarding these claims.

4. Improper comment on Barrientes’s failure to testify

Barrientes’s fifth and final claim under the heading of

prosecutorial misconduct is that the prosecutor, during closing

argument of the penalty phase, improperly commented on

Barrientes’s failure to testify. The prosecutor stated:

Let’s go to the second [question]. Whether or not

there’s a probability that the defendant, Barrientes and/or

Gonzales, would commit criminal acts of violence that would

constitute a continuing threat to society.

Whether or not it’s probable that Barrientes and/or

Gonzales would commit criminal acts of violence that would

constitute a continuing threat to society.

Well, you heard Mr. Garza get up and testify that he

arrested Barrientes back in ‘79 for another capital murder

but that witness disappeared in that. I’ll leave that to

your thoughts. Another capital murder back in 1979.

Here we are again with another capital murder. What’s

next? A witness disappeared. I wonder where the witness

83

is. I wonder. He knows. He knows where the witness is as

he sits there right now. He knows. He knows.

State Record Vol. IX at 40-41 (emphasis added). Barrientes

claims that the emphasized statements constituted an

impermissible comment on his failure to testify. We have

included the immediately preceding comments of the prosecutor to

place the complained-of comments in perspective. Barrientes’s

counsel did not object to the comments, and immediately following

these comments, the prosecutor moved on to an unrelated topic.

We must first decide whether this claim was adjudicated on

the merits in state court for purposes of § 2254. Barrientes did

not raise this claim in his direct appeal, but he did raise it in

every habeas petition he filed. He also raised it in his brief

in support of his application for COA in the district court. No

court has ever addressed the claim specifically. After

Barrientes filed his First Habeas Petition, the state trial court

found “that there [were] no controverted previously unresolved

facts which are material to the legality of petitioner’s

confinement,” and consequently forwarded the application to the

Texas Court of Criminal Appeals. Ex parte Barrientes, No.

19,007-01 (Tex. Dist. Ct. Aug. 19, 1998) (order on application

for writ of habeas corpus). The Texas Court of Criminal Appeals,

after ordering an evidentiary hearing to address Barrientes’s

claims of ineffective assistance of counsel, concluded that “none

of applicant’s fourteen allegations have merit. Accordingly,

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[the Texas Court of Criminal Appeals decided] that the

application should be in all things DENIED.” See Ex parte

Barrientes, No. 19,007-01, order at 2 (Tex. Ct. Crim. App. Feb.

1, 1989). The district court did not explicitly address this

claim in either its 1995 Order or its 1998 Order.

We have established a three-part inquiry to determine

whether a claim has been adjudicated on the merits for purposes

of § 2254. When the last state adjudication of the claim is

silent or ambiguous, “the federal court should ‘look through’ to

the last clear state decision on the matter.” Jackson v.

Johnson, 194 F.3d 641, 651 (5th Cir. 1999). Where, as is the

case here, the claim was not raised on direct appeal, we must

determine whether the last state adjudication was on the merits.

See id. To do so, “we consider ‘(1) what the state courts have

done in similar cases; (2) whether the history of the case

suggests that the state court was aware of any ground for not

adjudicating the case on the merits; and (3) whether the state

courts’ opinions suggest reliance upon procedural grounds rather

than a determination on the merits.’” Id. (quoting Green v.

Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)).

We begin with the first prong, which requires us to look at

what state courts have done in similar cases. The well-settled

rule in Texas appears to be that, “[u]nless the arguments of the

prosecutor are so prejudicial that no instruction could cure the

harm, the failure to timely object waives any error.” McGee v.

85

State, 774 S.W.2d 229, 240 (Tex. Crim. App. 1989) (en banc); see

also Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989) (en

banc); Van Zandt v. State, 932 S.W.2d 88, 92-93 (Tex. App. 1996).

An argument is “so prejudicial that no instruction could cure the

harm” if it “is clearly calculated to inflame the minds of the

jurors and is of such character as to suggest the impossibility

of withdrawing the impression produced.” Van Zandt, 932 S.W.2d

at 93 n.1. We are unpersuaded that the statements made by the

prosecutor in this case fall under this exception, and conclude

that in cases similar to this the error complained of is waived

for failure to make a contemporaneous objection. Because no

objection was made by Barrientes’s counsel, and such failure

constitutes waiver, our inquiry under the first prong supports

concluding that this claim was not adjudicated on the merits.

We now move on to the second prong, “whether the history of

the case suggests that the state court was aware of any ground

for not adjudicating the case on the merits.” The state habeas

record in this case is limited, but it appears that no brief was

filed by the State in response to Barrientes’s First State

Petition. Moreover, the State’s Answer, Motion for Summary

Judgment, and Supporting Brief filed in the district court in

response to Barrientes’s Second Federal Petition attacks this

claim on the merits rather than arguing that it was waived for

failure to make a contemporaneous objection. We surmise from

this history that the Texas Court of Criminal Appeals was not put

86

on notice by the State that this claim was waived. Our inquiry

under this factor weighs in favor of concluding that the claim

was adjudicated on the merits.

We now proceed to the final prong of our inquiry, “whether

the state courts’ opinions suggest reliance upon procedural

grounds rather than a determination on the merits.” The Texas

Court of Criminal Appeals denied Barrientes’s First State

Petition. Relying on Ex parte Torres, 943 S.W.2d 469, 472 (Tex.

Crim. App. 1997) (en banc), we have before explained that

“[u]nder Texas law a denial of relief by the Court of Criminal

Appeals serves as a denial of relief on the merits of the claim.”

Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); see also

Bledsue v. Johnson, 188 F.3d 250, 257 n.13 (5th Cir 1999);

Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Jackson

v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). Considering our

precedent, the denial by the Texas Court of Criminal Appeals does

not suggest reliance on procedural grounds.

After considering the results of each of our inquiries, we

conclude that this claim was adjudicated on the merits by the

Texas Court of Criminal Appeals. See Miller, 200 F.3d at 281

(relying in part on Torres to determine that an adjudication was

on the merits). But see Jackson, 194 F.3d at 651 (concluding

that an adjudication was not on the merits without considering

87

Torres).30 Having determined that the issue was adjudicated on

the merits in the state courts, we owe deference to their

disposition of the claim under § 2254.

We now proceed to determine whether Barrientes has made a

substantial showing of the denial of a constitutional right. The

comment made by the prosecutor must be considered in the context

of his entire argument.

For there to have been a denial of one’s fifth amendment

right to remain silent, the prosecutor’s manifest intent in

making the remark must have been to comment on the

defendant’s silence, or the character of the remark must

have been such that the jury would naturally and necessarily

construe it as a comment on the defendant’s silence. To

expound on the first inquiry, the prosecutor’s intent is not

manifestly impermissible if there is some other, equally

plausible explanation for the remark. For the second

inquiry, the question is not whether the jury might or

probably would view the challenged remark in this manner,

but whether it necessarily would have done so.

Id. (footnote omitted). Of course, if either the “manifest

intent” or “natural and necessary construction” prong is met, we

must further consider whether the error was harmless under the

standard of Brecht, 507 U.S. at 638. See Lucas v. Johnson, 132

F.3d 1069, 1079 (5th Cir. 1998). In Jackson, we addressed the

30

The determination in Jackson v. Johnson, 194 F.3d 641

(5th Cir. 1999), that adjudication was not on the merits arguably

conflicts with cases cited in the text that analyze the question

of adjudication on the merits with an eye towards the Torres

decision. Some of these cases predate Jackson, and, under our

jurisprudence, if two panel decisions conflict, the earlier one

controls. Texaco, Inc. v. Louisiana Land and Exploration Co.,

995 F.2d 43, 44 (5th Cir. 1993). One panel of this court may not

overrule another panel. See Broussard v. Southern Pac. Transp.

Co., 665 F.2d 1387, 1389 (5th Cir. 1982) (en banc).

88

following comment: “Look at him; he hasn’t shown any remorse.

After he and Clary killed this girl, they went into the beer

joint and drank beer and shot pool.” 194 F.3d at 652. We

concluded that this comment did not constitute an impermissible

comment on the defendant’s right to remain silent because it met

neither prong of the disjunctive inquiry. See id. at 652-53.

Likewise, in Lucas, we concluded that the following comment was

“neither a direct nor an indirect comment on [the defendant’s]

failure to testify:”

The handwriting comparison on the matches with Henry Lee

Lucas was inconclusive. We don’t know that those are his

matches; they might have been the girl’s matches. She

might have written in the matchbook; we don’t know that.

Only one person does know that, and that’s Henry Lee Lucas.

132 F.3d at 1079 & n.6. There, we looked at “the overall point

of the prosecutor’s statements.” In Madden v. Collins, 18 F.3d

304 (5th Cir. 1994), however, we examined the following statement

made by the prosecutor during the closing of the guilt/innocence

phase of Madden’s trial and concluded that it constituted an

impermissible comment on his failure to testify:

Then, also, the defense will argue that why in the world

would someone who killed, murdered two people and stole this

credit card sign their own name to the Texaco card? I don’t

know that; you don’t know why. There’s only one person

here that knows why, and there’s only one person here that

knows the answer to all of these questions.

Id. at 309. Ultimately, we concluded that the error was

harmless. See id.

89

It is against this backdrop that we examine the comment made

here. Barrientes argues that the prosecutor impermissibly

commented on his failure to testify at the penalty phase of his

trial by stating, “He knows. He knows where the witness is as he

sits there right now. He knows. He knows.” State Record Vol.

IX at 41. Our task is to determine whether “reasonable jurists

could debate whether . . . the petition should have been resolved

in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Slack, 120 S. Ct.

at 1604 (internal quotation marks omitted). The district court

denied the petition with respect to this claim, and because we

treat the disposition of this claim by the Texas Court of

Criminal Appeals as a disposition on the merits, the district

court was bound to deny the claim, as it did, unless the state

court disposition was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

While we agree that reasonable jurists could debate whether

a constitutional violation occurred, we conclude that reasonable

jurists could not debate whether the state court disposition was

contrary to or involved an unreasonable application of “governing

legal principles from [the Supreme Court’s] decisions.”

Williams, 120 S. Ct. at 1523. Consequently, reasonable jurists

90

could not “debate whether . . . the petition should have been

resolved in a different manner.”31 Slack, 120 S. Ct. at 1604.

C. Admission of Evidence of Unadjudicated Crimes

The next claim for which Barrientes seeks a COA is that the

failure of the state court to instruct the jury on the proper use

that could be made of evidence of unadjudicated crimes

constituted a violation of his rights under the Eighth Amendment.

He asserts that due process requires particularized instructions

if evidence of unadjudicated crimes is admitted in the penalty

phase of a capital murder trial. Barrientes argues that the jury

be instructed, perhaps at a minimum, on the burden of proof to

apply in reviewing evidence of unadjudicated crimes and the use

that can be made of the evidence. He cites only one case,

Williams v. Lynaugh, 814 F.2d 205 (5th Cir. 1987), for the

proposition that “‘properly applied standards of relevance and

31

Even were we to grant Barrientes a COA on this claim, it

would fail on the merits. It was not the prosecutor’s “manifest

intent” in making the remark to comment on Barrientes’s silence,

nor was the remark of such a character that “the jury would

naturally and necessarily construe it as a comment on

[Barrientes’s] silence.” Viewed in the context of the

prosecutor’s entire argument, the remark is most naturally taken

as an implication that Barrientes killed the missing witness.

Indeed, it is this inference that Barrientes used in support of

the argument that convinced the district court to vacate his

sentence of death. We recognize that the statement could be

taken as a comment on his failure to testify at the penalty

phase, and it is even possible that the prosecutor intended, in

part, to comment on his failure to testify. Under our

jurisprudence, however, that is not enough.

91

sufficiency of proof’ are necessary to ensure that constitutional

safeguards are observed when allegations of unadjudicated

offenses are presented by the State at sentencing.” Barrientes’s

COA Brief at 51 (quoting Williams, 814 F.2d at 208).

The State responds that this is one of the claims on which

the district court granted relief. We disagree. The claim to

which the State refers was that, prior to evidence of

unadjudicated crimes being admissible, the State must make a

preliminary showing to the trial court that a reasonable jury

could find, by a preponderance of the evidence, that the

defendant committed the crime. Nonetheless, Barrientes has

failed to make a substantial showing of the denial of a

constitutional right.

In United States v. Hall, 152 F.3d 381 (5th Cir. 1998),

abrogated on other grounds, United States v. Martinez-Salazar,

120 S. Ct. 774 (2000), we addressed a similar claim. We stated:

As we understand it, Hall’s argument appears to be that,

when the government offers evidence of an unadjudicated

offense in support of an aggravating factor, the jury must

be instructed that it cannot consider this evidence in

determining whether the government has carried its burden of

proving the aggravating factor beyond a reasonable doubt

unless it has first determined that the evidence establishes

by some quantum of evidence that the unadjudicated offense

occurred. Hall has offered no legal support for this

proposition, and the only precedent that we have found

militates against it.

Id. at 404 (footnote omitted). Barrientes fares no better with

his reliance upon Williams. The claim at issue in Williams was

the very different proposition that the very introduction of

92

evidence of unadjudicated offenses violates constitutional

guarantees. See 814 F.2d at 207-08. In any event, even were we

inclined to recognize that the constitu

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