Lucio v. Lumpkin

Case: 16-70027 Document: 00515739449 Page: 1 Date Filed: 02/09/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2021

No. 16-70027 Lyle W. Cayce

Clerk

Melissa Elizabeth Lucio,

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:13-CV-125

Before Owen, Chief Judge, and Higginbotham, Jones, Smith,

Stewart, Dennis, Elrod, Southwick, Haynes, Graves,

Higginson, Costa, Willett, Ho, Duncan, Engelhardt, and

Oldham, Circuit Judges.*

Andrew S. Oldham, Circuit Judge, announced the judgment of the

court and delivered an opinion joined by Owen, Chief Judge, and Jones,

Smith, Ho, Duncan, and Engelhardt, Circuit Judges:

*

This case was submitted before Judge Wilson was confirmed to our court. Judge

Wilson did not take part in the consideration or decision of this case.

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A Texas jury convicted Melissa Lucio of capital murder for beating to

death her two-year-old daughter. The state courts affirmed her conviction

and sentence on direct appeal and denied her petition for postconviction

relief. Now she seeks federal habeas relief. Lucio argues that the state trial

court denied her constitutional right to present a complete defense by

excluding two expert witnesses from testifying at the guilt phase of her trial.

The federal district court held that she cannot surmount the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Ten members of the

en banc court agree with that judgment. We affirm.

I.

We begin with the tragic facts of this case. Then we turn to Lucio’s

proceedings in state and federal court. This case turns on the ever-evolving

arguments that Lucio offered at trial, on direct appeal, in state habeas, and in

federal habeas. So we recount the procedural history in detail.

A.

On the night of February 17, 2007, paramedics responded to a call at

the home shared by Lucio and her husband Robert Alvarez. ROA.14936–37,

14981–82. The call concerned the couple’s young daughter, Mariah.

ROA.14936. When the EMTs arrived, they found Mariah on the living-room

floor. ROA.14922–23, 14936. No one was near her. ROA.14922. Her body

was covered with bruises in various stages of healing, her arm had been

broken for several weeks, she had a bite mark on her back, and some of her

hair had been pulled out. ROA.14813–16, 14937, 15051–54, 15066. She was

not breathing. ROA.14923. She had no pulse. ROA.14923.

The EMTs tried to resuscitate Mariah and rushed her to the hospital.

ROA.14924–28. In the emergency room, a doctor also tried to revive Mariah.

ROA.14813. Those efforts were unsuccessful. ROA.14813. Mariah was

pronounced dead. ROA.14813. She was two years old. ROA.14922.

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On the night of Mariah’s death, Lucio told the EMTs and the police

that Mariah fell down the stairs. ROA.8104–05, 14924. Later that night,

during a videotaped interview with investigators, Lucio explained that she

had caused the bruises on Mariah’s body by spanking Mariah “real hard”

and by pinching her vagina. ROA.8224–25. Lucio said “nobody else would

hit her.” ROA.8189. As for the bitemark on Mariah, Lucio explained that two

weeks before Mariah’s death, while Lucio combed Mariah’s hair, Lucio grew

frustrated with her other “kids jumping around.” ROA.8223. Although

Mariah had done nothing wrong, Lucio “placed [her] mouth over [Mariah’s]

back and bit her.” ROA.8222. During the interrogation, Lucio denied ever

punching Mariah, ROA.8227, causing the scratches on Mariah’s face,

ROA.8228, hitting Mariah on the head, or killing Mariah. ROA.8200. But

she also told investigators, “I’m responsible for it.” ROA.5395.

Following the interrogation, Lucio made a phone call. A police officer

who had been present with Lucio during the phone call testified that Lucio

had told her sister, “Don’t blame Robert. This was me. I did it. So don’t

blame Robert.” ROA.14990–91.

The State of Texas charged Lucio with capital murder. At the trial,

Lucio’s sister took the stand and testified about the phone call. She denied

that Lucio said, “This was me. I did it.” ROA.15203. Rather, Lucio’s sister

said that they only discussed spanking, and that Lucio said, “I would spank

the kids.” ROA.15203. Lucio’s sister also denied that Lucio spanked Mariah.

In the sister’s account, Lucio “never disciplined her children.” ROA.15200.

The jury also heard testimony concerning Mariah’s injuries. The

forensic pathologist who performed Mariah’s autopsy testified that her

injuries were not the result of a fall: “[T]his is a child that’s been beaten. This

is a battered child.” ROA.15070–71. In the pathologist’s expert opinion,

Mariah died from blunt-force trauma to the head. ROA.15096. At trial, the

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emergency-room doctor who tried to revive Mariah testified that this was the

“absolute worst” case of child abuse he’d seen in his thirty-year career.

ROA.14821. To rebut this evidence, Lucio’s medical expert opined that

Mariah was physically abused. But he also stated that her death could’ve been

caused by either a fall or being “[h]it by a strong force.” ROA.15194.

The defense sought to call two additional expert witnesses, Dr. John

Pinkerman and Ms. Norma Villanueva. The defense offered Pinkerman, a

psychologist, to testify about Lucio’s personal background and

“psychological functioning.” ROA.15301. The trial court excluded it on the

ground that such evidence is relevant only at the sentencing phase of a capital

trial. See Tex. Code Crim. Proc. art. 37.071(e)(1) (tasking the jury, only

after finding the defendant guilty, with considering “the defendant’s

character and background,” “the personal moral culpability of the

defendant,” and “mitigating” evidence). So to preserve the issue for

appellate review, defense counsel took Pinkerman’s testimony for an offer of

proof. 1 Here is the entirety of what Pinkerman offered to prove in the state

trial court:

On the basis of my review of information, consultation with

additional experts, and the evaluation that I have done with the

defendant Mrs. Lucio, I was going to testify about the

characteristics and makeup of her psychological functioning. I

was also going to address how her demeanor, both immediately

after the incident and during the interrogation, may be

understood by understanding and appreciating the

psychological elements and previous history and background

1

“The primary purpose of an offer of proof is to enable an appellate court to

determine whether the exclusion was erroneous and harmful.” Mays v. State, 285 S.W.3d

884, 890 (Tex. Crim. App. 2009) (quotation omitted). A secondary purpose is to allow the

trial court “to reconsider [a] ruling in light of the actual evidence.” Ibid. (quotation

omitted).

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that she has lived through. I was also going to address the

notion of how difficult it might have been for her to step into

some of the treatment, even though it was minimally offered.

And those are the highlights.

ROA.15301. Pinkerman did not proffer any opinions on the credibility of

Lucio’s statements during her interrogation. As Pinkerman acknowledged in

a post-trial affidavit prepared for Lucio’s state habeas proceeding, that issue

was “never raised at the pretrial [sic] or trial.” 2 ROA.8975.

The defense also offered the testimony of Ms. Villanueva, a licensed

clinical social worker, on “why [Lucio] . . . would have given police officer[s]

information in [her] statement that was not correct.” ROA.4691. The trial

court conducted a Daubert hearing. 3 See Tex. R. Evid. 702. During it,

2

Though defense counsel initially suggested Pinkerman might testify that “as a

battered woman, [Lucio] takes blame for everything that goes on in the family,”

ROA.15293, Pinkerman’s testimony in the offer of proof included no such opinion.

Moreover, Pinkerman’s expert report—authored two days before he made his offer of

proof—says nothing about battered woman syndrome, nor does it say that Lucio takes the

blame for anything. See infra Part III.B.3. The Texas Court of Criminal Appeals thus held

that no such proffer was preserved in the trial court. See Lucio v. State, 351 S.W.3d 878, 902

(Tex. Crim. App. 2011) (“Therefore, appellant’s claim on appeal as to what Pinkerman’s

testimony would have been does not comport with Pinkerman’s proffered testimony at

trial. Nor does it comport with what the trial attorney claimed that he was offering it for.”

(citation omitted)); cf. Mays, 285 S.W.3d at 891 (holding that an offer of proof must contain

“substance” that “rises to the level contemplated in our Rules of Evidence and this court’s

precedent” in order to preserve an issue for appellate review); ibid. (“[T]his sort of

summary, in the most general and cursory terms, without any of the meat of the actual

evidence, will not suffice to preserve error.”).

3

The term “Daubert hearing” is a shorthand for the inquiry that federal district

courts conduct before admitting expert testimony under the federal rules of evidence. See

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). While the Supreme Court’s

decision in Daubert applies only to federal proceedings, the Texas Court of Criminal

Appeals has described the inquiry under the Texas Rules of Evidence as “virtually

identical” to the standard set out in Daubert. Hartman v. State, 946 S.W.2d 60, 62 (Tex.

Crim. App. 1997) (en banc); accord Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App.

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Villanueva said her expertise derived from “clinical training and clinical

experience, . . . a combination of knowing life span development theories,

clinical theories[,] and human behavior social environment interaction

theories,” ROA.4695, as well as training in deciphering body language from

“clinical sources in [her] master’s degree, [and] continuing education

courses,” ROA.4697. On the basis of that experience, Villanueva offered to

testify as follows:

I was going to testify about three separate issues. The first issue

was about patterns of behavior with Mrs. Lucio which strongly

influenced her behavior during that videotaped statement

process with the investigators that night. . . . I was also going to

testify that the patterns of behavior as seen in the Child

Protective Services records, the patterns in her family, how

that influenced her decision making and how she felt with the

different investigators, male and female, and also how she

makes her life decisions. It influenced her behavior in that—

how she felt with the different investigators male and female

and how she made her decisions in answering the questions

during that process. And lastly, looking at her CPS history,

how—and also her social history, how she deals with different

people in levels of authority, and also how that influenced her

body language, and how body language is interpreted in

different ways if you do not have her history of behaviours [sic]

or patterns of behavior or her social history.

ROA.4706–07. Villanueva emphasized that she intended to offer an opinion

about what Lucio was thinking during the interrogation and whether Lucio

was telling the truth based on Lucio’s body language. ROA.4695–96.

2003) (en banc) (per curiam); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,

598–600 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

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The state trial court found that a social worker was unqualified to

testify about body language, unlike, say, “a psychologist . . . that has done

studies on that and has [an] academic background on that.” ROA.4691. The

court therefore concluded that Villanueva was not “an expert on whether or

not [Lucio’s interrogation] statement was true or not true.” ROA.4700. The

trial court found Villanueva was “imminently qualified on the issue of

mitigation.” ROA.4700. But it found she could not hold herself “as an expert

as to why that statement is or is not true.” ROA.4700.

Ultimately, the defense argued to the jury that, because Lucio

admitted that she abused her child, the jury should credit as true her

insistence to the police that she did not hit Mariah in the head. ROA.15340–

43. The prosecution asked the jury to infer that Lucio dealt the head blow

that killed Mariah, just as Lucio had abused the child in other ways.

ROA.15354–61.

The jury found Lucio guilty of capital murder. ROA.8093. And it

found insufficient mitigating evidence to warrant a life sentence. ROA.8098.

The trial court sentenced her to death. ROA.10284.

B.

Lucio appealed. See Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App.

2011). She raised fourteen “points of error” on direct appeal to the Texas

Court of Criminal Appeals. Id. at 880. Lucio’s ninth and tenth points of error

are at issue in our decision today.

Points of error nine and ten concerned the exclusion of Villanueva’s

and Pinkerman’s opinions, respectively. Id. at 897–902; ROA.10785–86.

Lucio argued that the exclusion of those opinions at the guilt phase of her trial

violated the Fourteenth Amendment’s Due Process Clause as interpreted in

Crane v. Kentucky, 476 U.S. 683 (1986). With respect to each expert, Lucio

argued:

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The defendant has a constitutional right to present evidence

before the jury as to the circumstances under which his

confession is taken. Crane v. Kentucky, 746 U.S. 683, 106 S. Ct.

2142, 90 L. Ed. 2d 636 (1986)[.] Crane deals with

circumstances like how many policemen were there, how big

the room was, how long the questioning lasted, etc. But the

principle has wider application. The reason the jury [was]

entitled to know about the circumstances under which the

statement was given [was] so that they could assess the

voluntariness of the statement and so that they could use

evidence of circumstances and their conclusion on

voluntariness to follow the judge’s instructions to disregard the

statement unless they were convinced beyond a reasonable

doubt that the statement was voluntary.

ROA.10841; ROA.10844–45 (same). Lucio insisted that both Villanueva and

Pinkerman would have offered “critical evidence” that was “so important”

that its erroneous exclusion meant Lucio deserved a new trial. ROA.10841;

ROA.10844 (same).

The Court of Criminal Appeals found Lucio’s arguments on both

points unavailing. See Lucio, 351 S.W.3d at 897–902 (overruling points of

error nine and ten). As to point nine (concerning Villanueva), the court noted

that Villanueva testified at the admissibility hearing that she would give

opinions about the truthfulness of Lucio’s videotaped statements based on

her knowledge of body language. Id. at 899–900. But on appeal, counsel

claimed she would have given an opinion on whether Lucio suffered from

battered woman syndrome. Ibid. Noting the inconsistency, the court held

that she “failed to preserve the claim that she raises on appeal.” Id. at 900.

But even if Lucio had preserved point of error nine, the Court of

Criminal Appeals held, it would not matter. The court first observed that

Villanueva’s “testimony that was actually proffered had little, if any,

relevance” to the question of voluntariness. Ibid. (emphasis added). That was

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so even under Texas law, which offered broader protections than the federal

constitution. See ibid. (citing Oursbourn v. State, 259 S.W.3d 159, 172–73

(Tex. Crim. App. 2008)); see also Oursbourn, 259 S.W.3d at 173 (explaining

that Texas’s statutory protections against “involuntary” confessions are

“broader in scope than those covered by the Due Process Clause or

Miranda”). Furthermore, under the Texas Rules of Evidence, Villanueva

could not “testify that [Lucio] may have been telling the truth when she

initially denied abusing Mariah.” Lucio, 351 S.W.3d at 901 n.25 (quoting

Yount v. State, 872 S.W.2d 706, 708–09 (Tex. Crim. App. 1993) (en banc),

for the proposition that an expert’s “direct testimony as to a witnesses’ [sic]

credibility is inadmissible under [Tex. R. Evid.] 702 because it does not

concern a subject upon which the testimony of an expert would assist the trier

of fact” (emphasis in original)). The court also held that any error was

harmless. See id. at 901 & n.25. 4

As to point of error ten (concerning Pinkerman), the Court of

Criminal Appeals found similar problems. Appellate counsel argued

Pinkerman would’ve testified “that since [Lucio] was an abused woman she

would agree with anything a policeman would say.” Id. at 901 (quotation

omitted). But the court observed that was not what Pinkerman had offered at

trial. Instead, at trial, Pinkerman made a “broad and general” offer of proof

4

The Court of Criminal Appeals noted that testimony about body language might

have countered some statements by Officer Escalon, who interrogated Lucio and

commented on her demeanor. But Lucio’s “subsequent admission during her recorded

statement that she abused Mariah, followed by her demonstrating such abuse with the doll”

rendered any error on that point harmless. Lucio, 351 S.W.3d at 901 n.25. Additionally, that

wasn’t Lucio’s only admission. As the Court of Criminal Appeals noted elsewhere, the jury

could have “reasonably infer[red] that [Lucio] was referring to Mariah’s fatal injuries when

she told her sister during their cell-phone conversation that she ‘did it.’” Id. at 895. And

that statement did not occur during a custodial interrogation, could not have been

motivated by a battered woman’s willingness to tell male police officers what they wanted

to hear, and had nothing to do with body language.

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that referred to Lucio’s “psychological functioning” and “demeanor.” Id. at

902 n.26 (quotation omitted). The court concluded that because of this

variance between the offer of proof at trial and Lucio’s argument on appeal,

Lucio did not preserve her appellate argument concerning Pinkerman. Id. at

902.

But even if Lucio had preserved the point, the Court of Criminal

Appeals held, it would not matter. That was because, in the court’s view,

“Pinkerman’s proffered guilt-phase testimony had little, if any, relevance”

to the voluntariness of Lucio’s interrogation statements. Ibid. (citing

Oursbourn, 259 S.W.3d at 172–73). The court also held the exclusion of

Pinkerman’s opinion was harmless in any event. Ibid.

The Court of Criminal Appeals overruled the rest of Lucio’s points of

error and affirmed the judgment of the trial court. Id. at 910. Lucio petitioned

the U.S. Supreme Court for a writ of certiorari; the Court denied it. Lucio v.

Texas, 566 U.S. 1036 (2012) (mem.).

C.

Next, Lucio applied for state postconviction relief. For present

purposes, the most important part of her state habeas application is issue

four.

She framed that part of her state habeas application in this way:

“ISSUE FOUR: The trial court deprived Melissa of the constitutional right

to present a complete defense when it excluded the testimony of defense

experts during the guilt/innocence phase of trial.” ROA.8029. In issue four,

Lucio again argued that the trial court erred by excluding the opinions of

Villanueva and Pinkerman during the guilt phase of her trial. ROA.8029–34.

Lucio took pains to distinguish this claim from her prior claims made during

her direct appeal. In a footnote at the start of her discussion of issue four,

Lucio said:

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Counsel distinguishes the claim raised in the instant

proceeding from the claim raised on direct appeal that the trial

court abused its discretion by preventing Melissa from

presenting evidence regarding the circumstances under which

her confession was taken. See Direct Appeal Brief (citing Crane

v. Kentucky, 476 U.S. 683, 106 S.[]Ct. 2142, 90 L.[]Ed.[ ]2d 636

(1986)). The instant issue goes to the core of the case—

whether Melissa was likely to have engaged in ongoing abuse of

Mariah.

ROA.8029 n.36.

After disclaiming reliance on Crane, Lucio noted that “a criminal

defendant’s constitutional right to present a complete defense is violated by

the exclusion of evidence pursuant to a state evidentiary rule that

categorically and arbitrarily prohibits the defendant from offering otherwise

relevant, reliable evidence that is vital to his defense.” ROA.8029. Lucio’s

application went on to note that Texas’s relevance rule itself is constitutional

because it “serves a legitimate interest and does not unconstitutionally

abridge the right to present a defense.” ROA.8032. But, Lucio argued, “the

evidence at issue here was not irrelevant to the issue of Melissa’s guilt or

innocence.” ROA.8032. Because the proffered testimony of Villanueva and

Pinkerman “was relevant to attack the credibility of the State’s case,” Lucio

argued, “the jury was unable to make an informed decision regarding the

weight to be given the State’s evidence of ongoing abuse” without their

opinions. ROA.8033–34. On that account, “the trial court violated Melissa’s

right to present a complete defense when it disallowed her expert’s [sic]

testimony during guilt/innocence as irrelevant.” ROA.8034.

In other grounds of her state habeas application, Lucio also argued her

trial counsel provided ineffective assistance of counsel (“IAC”). For

example, she argued that trial counsel provided IAC by failing “to file a pre-

trial motion to suppress [her] custodial statements.” ROA.7970 (“Issue

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Two”). She also argued that trial counsel “failed to make a timely request

for or adequately utilize the assistance of a mitigation specialist and

psychologist.” ROA.7988 (“Issue Three”). To support these IAC claims,

Lucio offered a post-trial affidavit from Pinkerman. ROA.8975. In that

affidavit, Pinkerman testified that Lucio’s “psychological characteristics

increase the likelihood that she would acquiesce while providing her

confession” during her custodial interrogation. ROA.8975. Pinkerman stated

that Lucio’s statements to police “could have been accounted for by her

dependent and acquiescent personality,” along with her history of

“emotional[ly] and physically abusive relationships with males.”

ROA.8975–76. Pinkerman faulted trial counsel for failing to ask the court if

he could offer opinions on these matters: “During meetings with defense

counsel I raised questions about these issues. To my knowledge these issues

were never raised at the pretrial [sic] or trial.” ROA.8975. Pinkerman’s IAC

affidavit did not purport to offer any opinion on why Lucio might accept

blame when talking on the phone to her sister about what happened to

Mariah.

The state habeas court rejected all of Lucio’s claims, including her

complete-defense claim in issue four. ROA.10083–96. The state habeas court

explained its analysis of issue four in two paragraphs:

39. [Lucio’s] complaint about this Court’s exclusion of her

mitigation experts [Villanueva and Pinkerman] from the guilt-

innocence portion of the trial is nearly identical to issues nine

and ten raised on direct appeal. Matters raised on direct appeal

should not be re-litigated on habeas unless the judgment is

subsequently rendered void or a subsequent change in the law

is made retroactive. While additional evidence may warrant

relief even when the issue was raised on direct appeal,

Applicant has not demonstrated that she is entitled to relief

herein because of any additional evidence herein.

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40. Moreover, this Court did not abuse its discretion in

excluding the testimony of Norma Villanueva and Dr. John

Pinkerman from the guilt-innocence portion of the trial. Ms.

Villanueva proffered nothing to indicate that she had any sort

of specialized experience, knowledge or training in the area of

interpreting body language and patterns of behavior during

police interviews. Dr. Pinkerman’s proffered testimony as to

[Lucio’s] psychological functioning, including how there was

little support in the “historical record” for the idea that

[Lucio] physically abused her children, that she suffered from

battered woman syndrome, and the meaning of her demeanor

after the incident and during questioning had no relevance to

the question of [Lucio’s] guilt or innocence.

ROA.10091.

Lucio filed objections to the state habeas court’s findings of fact and

conclusions of law. ROA.5866–93. In those objections, Lucio recognized that

her complete-defense claim in state habeas was “nearly identical” to the one

she made on direct appeal—but “‘[n]early identical’ is not ‘identical.’”

ROA.5884. She emphasized that her state habeas application—unlike her

direct appeal—did not challenge the circumstances of her custodial

interrogation or the exclusion of her experts under Crane. ROA.5884. And

Lucio’s objections did not say that Pinkerman’s post-trial affidavit—

submitted to buttress her IAC claims—had any relevance whatsoever to her

complete-defense claim. ROA.5883–84. The Court of Criminal Appeals

adopted the lower court’s decision and denied relief. ROA.7768–69.

D.

Lucio then petitioned for habeas relief in federal court. See 28 U.S.C.

§ 2254. She raised 25 claims for relief, including a complete-defense claim.

See Lucio v. Davis, No. 13-cv-125, 2016 U.S. Dist. LEXIS 195659, at *31 (S.D.

Tex. Sept. 28, 2016). The district court wrote a thorough 65-page opinion

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that analyzed all 25 claims. As to the complete-defense claim, the district

court held that Lucio “attempt[ed] to dress up [a] state evidence law claim

as a constitutional claim” and that her attempt was “without merit.” Id. at

*65–66. The district court denied the petition and denied a Certificate of

Appealability (“COA”). Id. at *92–94.

Lucio asked for a COA from our court. Lucio v. Davis, 783 F. App’x

313 (5th Cir. 2019). We granted one on “the question of whether the

exclusion of Lucio’s proffered experts on the credibility of her alleged

confession violated her constitutional right to present a complete defense.”

Id. at 319 (quotation omitted). Thereafter, a panel of our court determined

that Lucio had raised the issue of her right to a complete defense in state

court, but that no state court had adjudicated that claim. Id. at 314–15.

Applying de novo review, the panel concluded that the exclusion of

Pinkerman’s opinion violated Lucio’s right to present a complete defense.

Id. at 325. The panel found Crane highly relevant, notwithstanding Lucio’s

emphatic disclaimer of that authority in her state habeas application. And the

panel found Pinkerman’s affidavit highly relevant, notwithstanding

Pinkerman’s concession that none of the material in it had been properly

presented to the state trial court on account of alleged deficiencies by trial

counsel. The panel reversed the district court’s judgment and remanded for

the district court to grant habeas relief to Lucio. Ibid. Our en banc court

vacated the panel decision on rehearing. Lucio v. Davis, 947 F.3d 331 (5th Cir.

2020) (mem.).

II.

Our now-vacated panel decision concluded that Lucio fairly presented

a complete-defense claim to the state courts; the state courts simply

overlooked it; and Lucio therefore got the benefit of de novo review of her

complete-defense claim in federal court. That was error. To explain why, we

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begin with the exhaustion requirement. Then we hold that the state courts

adjudicated Lucio’s claims as she presented them.

A.

The exhaustion requirement is a cornerstone of federal habeas for

state prisoners. The Supreme Court first announced it in Ex parte Royall, 117

U.S. 241 (1886), shortly after Congress extended the writ of habeas corpus

ad subjiciendum to prisoners in state custody. Then, in 1948, Congress

codified the exhaustion requirement in 28 U.S.C. § 2254. Today the statute

provides that Lucio’s federal habeas application “shall not be granted”

unless she has exhausted available remedies in the state courts. Id.

§ 2254(b)(1).

“[T]he exhaustion doctrine is designed to give the state courts a full

and fair opportunity to resolve federal constitutional claims before those

claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999) (emphasis added). It’s premised on comity and federalism:

Because state courts are obligated to enforce federal law, they must be given

the first chance—after the state prisoner fully explains the federal claim—to

correct any error. See id. at 844. “This rule of comity reduces friction

between the state and federal court systems by avoiding the unseemliness of

a federal district court’s overturning a state court conviction without the

state courts having had an opportunity to correct the constitutional violation

in the first instance.” Id. at 845 (quotation omitted).

Obviously, it would undermine or eliminate the exhaustion

requirement if a state prisoner could change the claim along the way from

state court to federal court. As the Supreme Court has explained:

We emphasize that the federal claim must be fairly presented

to the state courts. If the exhaustion doctrine is to prevent

unnecessary conflict between courts equally bound to guard

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and protect rights secured by the Constitution, it is not

sufficient merely that the federal habeas applicant has been

through the state courts. The rule would serve no purpose if it

could be satisfied by raising one claim in the state courts and

another in the federal courts. Only if the state courts have had

the first opportunity to hear the claim sought to be vindicated

in a federal habeas proceeding does it make sense to speak of

the exhaustion of state remedies. Accordingly, we have

required a state prisoner to present the state courts with the

same claim he urges upon the federal courts.

Picard v. Connor, 404 U.S. 270, 275–76 (1971) (emphasis added) (quotation

omitted).

Consider, for example, Duncan v. Henry, 513 U.S. 364 (1995) (per

curiam). In that case, a California jury convicted Henry of sexually molesting

a five-year-old. At trial, Henry objected to the introduction of testimony by

the parent of another child he allegedly molested 20 years earlier. In the state

courts, Henry framed his objection in terms of California evidentiary law. But

in the federal courts, Henry argued the erroneous introduction of the

testimony violated the Due Process Clause. The Ninth Circuit held that

Henry exhausted his state remedies because he gave the state courts “the

operative facts” and “the substance of his federal claim.” Henry v. Estelle, 33

F.3d 1037, 1040–41 (9th Cir. 1993) (quotation omitted).

The Supreme Court summarily reversed. It held the California courts

“understandably” decided Henry’s claim in the terms he presented it.

Henry, 513 U.S. at 366. And in presenting his claim to the state courts, Henry

did not claim the introduction of the challenged testimony violated the Due

Process Clause—even if he presented the “facts” and “substance” of the

claim in other terms. Ibid. “The failure [was] especially pronounced in that

[Henry] did specifically raise a due process objection before the state court

based on a different claim . . . .” Ibid. Therefore, the exhaustion requirement

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provides that a state prisoner who does not fairly present a claim to a state

habeas court—specifying both the legal and factual basis for the claim—may

not raise that claim in a subsequent federal proceeding.

B.

For each claim that Lucio fully and fairly presented to the state courts,

there’s a rebuttable presumption that the state courts adjudicated it on the

merits. See Johnson v. Williams, 568 U.S. 289, 298 (2013). It’s possible that

Lucio did her part by presenting her claims fully and fairly, and that the state

courts nonetheless erred and overlooked them. But Williams holds such a

scenario is unlikely. See id. at 300–01 (“[I]t is by no means uncommon for a

state court to fail to address separately a federal claim that the court has not

simply overlooked”). Therefore, “a federal habeas court must presume that

the federal claim was adjudicated on the merits.” Id. at 301.

For each claim that the state court adjudicated on the merits,

AEDPA’s relitigation bar applies. See 28 U.S.C. § 2254(d) (generally barring

relitigation of claims that are “adjudicated on the merits” in state court); see

also ibid. (specifying that the relitigation bar applies on a “claim”-by-“claim”

basis). And Lucio can overcome the relitigation bar only by proving that

(1) the state court’s “decision” on her claim “was contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States,” id. § 2254(d)(1); or

(2) the state court’s adjudication of the claim “resulted in a

decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2).

For each claim governed by AEDPA’s relitigation bar, we must

identify the relevant state-court “decision.” Id. § 2254(d)(1)–(2). To that

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end, the Supreme Court says that we must “train [our] attention” on the

“last related state-court decision” that provides a “relevant rationale” to a

particular claim. Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018) (quotation

omitted). Only then can we consider whether the state court’s “decision”

was contrary to or an unreasonable application of clearly established Supreme

Court precedent. Id. at 1192; see also, e.g., Ylst v. Nunnemaker, 501 U.S. 797,

805 (1991) (“To decide the present case, therefore, we begin by asking which

is the last explained state-court judgment on the [federal] claim.” (emphasis

omitted)); Premo v. Moore, 562 U.S. 115, 123–33 (2011); Sears v. Upton, 561

U.S. 945, 951–56 (2010) (per curiam).

C.

In Lucio’s case, as in Henry, the state courts adjudicated the claims in

the same terms as the prisoner presented them. And, as in Henry, Lucio’s

claims shifted over time. That means, over the course of this litigation,

different state courts adjudicated different claims. We walk through each

relevant decision in turn.

At trial, Lucio urged that expert-opinion testimony from Villanueva

and Pinkerman should be admitted under the Texas Rules of Evidence. The

trial court excluded Villanueva because she was not qualified to offer an

expert opinion about Lucio’s psychology, body language, or credibility. See

Tex. R. Evid. 702 (providing the state-law standard for Daubert

challenges); Yount, 872 S.W.2d at 708–09. And the trial court excluded

Pinkerman’s opinion about Lucio’s “psychological functioning” as

irrelevant to her guilt and as relevant only to mitigation. See Tex. R. Evid.

402. At no point did trial counsel suggest that the exclusion of either witness

would violate Lucio’s rights under the federal Due Process Clause. See

Henry, 513 U.S. at 366 (“If a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due process of law

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guaranteed by the Fourteenth Amendment, he must say so, not only in

federal court, but in state court.”). And at no point did either expert offer to

testify about the circumstances of Lucio’s custodial interrogation and

whether she felt psychological pressure to admit to abusing Mariah. As

Pinkerman himself later said, “To my knowledge these issues were never

raised at the pretrial [sic] or trial.” ROA.8975.

On direct appeal, Lucio changed her claim and argued that, under the

Due Process Clause and Crane v. Kentucky, Lucio had the right to present

Villanueva and Pinkerman to challenge the “voluntariness” of her custodial

statements. Even though Lucio defaulted this claim by failing to present it to

the trial court, the Court of Criminal Appeals adjudicated it anyway. And the

court held Lucio’s voluntariness challenges failed because the testimony that

Lucio’s experts had actually proffered at trial had “little, if any, relevance”

to the issue of voluntariness. Lucio, 351 S.W.3d at 901 (Villanueva), 902

(Pinkerman). And again, that was so even though Texas law requires the

admission of more evidence than the minimum required by the Federal

Constitution. See id. at 900 (quoting Oursbourn, 259 S.W.3d at 172–73, for

various examples of “fact scenarios that can raise a state-law claim of

involuntariness (even though they do not raise a federal constitutional claim)”

(emphasis added)). Thus, the Court of Criminal Appeals adjudicated and

denied Lucio’s Crane claim on direct appeal. See Williams, 568 U.S. at 301

(“[I]f the state-law rule subsumes the federal standard—that is, if it is at least

as protective as the federal standard—then the federal claim may be regarded

as having been adjudicated on the merits.”); see also Early v. Packer, 537 U.S.

3, 8 (2002) (per curiam).

On state habeas, Lucio changed the claim again. This time, she

expressly disclaimed any reliance on Crane and insisted that she did not want

to challenge the exclusion of “evidence regarding the circumstances under

which her confession was taken.” ROA.8029 n.36. Rather, she argued that

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the exclusion of Villanueva and Pinkerman deprived her of the constitutional

right to present a complete defense by proving that she was “[un]likely to

have engaged in ongoing abuse of Mariah.” ROA.8029 & n.36. The state

habeas court held that Lucio’s claim was procedurally barred insofar as she

attempted to re-raise her Crane claim regarding the circumstances of her

custodial interrogation. ROA.10091. And beyond that, the claim was

meritless because Villanueva’s proffered body-language testimony failed the

Texas Daubert standard, and Pinkerman’s generalized proffer about Lucio’s

psychological functioning was relevant to mitigation but “had no relevance

to the question of [Lucio’s] guilt or innocence.” ROA.10091.

Based on the state-court proceedings, two things are clear: (1) Lucio

exhausted state remedies regarding two relevant claims in two different state

proceedings, and (2) the state courts adjudicated both claims on the merits. 5

On direct appeal, the Court of Criminal Appeals heard and rejected Lucio’s

claim that Crane v. Kentucky gives her the federal due process right to present

testimony regarding the circumstances of her custodial interrogation. On

state habeas, the state court heard and rejected Lucio’s distinct claim that the

exclusion of Villanueva and Pinkerman from the guilt phase of her trial

prevented her from proving that she was “[un]likely to have engaged in

ongoing abuse of Mariah.” This is the way Lucio chose to present her claims

and hence the way the state courts were required to adjudicate them. The

state courts adjudicated both claims on the merits. So AEDPA’s relitigation

bar applies. See 28 U.S.C. § 2254(d).

5

True, the state courts also identified procedural bars to both claims based on

Lucio’s ever-changing arguments. But it long has been true that a state court’s adjudication

of a claim on the merits means that the claim is exhausted. See, e.g., Castille v. Peoples, 489

U.S. 346, 350 (1989); Brown v. Allen, 344 U.S. 443, 447 (1953).

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III.

We next evaluate the relevant state-court decisions under AEDPA’s

relitigation bar, 28 U.S.C. § 2254(d). In enacting that provision, Congress

imposed strict limitations on federal courts considering habeas applications

from state prisoners. See, e.g., Harrington v. Richter, 562 U.S. 86, 102 (2011);

Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (en banc), cert. denied, 140

S. Ct. 2676 (2020) (mem.); see also Shinn v. Kayer, 141 S. Ct. 517, 526 (2020)

(per curiam) (“Under AEDPA, state courts play the leading role in assessing

challenges to state sentences based on federal law.”). “To overcome

AEDPA’s relitigation bar, a state prisoner must shoehorn [her] claim into

one of its narrow exceptions.” Langley, 926 F.3d at 155; see 28 U.S.C.

§ 2254(d)(1)–(2). The prisoner can do so only if the state court’s decision

was “so obviously wrong as to be beyond any possibility for fairminded

disagreement.” Kayer, 141 S. Ct. at 526 (quotation omitted).

Lucio says she satisfied AEDPA’s relitigation exceptions in three

ways. She first argues (A) the state court’s decision was “contrary to” or

“involved an unreasonable application of ” Crane. 28 U.S.C. § 2254(d)(1).

She next argues (B) the state court’s decision was “contrary to” or “involved

an unreasonable application of ” Chambers v. Mississippi, 410 U.S. 284 (1973).

28 U.S.C. § 2254(d)(1). She finally argues (C) the state court’s decision was

“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)(2). We

consider and reject each argument in turn.

A.

We start with Lucio’s claim under Crane v. Kentucky. We first explain

the law clearly established in Crane. Then we train our attention on the last

state-court decision to adjudicate that claim—the state court’s decision in

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Lucio’s direct appeal—and evaluate that decision under the relitigation bar.

See Wilson, 138 S. Ct. at 1192.

1.

The Supreme Court has held that the “Constitution guarantees

criminal defendants ‘a meaningful opportunity to present a complete

defense.’” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam)

(quoting Crane, 476 U.S. at 690). But it has also recognized that “state and

federal rulemakers have broad latitude under the Constitution to establish

rules excluding evidence from criminal trials.” Ibid. (quoting Holmes v. South

Carolina, 547 U.S. 319, 324 (2006)). “Only rarely” has the Supreme Court

“held that the right to present a complete defense was violated by the

exclusion of defense evidence under a state rule of evidence.” Ibid.

In Crane, the Supreme Court considered the constitutionality of a

novel evidentiary practice that was first recognized by the Kentucky Supreme

Court in Crane itself. Prior to his murder trial, Crane moved to suppress his

confession pursuant to Kentucky Rule of Criminal Procedure 9.78. Crane v.

Kentucky, 690 S.W.2d 753, 753 (Ky. 1985). That rule, adopted on January 1,

1978, stated:

Rule 9.78. Confessions and searches—Suppression of

evidence.—If at any time before trial a defendant moves to

suppress, or during trial makes timely objection to the

admission of evidence consisting of (a) a confession or other

incriminating statements alleged to have been made by him to

police authorities or (b) the fruits of a search, the trial court

shall conduct an evidentiary hearing outside the presence of the

jury and at the conclusion thereof shall enter into the record

findings resolving the essential issues of fact raised by the

motion or objection and necessary to support the ruling. If

supported by substantial evidence the factual findings of the

trial court shall be conclusive.

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Ibid. The Kentucky trial court conducted a “lengthy hearing and denied the

motion to suppress, finding the confession to be voluntary.” Ibid. Then, at

trial, the court refused to allow the introduction of any evidence regarding

the “circumstances surrounding the taking of the confession.” Id. at 754.

The Kentucky Supreme Court affirmed, holding:

[O]nce a hearing is conducted pursuant to [Rule 9.78] and a

finding is made by the judge based upon substantial evidence

that the confession was voluntary, that finding is conclusive

and the trial court may exclude evidence relating to

voluntariness from consideration by the jury when that

evidence has little or no relationship to any other issue.

Id. at 755.

The Supreme Court reversed because the Kentucky Supreme Court’s

decision relied on the “assumption that evidence bearing on the

voluntariness of a confession and evidence bearing on its credibility fall in

conceptually distinct and mutually exclusive categories.” Crane, 476 U.S. at

687. That assumption was “directly at odds with language in several

[Supreme Court] opinions,” and it “conflict[ed] with the decisions of every

other state court to have confronted the issue,” ibid., as well as 18 U.S.C.

§ 3501(a) and Federal Rule of Evidence 104(e), id. at 689. The Court held

“on the facts of this case that the blanket exclusion of the proffered

testimony,” in “the absence of any valid state justification,” was

unconstitutional. Id. at 690. In making its decision, the Court took pains to

note that it was not “question[ing] the power of States to exclude evidence

through the application of evidentiary rules that themselves serve the

interests of fairness and reliability—even if the defendant would prefer to see

that evidence admitted.” Id. at 689.

The Supreme Court subsequently reminded us that Crane does “not

set[ ] forth an absolute entitlement to introduce crucial, relevant evidence”

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at a criminal trial. Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (plurality

opinion). It explained:

Our holding that the exclusion of certain evidence in that case

violated the defendant’s constitutional rights rested not on a

theory that all competent, reliable evidence must be admitted,

but rather on the ground that the Supreme Court of

Kentucky’s sole rationale for the exclusion (that the evidence

did not relate to the credibility of the confession) was wrong.

Crane does nothing to undermine the principle that the

introduction of relevant evidence can be limited by the State

for a valid reason.

Ibid. (quotations omitted).

2.

Lucio argues that the state court’s exclusion of Villanueva and

Pinkerman was “contrary to” the law clearly established in Crane. See 28

U.S.C. § 2254(d)(1). “A state-court decision is contrary to clearly

established federal law only if it arrives at a conclusion opposite to that

reached by the Supreme Court on a question of law or if it resolves a case

differently than the Supreme Court has on a set of materially

indistinguishable facts.” Langley, 926 F.3d at 155 (quotations omitted). For

example:

If a state court were to reject a prisoner’s claim of ineffective

assistance of counsel on the grounds that the prisoner had not

established by a preponderance of the evidence that the result

of his criminal proceeding would have been different, that

decision would be diametrically different, opposite in character

or nature, and mutually opposed to [the Supreme Court’s]

clearly established precedent because [it] held in Strickland

that the prisoner need only demonstrate a reasonable

probability that the result of the proceeding would have been

different.

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Terry Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (quotation omitted).

Lucio cannot meet that high bar here. In answering our en banc

questions, 6 Lucio conceded that, at best, her claim is “strongly supported”

by Crane and that no case is on “all fours” with her claim. Lucio Opening En

Banc Q&A 25–26. That is insufficient to show that the state court’s decision

is “diametrically different” from Crane. See Terry Williams, 529 U.S. at 405.

Therefore, “here, as in most AEDPA cases,” the “contrary to” exception

does not apply. Langley, 926 F.3d at 156.

Next, Lucio argues that the decision by the Court of Criminal Appeals

“involved an unreasonable application of ” Crane. See 28 U.S.C.

§ 2254(d)(1). To meet that exception to the relitigation bar, Lucio must do

much more than establish that the state court erred. See, e.g., Renico v. Lett,

559 U.S. 766, 773 (2010) (“[A] federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” (quotation omitted)). “Rather, the relitigation

bar forecloses relief unless the prisoner can show the state court was so wrong

that the error was well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Langley, 926 F.3d at 156

(quotation omitted); see also Kayer, 141 S. Ct. at 520 (summarily reversing the

Ninth Circuit for “ordering issuance of a writ of habeas corpus despite ample

room for reasonable disagreement about the prisoner’s . . . claim”).

6

Because of COVID-19, our court did not conduct our usual en banc argument.

Instead, we used a multi-round form of written questions and answers. In the first round,

we presented written questions—some for both parties, some solely for Lucio or the State.

After the parties provided their answers to the court’s questions, they both submitted

rebuttals to each other’s answers. Both parties provided thorough and helpful answers.

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We hold the Court of Criminal Appeals did not unreasonably apply

Crane in Lucio’s direct appeal. As an initial matter, we note that the Court of

Criminal Appeals held that the two witnesses’ opinions were inadmissible

under state law, which affords broader protections than the Crane-Due

Process standard in federal law. See Lucio, 351 S.W.3d at 900, 902 (citing

Tex. Code Crim. Proc. arts. 38.21, 38.22, and Oursbourn, 259 S.W.3d

at 172–73). Because Texas law is “broader in scope” than the U.S.

Constitution on this issue, a determination that a claim fails on state-law

grounds necessarily adjudicated any federal claim as well. See Williams, 568

U.S. at 298–99 (holding a state-law adjudication necessarily adjudicates the

federal question where the former “fully incorporat[es]” the latter). Lucio

has never argued that Texas’s statutory and decisional standards are in fact

narrower than the Crane standard. She therefore has forfeited any argument

to that effect.

Moreover, we have observed that cases involving Crane “typically

focus” on evidentiary rules that lead to “categorical prohibitions of certain

evidence and not discretionary decisions to exclude evidence under general

and otherwise uncontroversial rules.” Caldwell v. Davis, 757 F. App’x 336,

339 (5th Cir. 2018) (per curiam). As Lucio conceded in her en banc answers,

she is not challenging the constitutionality of Texas’s evidentiary rules

regarding the relevance and the admission of expert-opinion testimony.

Lucio Opening En Banc Q&A 24–25. Nor does Lucio allege that the Texas

courts categorically prohibited her from undermining her own inculpatory

statements. For example, the trial court permitted Lucio’s sister to testify

about Lucio’s background, her tendency to take the blame for things she did

not do, and the phone call in which Lucio allegedly said: “This was me. I did

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it.” 7 Her only complaint is that the trial court made discretionary errors in

excluding the particular expert opinions proffered by Villanueva and

Pinkerman. Therefore, Lucio fails to show that Texas courts categorically

prohibited evidence undermining her inculpatory statements.

Lucio cannot argue that the Court of Criminal Appeals unreasonably

applied Crane by failing to extend it to discretionary evidentiary decisions.

“Section 2254(d)(1) provides a remedy for instances in which a state court

unreasonably applies [the Supreme] Court’s precedent; it does not require

state courts to extend that precedent or license federal courts to treat the

failure to do so as error.” White v. Woodall, 572 U.S. 415, 426 (2014)

(emphasis in original). We, like the Ninth Circuit, are aware of no clearly

established law regarding “a court’s exercise of discretion to exclude expert

testimony” as it relates to a “criminal defendant’s constitutional right to

present relevant evidence.” Moses v. Payne, 555 F.3d 742, 758–59 (9th Cir.

2009); see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“[T]he

Supreme Court has not decided any case either squarely address[ing] the

discretionary exclusion of evidence and the right to present a complete

7

Our now-vacated panel opinion made much of the fact that a police officer

overheard this statement while listening to only Lucio’s side of the conversation with her

sister, and that the officer “did not create a log of Lucio’s alleged statements until nearly

sixteen months after he interacted with Lucio—the month before trial.” Lucio, 783 F.

App’x at 324 n.6. But far from supporting a Crane claim, these propositions disprove it.

Crane guarantees Lucio the procedural opportunity to present her defense. The trial court

gave Lucio the procedural opportunity—and her trial counsel vigorously exercised it—to

cross-examine the officer about what he overheard Lucio say and the length of time

between that conversation and the officer’s report. ROA.14992–93. And as noted above,

the trial court afforded Lucio the opportunity—which she again vigorously exercised—to

present her sister’s side of the phone call. All of this proves that the State did not

categorically bar Lucio, as in Crane, from presenting any evidence to undermine her

inculpatory statement.

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defense or establish[ing] a controlling legal standard for evaluating such

exclusions.” (quotation omitted) (alterations in original)).

And it’s not just the Ninth Circuit. Many of our sister circuits,

reviewing state prisoners’ applications under § 2254(d)(1), have upheld state

courts’ wide latitude to make discretionary evidentiary decisions. See, e.g.,

Grant v. Royal, 886 F.3d 874, 959–60 (10th Cir. 2018) (rejecting state

prisoner’s habeas application under the relitigation bar because Crane did not

implicate the “discretionary application of evidentiary rules”); Troy v. Sec’y,

Fla. Dep’t of Corr., 763 F.3d 1305, 1307, 1315 (11th Cir. 2014) (rejecting state

prisoner’s habeas application under the relitigation bar because Crane does

not deprive state courts of the “gatekeeping role” to make discretionary

evidentiary decisions); Gagne v. Booker, 680 F.3d 493, 516 (6th Cir. 2012) (en

banc) (rejecting state prisoner’s habeas application under the relitigation bar

because, consistent with Crane, “a trial court may even exclude competent

reliable evidence . . . central to the defendant’s claim of innocence, so long as

there exists a valid state justification” (quotation omitted)); Rucker v. Norris,

563 F.3d 766, 770 (8th Cir. 2009) (rejecting state prisoner’s habeas

application under the relitigation bar because “Crane proscribed only the

‘wholesale exclusion’ of evidence pertaining to the credibility of a

confession”).

Take for example the Sixth Circuit’s decision in Loza v. Mitchell, 766

F.3d 466 (6th Cir. 2014). It assessed an Ohio court’s exclusion of a clinical

psychologist that the defendant sought to use “to help explain his

confession.” Id. at 481. The Sixth Circuit held the prisoner could not

surmount the relitigation bar because the state court did not apply a

“mechanistic, per se” rule but instead made an “individual determination”

about the appropriateness of the testimony based on the specific facts of the

case. Id. at 485 (quotations omitted). Importantly, the defendant was given

the opportunity to present “other evidence bearing on the credibility of his

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confession.” Ibid. And the jury had the opportunity to watch the video of the

defendant’s confession to see for itself the “tone and manner of the

interrogation, the number of officers present, the physical characteristics of

the room, and the length of the interrogation.” Ibid. (quotation omitted).

Although more evidence like the clinical psychologist’s opinion would have

been helpful, the Sixth Circuit found it reasonable to “conclude[ ] that Crane

did not require this evidence to be admitted.” Id. at 486 (emphasis in

original).

We refuse to create a circuit split. As previously discussed, the Court

of Criminal Appeals did not affirm any “blanket exclusion” of evidence

regarding Lucio’s confession. Instead, it considered her two proffered

experts on an individualized basis and found their opinions to be inadmissible

as a matter of state law. The jury hearing Lucio’s case had ample opportunity

to assess the credibility of her various statements—it could watch the video

of the interrogation, it could listen to her sister’s testimony, and it could

compare that testimony with the police officer’s. Thus, even if we assume

arguendo that a discretionary evidentiary ruling could violate Crane, Lucio

has not proven beyond any fair-minded disagreement that the state court’s

decision on her direct-appeal record rises to that level. Accordingly, the

Court of Criminal Appeals’ decision was not an unreasonable application of

the clearly established federal law in Crane.

Nor does the state court’s decision become unreasonable, as Lucio

argues, because of Pinkerman’s post-trial, collateral-review affidavit. The

Supreme Court has strictly instructed that our review is “limited to the

record that was before the state court that adjudicated the claim on the merits.”

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (emphasis added). To that end,

“the record under review is limited to the record in existence at that same

time.” Id. at 182. Since the Pinkerman affidavit did not exist at the time the

Court of Criminal Appeals evaluated Lucio’s Crane claim on direct appeal,

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the record before that court didn’t include the affidavit. Therefore, we may

not consider the affidavit in reviewing that court’s direct appeal decision.

B.

We next consider the complete-defense claim that Lucio exhausted in

her state habeas application. We first identify the claim. Then we describe

the clearly established law as articulated by the Supreme Court. Then we

evaluate the relevant state-court decision under AEDPA’s relitigation bar.

1.

Lucio adamantly insisted that her state habeas claim did not involve

Crane. ROA.8029 n.36. She presumably did so to avoid the state procedural

bar on re-raising claims in state habeas after raising them on direct appeal.

See, e.g., Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006)

(“[H]abeas relief is not available to one who has already litigated his claim at

trial, in post-trial motions, or on direct appeal.”). So we take Lucio at her

word that the state habeas claim does not implicate Crane.

We also assume that Lucio does not intend to challenge the state

courts’ application of state-law evidentiary rules. It’s well-settled that such

state-law challenges form “no part of a federal court’s habeas review of a

state conviction. We have stated many times that federal habeas corpus relief

does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991)

(quotation omitted). And that obviates much of Lucio’s state habeas claim.

The three principal cases cited in that application all involve direct appeals

of mine-run evidentiary challenges. See ROA.8032–33 (citing United States v.

Hall, 93 F.3d 1337 (7th Cir. 1996), United States v. Cohen, 510 F.3d 1114 (9th

Cir. 2007), and an unpublished, intermediate state-court decision in Kaps v.

State, No. 05-97-00328-CR, 1998 WL 209060 (Tex. App.—Dallas Apr. 30,

1998, no pet.)). These precedents illustrate that state-law evidentiary claims

are cognizable on direct appeal. But they are not cognizable in federal habeas.

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See McGuire, 502 U.S. at 67. So we do not construe Lucio’s claim to implicate

the state courts’ application of state evidence law. See Lucio, 2016 U.S. Dist.

LEXIS 195659, at *65 (“Lucio’s attempt to dress up this state evidence law

claim as a constitutional claim is unconvincing.”).

What remains unclear is what Lucio’s state habeas claim does

implicate. Our now-vacated panel decision in this case said that “Lucio’s

argument to the state habeas court flagged her ‘complete defense’ argument

as a ‘constitutional’ issue and cited a Texas case that relied exclusively on

the Federal Constitution.” Lucio, 783 F. App’x at 319 (citing Wiley v. State,

74 S.W.3d 399, 405–07 (Tex. Crim. App. 2002), and Wiley v. State, No. 03-

99-00047-CR, 2000 WL 1124975, at *1 (Tex. App.—Austin Aug. 10, 2000),

aff’d, 74 S.W.3d 399 (Tex. 2002)). We disagree that “flagging” a state-court

case that in turn cites the U.S. Constitution is sufficient to exhaust a federal

claim under 28 U.S.C. § 2254(b)(1). See, e.g., Williams, 568 U.S. at 299

(holding “a fleeting reference to a provision of the Federal Constitution or

federal precedent” is insufficient to exhaust a federal claim because “a state

court may not regard [it] as sufficient to raise a separate federal claim”). And

Wiley itself did not purport to apply Crane, Chambers, or any U.S. Supreme

Court precedent whatsoever.

The most charitable interpretation of Lucio’s state habeas claim is

that the exclusion of expert-opinion testimony from Villanueva and

Pinkerman infringed her constitutional right to present a complete defense

because it precluded Lucio from presenting evidence “regarding the weight

to be given the State’s evidence of ongoing abuse,” ROA.8034, depriving her

of the opportunity to prove that she was “[un]likely to have engaged in

ongoing abuse of Mariah,” ROA.8029 n.36. This claim does not attack the

circumstances of Lucio’s custodial interrogation as in Crane. Rather, Lucio’s

objection is that the exclusion of the experts’ opinions made her trial unfair

because it precluded her from proving that she did not beat her child to death

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or commit ongoing abuse of Mariah, even though she admitted to committing

abuse. And the state habeas court’s contrary conclusion, she says, is contrary

to or an unreasonable application of Chambers v. Mississippi.

2.

Again, we explain the Supreme Court’s decision in Chambers before

considering whether the state court acted contrary to or unreasonably applied

that precedent.

The State prosecuted Leon Chambers for murdering a police officer

“in the small town of Woodville in southern Mississippi” in 1969. Chambers,

410 U.S. at 285. Another man, named McDonald, confessed in a sworn

written statement to murdering the police officer. Id. at 287. Still, Mississippi

brought charges against Chambers, not McDonald. At trial, Chambers called

McDonald to the stand and entered McDonald’s written confession into

evidence. Id. at 291. On cross-examination, the State elicited testimony from

McDonald repudiating the confession. Ibid. After the State’s cross-

examination, Chambers moved to examine McDonald as a hostile witness.

Ibid. But the state court denied his request based on an idiosyncratic state-

law rule called the “voucher rule”—which prevented Chambers from

impeaching his own witness on the theory that “a party who calls a witness

‘vouches for his credibility.’” Id. at 295 (quoting Clark v. Lansford, 191 So.2d

123, 125 (Miss. 1966)).

The Supreme Court noted that the voucher rule has been

“condemned as archaic, irrational, and potentially destructive of the truth‐

gathering process.” Id. at 296 n.8. And it emphasized that Mississippi did not

even attempt “to defend the [voucher] rule or explain its underlying

rationale.” Id. at 297. The Supreme Court therefore held that the “voucher

rule” violated Chambers’s rights to confront and cross‐examine witnesses

like McDonald.

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The state habeas court’s adjudication of Lucio’s complete-defense

claim is not “contrary to” Chambers. 28 U.S.C. § 2254(d)(1). During our en

banc Q&A, Lucio recognized that the trial court excluded Villanueva and

Pinkerman pursuant to ordinary rules of evidence concerning the

admissibility of expert opinions—not pursuant to some idiosyncratic,

arbitrary, archaic, and indefensible rule that prohibited her from impeaching

her own witness. This significant distinction is far more than sufficient to bar

a “contrary to” claim.

Nor is the state habeas court’s decision an “unreasonable

application” of Chambers. Ibid. The Supreme Court has instructed us that

Chambers—like its other complete-defense cases—involved an idiosyncratic

state rule of evidence that was “arbitrary,” “did not rationally serve any

discernible purpose,” and “could not be rationally defended.” Jackson, 569

U.S. at 509 (discussing Holmes, 547 U.S. at 331; Rock v. Arkansas, 483 U.S.

44, 61 (1987); Chambers, 410 U.S. at 302–303; and Washington v. Texas, 388

U.S. 14, 22 (1967)). The Supreme Court has never applied its complete-

defense cases to discretionary evidentiary decisions under rules that are

themselves constitutional, like the rules of evidence involving the

admissibility of expert opinions here. Thus, to hold that the state habeas

court unreasonably applied these cases, we’d have to (1) extend them or

(2) frame them “at such a high level of generality” that we’d “transform

even the most imaginative extension of existing case law into ‘clearly

established Federal law, as determined by the Supreme Court.’” Id. at 512

(quoting 28 U.S.C. § 2254(d)(1)). The relitigation bar precludes that.

3.

Our panel decision in this case reached the contrary result by taking

the facts from Lucio’s state habeas application, mixing them with the law

from her direct appeal, and using the resulting combination to condemn the

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evidentiary decision made at trial. Specifically, the panel combined the facts

in the Pinkerman affidavit (from state habeas) with the Crane claim (from

direct appeal) to hold the exclusion of Pinkerman’s proffer (at trial) was

arbitrary and “complete[ly] irrational[ ].” Lucio, 783 F. App’x at 323. The

panel held that Crane gave Lucio the constitutional right to “take[] away” or

“undermine[ ]” her custodial-interrogation statements; that without those

statements, “the State’s case [would have been] much more tenuous”; and

that “Pinkerman’s opinion was that Lucio was susceptible to taking blame

for something that was not her fault and that this behavior was manifested in

the interrogation video,” thereby “cast[ing] doubt on the State’s key

evidence.” Ibid.

AEDPA prohibits whipsawing the state courts in this way. See 28

U.S.C. § 2254(d); cf. Wainwright v. Sykes, 433 U.S. 72, 89 (1977) (rejecting

habeas-by-“sandbagging”). This is the entirety of what Pinkerman proffered

at trial:

On the basis of my review of information, consultation with

additional experts, and the evaluation that I have done with the

defendant Mrs. Lucio, I was going to testify about the

characteristics and makeup of her psychological functioning. I

was also going to address how her demeanor, both immediately

after the incident and during the interrogation, may be

understood by understanding and appreciating the

psychological elements and previous history and background

that she has lived through. I was also going to address the

notion of how difficult it might have been for her to step into

some of the treatment, even though it was minimally offered.

And those are the highlights.

ROA.15301. As the state courts concluded, this proffer provides zero

information about what facts or opinions Pinkerman was prepared to offer. It

certainly did not say—as our panel decision concluded—“that Lucio was

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susceptible to taking blame for something that was not her fault and that this

behavior was manifested in the interrogation video.” Lucio, 783 F. App’x at

323. To the contrary, Pinkerman provided no basis upon which the state

courts could have concluded that his testimony would have assisted the jury

in understanding why Lucio made the statements that she did, why her

demeanor was what it was, or whether she murdered her child. If AEDPA’s

anti-sandbagging rules mean anything, they mean that Lucio and Pinkerman

cannot hold back the substance of the proffered testimony with the hope of

using it as a trump card later.

The whipsawing embraced by our panel decision is particularly

striking because we do not need to guess what Pinkerman would’ve said if

he’d been allowed to testify in the guilt phase of the trial. That’s because two

days before he was first called to testify and make his proffer, he authored an

expert report that detailed his testimony. ROA.15301 (Pinkerman’s guilt-

phase proffer, dated July 7, 2008); ROA.5387 (Pinkerman’s expert report,

dated July 5, 2008). The expert report contained extensive psychological

evaluations of Lucio. It also described Pinkerman’s findings from watching

the interrogation video—including that Lucio had a “constrained”

demeanor, a “flat” affect, and that “she tunes out to the male investigator.”

ROA.5394. The report recounted Lucio’s custodial statement: “Several

hours after Mariah’s death, [Lucio] said: ‘I’m responsible for it.’” ROA.5395

(emphasis added). And it recounted Lucio’s various other inculpatory

admissions of abuse against her daughter. E.g., ROA.5395 (recounting

Lucio’s admissions that she got “frustrated” with Mariah, “spanked” her,

and “When I saw the bruises, I hated myself for what I did.”). At no point

did Pinkerman’s report come close even to hinting that any of these

statements were false. At no point did Pinkerman’s report come close even

to hinting “that Lucio was susceptible to taking blame for something that was

not her fault and that this behavior was manifested in the interrogation

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video.” Lucio, 783 F. App’x at 323. And at no point did Pinkerman’s report

say anything at all about battered woman syndrome.

We also don’t have to guess about what Pinkerman would have said at

trial because he was allowed to testify during the punishment phase. Defense

counsel asked Pinkerman multiple questions about Lucio’s interrogation

video to elicit testimony about the circumstances of the offense and Lucio’s

moral culpability. E.g., ROA.5131–34; see Tex. Code Crim. Proc. art.

37.071, § 2(e)(1) (requiring the punishment-phase jury to consider, inter alia,

“the circumstances of the offense” and “the personal moral culpability of

the defendant”). And again, Pinkerman did not come close even to

suggesting “that Lucio was susceptible to taking blame for something that

was not her fault and that this behavior was manifested in the interrogation

video.” Lucio, 783 F. App’x at 323. In fact, Pinkerman repeatedly

equivocated regarding battered woman syndrome:

Q. Well, do you feel that this defendant has battered

woman’s syndrome?

A. I can’t answer, yes or no.

Q. Why not?

A. Because my answer would be in the middle.

ROA.5169. When pressed to explain the equivocation, Pinkerman stated that

“[b]attered woman syndrome isn’t a DSM-4 diagnosis.” ROA.5170.

Pinkerman radically shifted his story in the state habeas proceeding.

That’s the first and only time he offered any opinion about the circumstances

of Lucio’s custodial interrogation or battered woman syndrome. And he did

it in a state habeas application that said Lucio was not challenging the

circumstances of her custodial interrogation or the voluntariness of anything

she said during that interrogation. The state courts are entitled to adjudicate

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the claim that Lucio brought at the time she brought it and in the way she

brought it. See Henry, 513 U.S. at 366. And we cannot agree with the panel

that the state trial court’s decision to exclude the proffered testimony was

“complete[ly] irrational[],” Lucio, 783 F. App’x at 323; cf. Jackson, 569 U.S.

at 509, based on an affidavit that wasn’t even written until many years after

the trial and was first presented in a state habeas application that disclaimed

the panel’s legal theory, see Pinholster, 563 U.S. at 181 (“[T]he scope of the

record for a § 2254(d)(1) inquiry . . . . is limited to the record that was before

the state court that adjudicated the claim on the merits.”).

Villanueva fares no better. As Lucio conceded in her opening en banc

brief, all of Villanueva’s testimony was premised on her comparison of

Lucio’s body language in pictures that predated the murder to her body

language after it. And the state courts had ample reasons under the Texas

Daubert standard to exclude such guilt-phase testimony based on

Villanueva’s concession that she had no specialized training, no certification,

and no generally accepted science to support interpreting Lucio’s body

language. ROA.4694–95. In fact, when Villanueva testified at the punishment

phase, she conceded that she “was retained to do mitigation. . . . I was not

instructed at all to make judgments about the innocence or guilt, sir.”

ROA.5057 (emphasis added). Moreover, even if Villanueva were a qualified

body-language expert and were retained to render opinions about Lucio’s

guilt, the Texas Rules of Evidence would bar her from offering an opinion on

Lucio’s credibility. See Yount, 872 S.W.2d at 708–09. It was therefore

reasonable for the state courts to exclude Villanueva from the guilt phase of

the trial. Even our now-vacated panel decision did not find error in that

result. See Lucio, 783 F. App’x at 321. 8

8

Our panel decision noted “the exclusion of Villanueva’s testimony raises

concerns about the fairness of the trial” because Officer Escalon testified about Lucio’s

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C.

Finally, Lucio argues that the state habeas court’s decision was 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)(2). Because

Lucio is challenging a state conviction, “a determination of a factual issue

made by a State court shall be presumed to be correct.” Id. § 2254(e)(1).

Furthermore, the “applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” Ibid. Thus,

while the “general standard” for evaluating a state court’s findings of fact is

reasonableness, § 2254(e)(1) requires a state prisoner to show that the state

court’s specific factual determination in her case is unreasonable by clear and

convincing evidence. Valdez v. Cockrell, 274 F.3d 941, 951 n.17 (5th Cir.

2001); see also Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011). We cannot

reject a factual finding merely because we would have made a different one.

See Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013).

body language during the interrogation. Lucio, 783 F. App’x at 321 n.1. That’s apples and

oranges. Officer Escalon did not purport to offer an expert opinion; he was describing his

personal experiences and impressions while interrogating Lucio. See Osbourn v. State, 92

S.W.3d 531, 538–39 (Tex. Crim. App. 2002) (explaining that a police officer’s “lay opinion

about something she personally perceived,” even when informed by an officer’s training

and experience, is distinct from expert testimony). And to the extent Escalon purported to

offer inadmissible expert opinion, Lucio’s trial lawyers had every right to object. They did

not. See ROA.4410-11; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003)

(explaining that “to preserve error, an objection must be timely, specific, pursued to an

adverse ruling, and, with two [inapplicable] exceptions, contemporaneous—that is, made

each time inadmissible evidence is offered”). They also had every right to cross-examine

Escalon on the point. Again, they did not. And even if Lucio’s counsel allowed inadmissible

evidence to come in by failing to object, that would do nothing to qualify Villanueva as an

expert on body language under Texas’s Daubert standard. See ROA.4700.

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Lucio argues that the state habeas court made an unreasonable factual

determination concerning the admissibility of Pinkerman’s opinion. The

state habeas court held that Pinkerman’s proffered opinion “had no

relevance to the question of [Lucio’s] guilt or innocence.” ROA.10091. Lucio

argues that this was error—either under Texas Rule of Evidence 402 or

“Texas relevance law” generally. But it is well established that a “federal

court lacks authority to rule that a state court incorrectly interpreted its own

law.” Charles v. Thaler, 629 F.3d 494, 500–01 (5th Cir. 2011); see McGuire,

502 U.S. at 67. It is “not our function as a federal appellate court in a habeas

proceeding to review a state’s interpretation of its own law.” Schaetzle v.

Cockrell, 343 F.3d 440, 449 (5th Cir. 2003) (quoting Weeks v. Scott, 55 F.3d

1059, 1063 (5th Cir. 1995)). Because Lucio fails to identify any factual

problems with the state habeas court’s decision concerning Pinkerman’s

opinion, she has failed to make a claim that’s cognizable in federal habeas,

much less one that can push aside the relitigation bar in § 2254(d)(2). To the

extent Lucio’s argument can be construed as raising a legal claim under

federal law, we have already rejected it for the reasons discussed in Parts III.A

and III.B.

Our panel decision in this case relied heavily on the affidavit that

Pinkerman submitted to the state habeas court. But the whole point of that

affidavit was to aver facts that Pinkerman discussed with Lucio’s trial counsel

and that trial counsel failed to proffer at trial. Recall that at trial, Pinkerman

did not offer to prove that Lucio made false statements. See supra at 5 & n.2.

Instead, he made a vague offer to prove “how her demeanor . . . may be

understood by understanding and appreciating the psychological elements

and previous history and background that she has lived through.”

ROA.15301. It’s precisely because trial counsel did not solicit a better proffer

that Pinkerman accused him of ineffective assistance. Thus, according to the

Pinkerman affidavit, the trial court did not violate her constitutional rights—

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her trial counsel did. Lucio cannot now fault the state courts for failing to

adjudicate a complete-defense claim based on facts that the defense team

failed to present.

As for Villanueva, Lucio argues that the state habeas court

unreasonably determined that she “proffered nothing to indicate that she had

any sort of specialized experience, knowledge[,] or training in the areas of

interpreting body language and patterns of behavior during police

interviews.” ROA.10091. In her expert-admissibility hearing, Villanueva

testified on direct examination that she had a master’s degree in social work

and was licensed to diagnose and treat mental disorders. ROA.4692. On

cross-examination, she was asked to identify “one treatise or one book” on

the “specialty” of “detect[ing] human thought process through physical

conduct.” ROA.4694–95. Villanueva conceded, “I’m not a specialist in that

area.” ROA.4695. Villanueva’s testimony provided a reasonable basis for the

state habeas court to find that she lacked special expertise in “interpreting

body language and patterns of behavior” in the specific context of “police

interviews.” Cf. Yount, 872 S.W.2d at 710 (“Psychologists and psychiatrists

are not, and do not claim to be, experts at discerning truth.” (quoting State

v. Moran, 728 P.2d 248, 255 (Ariz. 1986))). Furthermore, to the extent

Lucio’s argument challenges either (1) the state habeas court’s application of

Texas Rule of Evidence 702 or (2) the relevancy of this evidence under the

Federal Constitution, it suffers from the same defects as Lucio’s arguments

concerning Pinkerman’s opinion.

Finally, Lucio challenges the state habeas court’s determination that

her “complaint about [the] exclusion of her mitigation experts from the guilt-

innocence portion of the trial is nearly identical to issues nine and ten raised

on direct appeal.” ROA.10091. “The maxim is well established in this circuit

that a party who fails to make an argument before either the district court or

the original panel waives it for purposes of en banc consideration.” Miller v.

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Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 349 (5th Cir. 2005) (en banc).

Because Lucio failed to raise this argument before the original panel, we hold

that it is forfeited. 9

IV.

The various dissenting opinions contradict AEDPA, Supreme Court

precedent, and the record in this case. Indeed, the dissents even contradict

one another. If the dissenters cannot agree amongst themselves, they cannot

expect our court to reach the level of certitude necessary to grant habeas

relief. Cf. Richter, 562 U.S. at 103 (“As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” (emphasis

added)). Four of the dissenters’ arguments merit additional responses.

A.

First, the dissenters spill much ink relitigating the facts. For example,

Judge Haynes emphasizes that “Lucio had trouble taking care of her many

children.” Post, at 79 (Haynes, J., dissenting). Judges Higginson and

Higginbotham suggest Texas’s foster-care system is the real culprit. Id. at 110

n.1 (Higginson, J., dissenting); id. at 63–69 (Higginbotham, J., dissenting). Or

perhaps two-year-old Mariah killed herself. Id. at 80, 101 (Haynes, J.,

dissenting). Judges Haynes and Higginson suggest that Officer Escalon

9

Lucio also argues that the “state court’s process for determining the facts” was

“itself unreasonable.” As Lucio acknowledges, that argument is foreclosed by circuit

precedent. See Valdez, 274 F.3d at 951 (holding “that a full and fair hearing is not a

precondition to according § 2254(e)(1)’s presumption of correctness to state habeas court

findings of fact nor to applying § 2254(d)’s standards of review”). We decline Lucio’s

invitation to overturn Valdez.

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badgered Lucio during the interrogation. Id. at 80–82 (Haynes, J.,

dissenting); id. at 113 n.4 (Higginson, J., dissenting). And all the dissenters

have much to say about how they’d weigh Pinkerman’s testimony—

notwithstanding the stark differences between what Pinkerman says today

and what he proffered at trial, and notwithstanding the equally stark

differences between the roles of federal judges and state jurors. See id. at 83,

88–90 (Haynes, J., dissenting); id. at 75–76 (Elrod, J., dissenting); id. at 111

(Higginson, J., dissenting); id. at 68 (Higginbotham, J., dissenting). Judge

Elrod captures the dissenters’ gestalt by saying Lucio confessed to beating to

death her child and then framing the question presented as: “But did she?”

Id. at 70.

AEDPA and Supreme Court precedent squarely foreclose this entire

enterprise. Take for example Cavazos v. Smith, 565 U.S. 1 (2011) (per

curiam). A California jury convicted Shirley Ree Smith of shaking to death

her 7-week-old grandson. Id. at 2–5. At trial, the State called three experts

who testified about the horrific injuries Smith inflicted on the baby. Id. at 3–

5. The defense called two experts who testified that the baby “died from old

trauma,” or perhaps the real culprit was sudden infant death syndrome. Id.

at 5. The Ninth Circuit reweighed this evidence, found the State’s evidence

insufficient, and granted relief under AEDPA. Id. at 6–7.

The Supreme Court summarily reversed. As to the evidence the jury

heard, it was the jury’s province—not the federal court’s—to weigh it. See

id. at 2 (“Because rational people can sometimes disagree, . . . judges will

sometimes encounter convictions that they believe to be mistaken, but that

they must nonetheless uphold. The Court of Appeals in this case substituted

its judgment for that of a California jury . . . .”). And as to evidence the jury

did not hear—because Smith developed it after trial—that too failed to justify

relief under AEDPA:

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The dissent’s review of the evidence presented to the jury over

seven days is precisely the sort of reweighing of facts that is

precluded by Jackson v. Virginia, 443 U.S. 307, 324 (1979), and

precisely the sort of second-guessing of a state court decision

applying Jackson that is precluded by AEDPA, 28 U.S.C.

§ 2254(d). The dissent’s views on how ‘adamantly’ experts

would testify today as opposed to at the time of trial are of

course pure speculation, as would be any views on how a jury

would react to less adamant testimony.

Id. at 8 n.* (quoting dissenting opinion by Justice Ginsburg). Exactly the same

could be said about the dissents’ reweighing of the evidence submitted to the

jury (the conditions of Lucio’s home, Officer Escalon’s interrogation tactics,

&c.) and their speculation about evidence not submitted to the jury (from

Pinkerman’s post-trial affidavit).

And even if AEDPA allowed the dissenters to redo the jury’s job, the

dissenters could not cherry-pick the facts. For example, one dissenter tells us

that Lucio had “issues with . . . income and housing” and that she “could

not pay her rent and was about to lose her apartment.” Post, at 65

(Higginbotham, J., dissenting). The dissent omits, however, that Lucio’s

own expert attributed those financial troubles to Lucio’s cocaine addiction.

Villanueva testified that Lucio received approximately $5,000 every month

in food stamps. ROA.15637–38. Yet her refrigerator was completely empty.

ROA.15637–38. That’s because—again, according to Lucio’s own expert—

Lucio and Mr. Alvarez sold the food stamps and spent the money on cocaine.

ROA.15636. Then they made the children survive on one free meal a day at

Loaves and Fishes. ROA.15638.

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It’s unclear what the dissenters hope to achieve from their

counterfactual narratives. But whatever the purpose, the effort is foreclosed

by AEDPA, Supreme Court precedent, and the record. 10

B.

Next, the dissenters repeatedly accuse us of “sua sponte” raising

procedural arguments that the State waived. See post, at 78, 90–95 (Haynes,

J., dissenting); id. at 71 n.1 (Elrod, J., dissenting); id. at 111 & n.2 (Higginson,

J., dissenting). For example, some dissenters criticize us for holding that

Lucio “procedural[ly] default[ed]” her claims. Id. at 90–93, 94 n.9 (Haynes,

J., dissenting). Other dissenters accuse us of holding Lucio failed to

“exhaust[]” her claims. Id. at 71 n.1 (Elrod, J., dissenting). These accusations

are quite odd. We mention “default” only once above, and only as a

description of the Court of Criminal Appeals’ direct-appeal decision. See

supra at 19. And we hold that Lucio did exhaust her claims. See supra at 20 &

10

Amongst the most troubling of the dissents’ factual inaccuracies is their

collective assertion that Lucio offered Pinkerman and Villanueva to “‘answer the one

question every rational juror needs answered: If [Lucio] is innocent, why did [s]he

previously admit h[er] guilt?’” Post, at 104 (Haynes, J., dissenting) (quoting Crane, 476

U.S. at 689); see also id. at 73, 75–77 (Elrod, J., dissenting); id. at 110–11 (Higginson, J.,

dissenting); id. at 64 n.1 (Higginbotham, J., dissenting). The dissenters cannot cite a single

page of the record that suggests Lucio ever tried to justify admitting Pinkerman and

Villanueva for that purpose. To the contrary, Lucio’s trial lawyers made the strategic

decision that it was better to deny that Lucio ever admitted her guilt rather than try to

explain it away. As one of Lucio’s lawyers told the jury at closing: “She confessed to what?

She confessed to bruising that child from head to foot. She confessed to neglect. She didn’t

confess to murder.” ROA.4789. Lucio’s lawyers could’ve changed that strategy or even

made inconsistent alternative arguments when proffering Pinkerman and Villanueva

outside the presence of the jury. But the defense decided to maintain its no-confession

theory to the very end. AEDPA prevents us from second-guessing that trial strategy. See

Pinholster, 563 U.S. at 190 (holding that federal courts apply “doubly deferential” review

to the strategic choices of counsel (quotation omitted)); accord Knowles v. Mirzayance, 556

U.S. 111, 123 (2009).

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n.5; post, at 95–96 (Haynes, J., dissenting) (agreeing with our exhaustion

holding). Our sua sponte procedural holdings are nil.

All we’ve held is that Lucio has changed her complete-defense claim

over time. That is an undisputed proposition. Lucio herself recognized it in

her state habeas application. ROA.8029 n.36. Lucio conceded it in the district

court. ROA.159. Both sides recognized it before our court. E.g., Director’s

Opening En Banc Q&A 1–8; Lucio’s Opening En Banc Q&A 1–11. And

because Lucio changed her argument over time, we must analyze each claim

as it existed at the time Lucio presented it to the state courts. See Henry, 513

U.S. at 366. That is hornbook law.

The dissenters appear to believe that a state prisoner can raise

different claims at different times with different facts in the state court, then

smush them all together into a single claim in federal court. This belief has

no basis in law. Consider for example the Supreme Court’s canonical

decision in Rose v. Lundy, 455 U.S. 509 (1982). In that case, the state prisoner

exhausted a prosecutorial-misconduct claim in state court. He based that

claim on five comments the prosecutor made at trial. Id. at 511 & n.3. When

Lundy got to federal court, however, he attempted to broaden his claim to

include additional prosecutorial statements suggesting “that the State’s

evidence was uncontradicted.” Id. at 511. The federal district court allowed

Lundy to lump together his separate claims into a single prosecutorial-

misconduct claim and then considered them in the context of the trial “taken

as a whole.” Ibid. The Supreme Court reversed and held that state prisoners

must “seek full relief first from the state courts, thus giving those courts the

first opportunity to review all claims of constitutional error.” Id. at 518–19

(emphases added). The Court noted that this rule “reduces piecemeal

litigation” by forcing prisoners to present the state courts with an entire claim

and allowing the state courts to adjudicate it. Id. at 520 (emphasis in original);

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see also Boerckel, 526 U.S. at 845 (holding prisoners must give state courts “a

full and fair opportunity to resolve federal constitutional claims”).

This eliminates the dissenters’ various procedural objections. As in

Lundy, Lucio certainly exhausted something. As in Lundy, the State concedes

that here. As in Lundy, we can only consider the claim as Lucio exhausted it.

And just as Lundy precludes a prisoner from smushing together separate

prosecutorial-misconduct claims to create a new one that the state never

considered, it also precludes Lucio from smushing together separate

complete-defense claims to create a new one that amalgamates her factual

and legal contentions at trial, on direct appeal, and in state habeas. See also

Pinholster, 563 U.S. at 181–82 (holding the relitigation bar’s “backward-

looking language requires an examination of the state-court decision at the

time it was made”). 11

It’s no answer to say that the Texas courts were adjudicating the same

complete-defense claim all along. Post, at 83, 88–90 (Haynes, J., dissenting);

id. at 111 (Higginson, J., dissenting). That’s for two reasons.

First, Lucio’s claims are quite different—as she herself concedes. At

trial, Lucio did not give the trial court the slightest hint that admission of the

11

Two of the dissenters suggest that Pinholster requires us to mix together the

Pinkerman affidavit (from state habeas) and the Crane claim (from Lucio’s direct appeal).

See post, at 92–93 (Haynes, J., dissenting); id. at 76 n.5 (Elrod, J., dissenting). Not so.

Pinholster held “that review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” 563 U.S. at 181. At the time the state

courts adjudicated Lucio’s Crane claim on direct appeal, the Pinkerman affidavit did not

even exist. Nothing in Pinholster required the direct-appeal court to predict what Lucio and

Pinkerman would file in the future. And when Lucio and Pinkerman eventually did file the

affidavit during her state habeas proceedings, nothing in Pinholster required the state habeas

court to go back in time and re-adjudicate the Crane claim that Lucio already raised,

especially given Lucio’s express disclaimer of a Crane claim in her state habeas application.

See Pinholster, 563 U.S. at 181–82; ROA 8029 n.36.

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Pinkerman-Villanueva testimony was compelled by the Due Process Clause,

Crane, or anything in federal law. The trial court repeatedly asked Lucio’s

trial lawyer to explain the basis for admitting the testimony. Counsel never

explained why the testimony mattered; never said anything about Lucio’s

constitutional right to present a complete defense; never said anything about

the jury’s role in evaluating the credibility of Lucio’s custodial statements;

and never said anything that could come close to putting the trial court on

notice that the question involved anything other than state evidentiary law. 12

It was not until her direct appeal that Lucio first invoked federal law, and even

then she had to reimagine her trial proffer to do it. See Lucio, 351 S.W.3d at

900 (holding “[Lucio’s] claim on appeal as to what Villanueva’s testimony

would have been does not comport with Villanueva’s proffered testimony at

trial”); id. at 902 (holding “[Lucio’s] claim on appeal as to what Pinkerman’s

testimony would have been does not comport with Pinkerman’s proffered

testimony at trial”). And her claims at trial and on direct appeal differed again

from her claim in state habeas, which added Pinkerman’s affidavit but

disclaimed any reliance on Crane. Cases like Henry and Lundy squarely

foreclose Lucio from arguing one thing in state court and another broader

thing in federal court. That’s not a “sua sponte” procedural holding; that’s

application of AEDPA to the different claims that the state courts

adjudicated on the merits at the various times they adjudicated them.

12

The dissenters make much of the trial court’s apparent absence from the

courtroom during trial counsel’s bill of particulars. See post, at 83, 89 (Haynes, J.,

dissenting). But they cite nothing to suggest the trial court’s apparent absence violates any

provision of state or federal law or any precedent from any state or federal court. And if the

trial court was absent, that makes defense counsel’s bill of particulars all the more

indefensible. By hypothesis, Lucio’s trial lawyer and Pinkerman could have put anything

they wanted in the record—unpoliced by an apparently absent trial judge. And still they

failed to say anything at all about Crane, the Due Process Clause, the complete-defense

right, or anything in federal law.

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Second, if the dissenters were right that Lucio did offer the exact same

argument at all phases of her state-court proceedings, that would trigger a

variety of procedural obstacles. As noted above, Texas has well-established

procedural rules that prohibit prisoners from raising the same claim twice.

See supra at 30 (citing Ex parte Brown, 205 S.W.3d at 546). And if Lucio

violated that procedural rule by doing what the dissenters think she did, she

would run headlong into the procedural-default doctrine. See, e.g., Coleman

v. Thompson, 501 U.S. 722, 750–51 (1991). We have refrained from applying

that procedural bar only to be accused of applying it anyway.

C.

Next, the dissenters offer competing theories of Crane and AEDPA.

Some dissenters think AEDPA does not apply to Lucio’s Crane claim, so our

review is de novo. See post, at 78 n.3, 95–96 & n.10 (Haynes, J., dissenting).

Others think AEDPA’s relitigation bar applies but that Lucio can overcome

it because the state court’s decision runs “contrary to” Crane. See id. at 71

(Elrod, J., dissenting); 28 U.S.C. § 2254(d)(1). Still others think Lucio can

overcome the bar because the state court “unreasonably applied” Crane. See

post, at 78 (Haynes, J., dissenting); 28 U.S.C. § 2254(d)(1). The dissenters

agree, however, that Lucio raised a “Crane claim” in her state habeas

application—notwithstanding the fact that she expressly disclaimed any

reliance on Crane in that very application. See ROA.8029 n.36. The

dissenters do not offer a single citation to justify that novel habeas theory.

1.

Let’s start with the dissenters’ argument for de novo review. Those

who defend the panel’s application of that standard contend that “the state

habeas court failed to adjudicate Lucio’s complete defense claim on the

merits because it erroneously determined that Lucio raised a state evidentiary

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challenge and rejected that claim based on state evidentiary standards.” Post,

at 96 n.10 (Haynes, J., dissenting).

Not so. Lucio argued in her state habeas application that the trial court

violated her right to a complete defense because “the evidence at issue here

was not irrelevant to the issue of [her] guilt or innocence.” ROA.8032. Lucio

herself characterized the claim as one of state evidentiary law. The state

habeas court addressed that argument head-on, finding no error in the

exclusion of Pinkerman’s proffered testimony because it “had no relevance

to the question of [Lucio’s] guilt or innocence.” ROA.10091. We struggle to

see how resolving an issue in the exact same terms presented can constitute

a failure to adjudicate it.

The principles of comity and federalism that undergird the entirety of

federal habeas for state prisoners dating back to Reconstruction require

closer attention to the state-court litigation. So does the party-presentation

principle that features so prominently in the principal dissent. See post, at 94

(Haynes, J., dissenting) (describing “the Supreme Court’s admonition in

Sineneng-Smith” as warning courts not to “step in on [their] own initiative”

and “redo” the litigation).

2.

Next, consider the dissenters’ “contrary to” argument. Judge Elrod

reads Crane to clearly establish the “bedrock rule” that juries “must be

allowed to hear competent, reliable evidence bearing on the credibility of a

confession when such evidence is central to the defendant’s claim of

innocence.” Post, at 74 (quotation omitted). She then says the state court’s

decision was “contrary” to this “bedrock rule.” See id. at 76. She concludes

that this case and Crane should come out the same way because they involve

materially indistinguishable facts. See id. at 74–75 & n.3.

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That analysis falters at every step. Crane does not establish—much

less clearly establish—a universal, freestanding right to introduce competent

and reliable evidence challenging a confession’s credibility. The Supreme

Court has repeatedly so held. See Jackson, 569 U.S. at 509–10; Egelhoff, 518

U.S. at 53; accord supra at 23–24. Rather, Crane holds that the wholesale

“exclusion of this kind of exculpatory evidence” is constitutionally

problematic “[i]n the absence of any valid state justification.” Crane, 476

U.S. at 690. That’s why the entire dispute in Crane hinged on the adequacy

of Kentucky’s justification for its blanket exclusion. See supra at 23–24. What

was the justification? “[E]stablished Kentucky procedure” made “a trial

court’s pretrial voluntariness determination . . . conclusive.” Crane, 476 U.S.

at 686. Crane held these two things—a blanket evidentiary exclusion justified

only by a “conclusive” pretrial determination of voluntariness—violate the

Due Process Clause.

None of the state-court decisions in this case were “contrary to”

Crane’s holding. Texas did not impose a categorical prohibition on evidence;

it did not establish a procedure for excluding evidence through “conclusive”

pretrial rulings; and it justified the trial court’s decision as a mine-run,

discretionary evidentiary decision in the face of a vacuous proffer by defense

counsel. That’s far afield from Crane.

It’s no answer to say the state court “failed to even identify the correct

legal principle.” Post, at 72 (Elrod, J., dissenting) (emphasis in original). The

Supreme Court has repeatedly explained that a state court need not cite any

legal principle at all. See Richter, 562 U.S. at 98 (“By its terms § 2254(d) bars

relitigation of any claim ‘adjudicated on the merits’ in state court, subject

only to the exceptions in §§ 2254(d)(1) and (2). There is no text in the statute

requiring a statement of reasons.”); ibid. (“As every Court of Appeals to

consider the issue has recognized, determining whether a state court’s

decision resulted from an unreasonable legal or factual conclusion does not

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require that there be an opinion from the state court explaining the state

court’s reasoning.”). And where the state court offers an explanation, it

“need not cite or even be aware of our cases under § 2254(d).” Ibid. (citing

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).

It’s also no answer to declare that this case and Crane involve

“materially indistinguishable facts.” Post, at 74 (Elrod, J., dissenting). It is

true that “here, as in Crane, the trial court pointed to a rule of evidence to

find the testimony inadmissible.” Id. at 75. But at that level of generality,

every state-law evidentiary ruling in a criminal case implicates Crane. Contra

McGuire, 502 U.S. at 67. That’s why the Supreme Court has warned us not

to “fram[e] [its] precedents at such a high level of generality.” Jackson, 569

U.S. at 512; accord post, at 61 (Southwick, J., concurring). In fact, the Court

summarily reversed our sister circuit for doing exactly what the dissenters

propose here: “characterizing the cases as recognizing a broad right to

present evidence bearing on . . . credibility.” Jackson, 569 U.S. at 512

(quotation omitted). 13

13

Jackson notwithstanding, Judge Elrod objects to our “materially

indistinguishable” analysis. She criticizes our “suggest[ion]” that “if the facts are not

exactly the same, the ‘contrary to’ exception automatically fails.” Post, at 75 n.3. Of course,

that’s not what we say. We agree with Judge Elrod that AEDPA’s “contrary to” prong can

be satisfied through “imposition of a contradictory standard” or “a ‘diametrically

different’ conclusion on ‘materially indistinguishable’ facts.” Ibid. (quoting Terry

Williams, 529 U.S. at 405); see supra at 24–25. But we disagree that Terry Williams or any

other Supreme Court precedent supports a “contrary to” argument in this case. As the

Terry Williams Court itself explained, “[i]t is difficult . . . to describe . . . a run-of-the-mill

state-court decision as diametrically different from, opposite in character or nature from,

or mutually opposed to . . . our clearly established precedent.” 529 U.S. at 406 (quotations

omitted). And a run-of-the-mill state-court evidentiary decision is exactly what we have

here. See supra at 26–29, 49. “Although the state-court decision may be contrary to the

[dissenters’] conception of how [Crane] ought to be applied in th[is] particular case, the

decision is not ‘mutually opposed’ to [Crane] itself.” Terry Williams, 529 U.S. at 406.

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3.

The dissenters’ final Crane theory is that the state courts

unreasonably applied that decision.

Judge Haynes contends that this case is like Crane because in both

cases a state court “excluded testimony . . . [a]s irrelevant.” Post, at 103. It’s

true that Crane held that a state court cannot use a pretrial voluntariness

ruling to justify the blanket exclusion of exculpatory evidence as

“irrelevant.” 476 U.S. at 687. But this case involves neither a pretrial

voluntariness ruling nor a blanket exclusion of anything. Instead, the trial

court admitted the type of evidence that would have been excluded in Crane

when proffered by Lucio’s sister. See supra at 26–27. That proves the State

in this case did not have a blanket evidentiary prohibition, unlike in Crane.

And it proves that the trial court excluded Pinkerman and Villanueva by

applying a discretionary, non-categorical evidentiary rule, unlike in Crane.

Next, Judge Haynes argues that Crane applies to discretionary

evidentiary decisions because the Supreme Court has not expressly held to

the contrary. See post, at 104 (“[N]either Chambers nor Crane holds that a

defendant’s right to present a complete defense applies only when a state

court excludes evidence based on categorical evidentiary rules.”). But that

gets the AEDPA relitigation inquiry backwards. Our task is not to determine

whether Supreme Court precedent possibly permits Lucio to argue what she

argued, but whether that precedent positively precludes the state court from

holding what it held. See 28 U.S.C. § 2254(d); Woods v. Etherton, 136 S. Ct.

1149, 1152 (2016) (per curiam). The absence of precedent commands the

denial of relief to a state prisoner, not the grant of it.

Next, Judge Haynes insists that Crane applies to discretionary

evidentiary decisions because the Supreme Court has so held. Judge Haynes

acknowledges, as she must, that Crane limited its holding to “the blanket

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exclusion of the proffered testimony about the circumstances of petitioner’s

confession”—but she suggests we should ignore that limitation because it’s

only “one line” in the Court’s opinion. Post, at 105 (emphasis added by Judge

Haynes) (quoting Crane, 476 U.S. at 690). Of course, it is not true that

Crane’s limitations come from “one line” in the opinion. 14 And even if it was,

Crane’s holding remains binding on us in all events.

It’s even more troubling to interpret Montana v. Egelhoff as extending

Crane from blanket exclusions to discretionary ones. See id. at 105–06. In

Egelhoff, the Montana Supreme Court interpreted the Due Process Clause

and Crane to establish “the right to present and have considered by the jury

all relevant evidence to rebut the State’s evidence on all elements of the

offense charged.” 518 U.S. at 41–42 (emphasis omitted) (quotation omitted).

The Supreme Court emphatically reversed. See id. at 56. We are aware of no

authority for turning the Supreme Court’s rejection of one prisoner’s claim

into clearly established law that supports a second prisoner’s claim. Cf. Nerio

v. Evans, 974 F.3d 571, 575 (5th Cir. 2020) (holding a case rejecting one

Fourth Amendment claim does not clearly establish the law for another

Fourth Amendment claim).

Next, Judge Haynes asserts that Crane applies because the state

court’s discretionary ruling was not actually discretionary. See post, at 106.

The theory seems to be that because Texas’s relevance rule prohibits

14

Crane is replete with references to the distinction between discretionary and

categorical evidentiary rulings. See 476 U.S. at 689 (“We acknowledge . . . our traditional

reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial

courts.”); id. at 690 (“[W]e have never questioned the power of States to exclude evidence

through the application of evidentiary rules that themselves serve the interests of fairness

and reliability . . . .”); id. at 691 (“[S]ince . . . Kentucky . . . has [not] advanced any rational

justification for the wholesale exclusion of this body of potentially exculpatory evidence,

the decision below must be reversed.”).

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irrelevant evidence in absolute terms, state courts necessarily act

“mechanistically” and with “no discretion” when they apply it. Ibid. Not so.

Court decisions are “discretionary” when they “involv[e] an exercise of

judgment and choice.” Discretionary, Black’s Law Dictionary (11th

ed. 2019). Both judgment and choice obviously abound when it comes to

relevance determinations. Crane itself recognizes that trial judges are “called

upon to make dozens, sometimes hundreds, of decisions concerning the

[relevance] of evidence” in a given case. 476 U.S. at 689. Crane further

recognizes that federal law gives judges “wide latitude” in making those

decisions. Ibid. (quotation omitted). And state law does too. See Brown v.

State, 96 S.W.3d 508, 511 (Tex. App.—Austin 2002, no pet.) (“Questions of

relevance should be left largely to the trial court, relying on its own

observations and experience, and will not be reversed absent an abuse of

discretion.” (quotation omitted)); see also post, at 85, 103, 106 (Haynes, J.,

dissenting) (noting that the state habeas court reviewed the trial court’s

evidentiary ruling for abuse of discretion). We refuse to interpret the Due

Process Clause to mean otherwise.

In her last effort to liken this case to Crane, Judge Haynes admits that

the cases are distinguishable. See post, at 88. Judge Haynes seizes on the

statement in Crane that “evidence surrounding the making of a confession

bears on its credibility as well as its voluntariness.” 476 U.S. at 688 (emphases

added) (quotation omitted); see post, at 88, 97. From this statement, Judge

Haynes concludes that Lucio can disclaim Crane’s voluntariness holding—as

she did in her state habeas petition—while nonetheless relying on its

credibility holding to support her complete-defense claim. See post, at 88, 97.

AEDPA prohibits this argument too. On direct appeal, Lucio

characterized Crane as a case about the voluntariness of confessions. See

ROA.10841; post, at 88 (Haynes, J., dissenting). She recognized that Crane

applied the voluntariness requirement to police-created circumstances like

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“how long the questioning lasted” and “how many policemen were there.”

ROA.10841. So she invited the Court of Criminal Appeals to extend Crane’s

reasoning to a new form of involuntary interrogation statements—namely,

those affected by battered woman syndrome. She did not, however, base her

direct-appeal Crane claim on the theory that battered woman syndrome made

her statements less credible, or that it made her less likely to have committed

capital murder. That’s why the Court of Criminal Appeals resolved Lucio’s

Crane claim in terms of voluntariness alone: she hadn’t argued anything else.

See supra at 10.

In state habeas, Lucio’s understanding of Crane remained unchanged.

She cited Crane only once—and only to disclaim any reliance on it. After all,

Lucio continued to conceptualize Crane as a voluntariness case that

restricted a trial court’s ability to exclude “evidence regarding the

circumstances under which [a] confession [i]s taken.” ROA. 8029 n.36. And

because Lucio had changed her defense strategy from challenging

voluntariness to challenging “whether [she] was likely to have engaged in

ongoing abuse of Mariah” in the first place, she no longer needed Crane.

ROA.8029 n.36. So, if we take Lucio at her word, she was not trying to

introduce expert testimony to “answer the one question every rational juror

needs answered: If [Lucio] is innocent, why did [s]he previously admit h[er]

guilt?” Contra post, at 79, 104 (Haynes, J., dissenting); post, at 70, 73–74

(Elrod, J., dissenting). Rather than contesting the credibility of her

statements, Lucio contended the Constitution compelled the admission of

Pinkerman’s testimony because it “was relevant to . . . demonstrating that

[she] did not have the propensity to commit violence against Mariah.”

ROA.8033–34. Some might wish that Lucio litigated the case differently. But

we are not free to condemn the state court for addressing Lucio’s claims as

she presented them. See also supra at 44 n.10.

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D.

Finally, the dissenters point to Scrimo v. Lee, 935 F.3d 103 (2d Cir.

2019), and Fieldman v. Brannon, 969 F.3d 792 (7th Cir. 2020). See post, at

107–08 (Haynes, J., dissenting). Neither helps the dissenters.

Scrimo held that a state court violates AEDPA when it “fails to extend

a principle of clearly established law to situations which that principle should

have, in reason, governed.” 935 F.3d at 112 (quotation omitted); see also id.

at 114 (reiterating the failure-to-extend principle). Then Scrimo held the state

court unreasonably failed to extend Crane by excluding certain witness

testimony about drug deals. See id. at 108–10, 120. This is unhelpful to the

dissenters for three reasons. First, no member of our court agrees with the

Second Circuit’s unreasonable-failure-to-extend reading of AEDPA. And

that’s for good reason—because the Supreme Court has squarely and

expressly repudiated it. See White, 572 U.S. at 426 (rejecting “the

unreasonable-refusal-to-extend rule on which respondent relies”).

Second, far from supporting the dissenters, Scrimo holds “‘[a] court

does not unreasonably apply federal law in failing to guess a theory of

relevance that was not argued at trial.’” 935 F.3d at 113 (quoting Fuller v.

Gorczyk, 273 F.3d 212, 222 (2d Cir. 2001)); see also Corby v. Artus, 699 F.3d

159, 168 (2d Cir. 2012) (“The state trial judge was not required to read

between the lines of counsel’s motion to divine a previously unasserted legal

theory . . . .” (cited and quoted in Scrimo, 935 F.3d at 113)). The fact that

Scrimo’s lawyer apparently articulated a Crane-based challenge to the

exclusion of testimony in his trial does nothing to help Lucio, whose lawyer

did not.

Third, when it came time to tackle specifics, the Second Circuit

produced a rule that looks nothing like the rules the dissenters (or we) set

forth here. Compare Scrimo, 935 F.3d at 115 (“If the evidentiary ruling was

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correct pursuant to a state evidentiary rule, . . . [w]e consider whether the

evidentiary rule is arbitrary or disproportionate to the purposes it is designed

to serve. On the other hand, if the potentially exculpatory evidence was

erroneously excluded, we must look to whether the omitted evidence

evaluated in the context of the entire record creates a reasonable doubt that

did not otherwise exist.” (quotations omitted)), with post, at 99 (Haynes, J.,

dissenting) (“[A] state court violates a defendant’s right to present a

complete defense if (1) the excluded evidence was critical to the defense, and

(2) the state court failed to provide a rational justification for its exclusion.”

(citations omitted)). The dissenters cannot claim to embrace Scrimo because

they reject all three of these holdings.

They fare no better under Fieldman. There, the Seventh Circuit held

that “the state trial court’s exclusion of Fieldman’s testimony was a decision

contrary to” Crane. 969 F.3d at 800. Or perhaps it didn’t. See post, at 107

n.20 (Haynes, J., dissenting) (“[A]lthough the court in Fieldman wrote that

the state trial court’s adjudication was ‘contrary to’ clearly established law,

the holding was in fact based under the ‘unreasonable application’ prong.”).

We take no position as to whether the dissenters misunderstand Fieldman or

whether Fieldman misunderstands itself. Either way, Fieldman turned on the

state court’s exclusion of the defendant’s own testimony when he took the

stand at trial. See 969 F.3d at 801. It’s well-settled—outside of Crane—that

trial courts cannot impose such limits on a defendant’s own testimony. See,

e.g., Rock, 483 U.S. at 49. It’s also irrelevant to this case.

* * *

The judgment of the district court is AFFIRMED.

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Leslie H. Southwick, Circuit Judge, joined by Costa and Willett,

Circuit Judges, concurring:

I agree we should deny relief despite the difficult issue of the exclusion

of testimony that might have cast doubt on the credibility of Lucio’s

confession. That exclusion was the key evidentiary ruling at trial. Able

colleagues in dissent have shown the factual imperative that jurors hear this

testimony. Nonetheless, I cannot accept the legal reasoning of the dissenting

opinions. Instead, I conclude that current, clearly established Supreme

Court authority falls short of permitting us to reject the state habeas court’s

consideration of that issue.

This separate opinion is offered despite the analysis contained in the

erudite principal opinion for the court. In a much more thorough manner

than here, it explains the denial of relief. I am unable to join all that is there

and wish to explain my more limited reasons to affirm.

The dissenters express well their view that there was expert testimony

that, if jurors had only heard it, could have impacted the verdict. We are all,

though, working within the constraints of AEDPA. Its premise is that

someone who has received a criminal conviction in state court has an initial

means within the state-court system to challenge the validity of the

conviction, then has a much more constrained means of challenging the state-

court decision in federal court.

Fundamentally for me, what is at issue in the present appeal is whether

a Supreme Court decision with language helpful to Lucio’s claims, relied on

by the dissenters but explained in other terms by this court’s principal

opinion, permits us to conclude that the state court erred in rejecting this

claim and then to correct the error.

The precedent, of course, is Crane v. Kentucky, 476 U.S. 683 (1986).

Its relevance is to the exclusion of the expert testimony of Dr. John

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Pinkerman and, less importantly, of Ms. Norma Villanueva. It is now argued

that they would have explained for jurors why someone like this defendant,

after hours of interrogation, would have falsely admitted to killing someone.

Because Lucio’s confession admitted to the essentials of the indictment, it

was imperative that some doubt about the confession be created. The Crane

decision certainly is helpful on that claim, most explicitly when it stated that

a state court cannot be “permitted to exclude competent, reliable evidence

bearing on the credibility of a confession when such evidence is central to the

defendant’s claim of innocence.” Id. at 690. Interpreting Crane as applied to

our facts, both to what happened at trial and the proceedings since, is the

difficult part of this appeal.

Exhaustion of the claim is one issue. A state prisoner must have

“exhausted the remedies available in the courts of the State” on a claim

before we may consider it. 28 U.S.C. § 2254(b)(1)(A). It seems the

dissenters are correct that the State conceded that the issue is preserved.

Regardless, in my view, exhaustion is not outcome-determinative.

The claim is that the state court unconstitutionally prevented the

admission of reliable evidence bearing on the credibility of a confession, and

that this evidence was central to the defendant’s claim of innocence. A

constitutional right to its introduction is said to arise under Crane, a decision

predating the rulings in this case. Thus, the state court allegedly reached “a

decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States.” § 2254(d)(1). To preview the conclusion of the analysis that

follows, I state here that the interpretation of Crane that is necessary for relief

in this case is not clearly established.

The principal opinion for the court already well explains that Crane

reviewed a decision by a state’s supreme court that analyzed for the first time

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what a new rule of state procedure meant as to juror consideration of

confessions. See KY. R. CRIM. P. 9.78 (repealed 2014). The state trial-

court judge determined prior to trial that the confession was voluntary; at

trial, the court excluded evidence relating to voluntariness as not being

relevant to the jury’s function. Crane v. Commonwealth, 690 S.W.2d 753,

753–54 (Ky. 1985), rev’d, 476 U.S. 683 (1986). The Kentucky Supreme

Court agreed with excluding evidence as to voluntariness because the new

procedural rule left it solely to the trial judge to decide that issue, while jurors

could consider other challenges. Id. at 754.

The Court held there were three flaws in Kentucky’s evidentiary rule:

(1) it found no support in Supreme Court cases, (2) it was based on a

misconception of the role of confessions at trial, and (3) “under the

circumstances of this case, . . . [it] deprived petitioner of his fundamental

constitutional right to a fair opportunity to present a defense.” Crane, 476

U.S. at 687. The Court quoted a precedent that “evidence surrounding the

making of a confession bears on its credibility,” not just on “its

voluntariness.” Id. at 688 (quoting Jackson v. Denno, 378 U.S. 368, 386 n.13

(1964)).

The Court then identified a near consensus in the states as well as

under federal rules to allow all evidence about a confession to be submitted

to jurors regardless of a pretrial failure to suppress. Still, “even a consensus

as broad as this one is not inevitably congruent with the dictates of the

Constitution.” Id. at 689. Important to my analysis of the opinion, the Court

recognized that state trial judges need to make countless evidentiary

decisions in a trial, and evidentiary rules may be applied that “serve the

interests of fairness and reliability.” Id. The facts in Crane easily permitted

the Court to decide that this “blanket exclusion . . . deprived [Crane] of a fair

trial.” Id.

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The Supreme Court did not choose among different possible

constitutional sources for its holding. It held that what Kentucky was doing

violated this defendant’s right for “a meaningful opportunity to present a

complete defense.” Id. at 690 (quoting California v. Trombetta, 467 U.S. 479,

485 (1984)). There was “no new ground” being broken in saying that the

“opportunity to be heard” is fundamental to due process, and a component

of that is to permit the introduction of “competent, reliable evidence bearing

on the credibility of a confession when such evidence is central to the

defendant’s claim of innocence.” Id.

One possible explanation of what was “clearly established” by Crane,

even if not with clarity, is that the decision invalidated the application of any

evidentiary rule that creates a “blanket” bar to a category of evidence and in

the specific case prevented a defendant from presenting a meaningful

defense. I agree with that sense of the Court’s opinion. Another possibility

is that a federal court may grant relief based on an everyday evidentiary

ruling, such as the one about relevance in this case, when that ruling

prevented a defendant from introducing evidence that can be characterized

as central to the defense. Based on Crane itself and on other caselaw, my view

is that the opinion does not apply to a simple, discretionary, even if errant,

evidentiary decision by a state-court judge. To make every evidentiary ruling

a potential issue of constitutional dimension is beyond my understanding of

Crane.

Of particular importance to my conclusion about Crane, the Supreme

Court has emphasized — in this precise area of limits on examination of

witnesses — that lower courts must be careful in defining “clearly

established law.” To conclude that its precedent supports a “broad right to

present ‘evidence bearing on [a witness’] credibility,’” the Court held, was

framing “clearly established Federal law” at too “high [a] level of

generality.” Nevada v. Jackson, 569 U.S. 505, 512 (2013) (first alteration in

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original). I find no Supreme Court opinion holding that an error in the

discretionary application of a general evidentiary standard is a constitutional

violation.

Related precedents often have addressed a rule governing some

evidentiary category, starting with Chambers v. Mississippi, 410 U.S. 284,

302–03 (1973), which concerned a bar to any evidence that ran afoul of the

common-law voucher rule; then Rock v. Arkansas, 483 U.S. 44, 62 (1987), in

which hypnotically refreshed testimony was inadmissible; later, United States

v. Scheffer, 523 U.S. 303, 305 (1998), which concerned a military evidentiary

rule barring polygraph results; and Holmes v. South Carolina, 547 U.S. 319,

331 (2006), which involved a prohibition of any evidence of third-party guilt.

In summary, I conclude that Crane overrides any blanket evidentiary

rule that prevented introduction in the particular case of reliable, competent

evidence central to the defense. For Lucio to succeed, Crane must do more.

Perhaps the Supreme Court will interpret Crane more broadly, but I cannot,

in light of what I have expressed here, conclude that Crane clearly established

law helpful to Lucio.

My joining the refusal to allow relief in this case comes from the

interplay of my interpretation of the limitations that AEDPA places on

federal courts and my analysis of the limitations of Crane. This case, though,

is a clear example that justice to a defendant may necessitate a more

comprehensive review of state-court evidentiary rulings than is presently

permissible under law that is established with sufficient clarity.

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Patrick E. Higginbotham, Circuit Judge, joining Judge Haynes’s

dissent:

Dancing with words cannot mask the reality that we execute few with

means and by metrics flowing from the pens of judges faithfully drawing upon

fealty to an abstraction of our “federalism,” one that screens the

performance of poorly funded state judicial systems—themselves victims of

political subscription to the death penalty while refusing to fund it. As the

Court majority upholds the ending of one life at the hand of the state—

Melissa Lucio’s, now on death row for twelve years—it perversely eases the

slide to the end of the death penalty. It does so with a hawking, adversarial

draw upon the jurisprudence of capital punishment with springs at every

turn. This with a prosecution deeply flawed from its inception and leaving

our hand as a failure at every level of government, shadowed by a threadbare

narrative leaving backstage Melissa’s story, including the role in her life of

Texas’s Department of Family and Protective Services, for good or naught.

To these eyes, it need not and should not have happened, as the thoughtful

dissenting opinions explain. I here add a few lines to bring to the fore

Melissa’s life and her history with DFPS, specifically Child Protective

Services, a history that frames this case.

I.

Melissa’s father abandoned his wife and six children, leaving

Melissa’s mother as the family’s sole provider. Melissa’s mother was drawn

to dalliances with men who did not contribute to the family’s wellbeing, so

care for Melissa and her siblings often devolved to these men while their

mother struggled for their living. At age six, Melissa suffered sexual abuse at

the hands of one of her mother’s live-in lovers. This continued, with her

mother’s acquiescence, until Melissa was eight years old. Abuse would

remain a feature of Melissa’s relationships with the men closest to her. At

age sixteen, she dropped out of high school to marry Guadalupe Lucio and

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bore him five children by the time she turned 24. Guadalupe was a physically

and emotionally abusive alcoholic, who abandoned Melissa and his children

in 1994. So too was his successor Robert Alvarez, who, among other reported

incidents, publicly punched Melissa. Yet on the night Mariah died, after

hours of interrogation, it was Robert, not a lawyer, who Melissa asked Ranger

Escalante to see. 1

CPS’s involvement with Melissa began in 1995, when the agency

charged her with “neglectful supervision” but took no action. By 1998 at the

latest, CPS was aware that Robert in service of himself had introduced

Melissa to cocaine. Between 1999 and 2000, CPS learned that with the birth

of Gabriel, both mother and child tested positive for the drug. CPS records

reflect that in 2000, Melissa’s children told investigators that she, Robert,

and another adult male in the household were “using drugs.” CPS conducted

no investigation or drug testing in connection with the 2000 report and left

the children in Melissa’s care.

CPS recorded two drug-related incidents with Melissa in November

and December of 2001, as well as two apparently separate incidents of

“physical neglect.” Again, CPS performed no drug tests and made no inquiry

concerning the nature or quantity of drugs involved. In 2002, CPS recorded

a charge of neglectful supervision against Melissa, prompted by reports that

her young son had been seen in the street “chasing cars” and that several of

1

It is telling that at 3 a.m., after being denied the opportunity to see Robert, Melissa

said to Escalante “I don’t know what you want me to say. I’m responsible for it,” before

making a series of admissions that the State relied on as a confession of responsibility for

Mariah’s death. At Escalante’s prompting, Melissa conceded that she spanked and pinched

Mariah at times, without ever admitting to striking the cranial blows that proved fatal. But

overlooking the equivocal nature of her confession, Melissa was denied the opportunity to

explain why she would have taken responsibility for Mariah’s death if she did not inflict the

fatal injuries.

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her daughters were engaged in inappropriate sexual activity. In 2003, CPS

was informed that another of Melissa’s children, Sara, tested positive for

cocaine at birth. CPS recorded additional charges of neglectful supervision

and physical neglect in 2004, just prior to Mariah’s birth; CPS closed those

cases without taking any action. Mariah tested positive for cocaine shortly

after her birth at Melissa’s home in September 2004.

CPS records indicate that Melissa was directed to undergo substance

abuse counseling and parenting courses, but the records reflect that she

seldom remained with these programs. Case notes consistently reflect issues

with Melissa’s income and housing; CPS documented that the family was

homeless at least once. Case notes also reflect CPS’s awareness of a

consistent set of behavioral problems for the Lucio children, including

physical aggression to the point of violence and sexual misbehavior. On more

than one occasion, there was evidence that the older children had beaten their

younger siblings, but CPS made little, if any, inquiry into these incidents.

CPS removed Melissa’s children from her care for a period spanning

September 2004 to November 2006. In December 2006, with many of

Melissa’s children just returned to her from foster care, CPS’s intervention

was required again because Melissa could not pay her rent and was about to

lose her apartment. CPS conducted a drug test—Melissa was negative—and

provided her with rent support. CPS had no recorded visits with Melissa in

January or February 2007 prior to Mariah’s death.

These facts compel the observation that the tragedy of Mariah’s death

unfolded against the depressingly familiar background of the State’s struggle

with CPS’s systemic failures, now documented in this Court’s recent

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opinions. 2 We there observed that DFPS, and by extension CPS, have

persisted in a state of “organizational and administrative chaos” for decades

resulting in an “epidemic of physical and sexual abuse” among the thousands

of children in its care; 3 that “[w]here children have reported abuse or neglect

to the agency, investigations are inadequate;” that DFPS sports a 75% error

rate in its investigations of abuse; 4 that “DFPS’s inability to prevent abuse is

exacerbated by its incompetence in responding to incidents once they have

occurred.” 5

As of 2019, there were roughly 51,000 children in DFPS’s legal care,

with several thousand more throughout Texas receiving family preservation

services. 6 Its “caseworkers handle, on average, 28 children’s cases at a time,

with caseworkers at the upper end of the distribution handling 40, sometimes

60.” 7 By the State’s own reckoning, these caseloads greatly exceed what is

practicable for any individual caseworker. 8 As we previously recognized,

2

See M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237, 260–68 (5th Cir.

2018); M. D. by next friend Stukenberg v. Abbott (Stukenberg II), 929 F.3d 272, 281–93 (5th

Cir. 2019) (Higginbotham, J. concurring in part and dissenting in part).

3

Stukenberg II, 929 F.3d at 284 (Higginbotham, J. concurring in part and dissenting

in part).

4

Stukenberg I, 907 F.3d at 292.

5

Id. at 291.

6

See CPS Conservatorship: Children in DFPS Legal Responsibility, Texas Dep’t

of Fam. & Protective Servs.,

https://www.dfps.state.tx.us/About_DFPS/Data_Book/Child_Protective_Services/Co

nservatorship/Children_in_Conservatorship.asp.

7

Stukenberg I, 907 F.3d at 290.

8

“DFPS produced a Work Measurement Study, which concluded that ‘DFPS

caseworkers expended an average of 9.7 hours per month on case profiles most often

associated with PMC children, and that these workers had an average of 137.9 hours per

month to spend on their casework.’ Dividing the average time available (137.9) by the

average time per case (9.7), each PMC caseworker could handle a caseload of 14

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“high caseloads [] are a direct cause of high turnover rates,” and “DFPS

experiences extraordinary turnover among caseworkers.” 9 By conservative

estimates, “16% of caseworkers leave in their first six months, 25% in their

first year, and 43% in their first two years.” 10 The high attrition rates among

caseworkers in turn “exacerbate the caseload problem.” 11 With evidence

that these problems have been presented to the State “repeatedly over the

past two decades,” this Court determined “that the State is deliberately

indifferent to the risks posed by its policies and practices” to the children in

its care. 12

In its long superintendence of Melissa, DFPS never recorded or

expressed concern that she physically abused any of the children in her care.

To its credit, despite the difficulties of managing this large enterprise, 13 it

recognized that Melissa’s troubles centered on her inability to escape a

succession of relationships with dominating and abusive men who to their

own ends, encouraged her use of cocaine, a stimulant. That reality is strong

footing for Melissa’s claimed denial of the opportunity to present a complete

defense: that she only tried to accept the blame for the acts of others, a

children. On the basis of the DFPS Study, the Special Masters recommended that the

district court order DFPS to implement a caseload standard in the range of 14 to 17 PMC

cases per caseworker.” Stukenberg I, 907 F.3d at 301.

9

Id. at 260, 291.

10

Id. at 291.

11

Id. at 260.

12

Id.

13

DFPS is a participant in a form of cooperative federalism through which the

agency receives well over $700 million in federal funding, annually, representing roughly

half of the agency’s yearly budget. Stukenberg II, 929 F.3d at 290 (Higginbotham, J.

concurring in part and dissenting in part) (“[R]oughly half of the State’s child-welfare

agency spending [is] covered by federal funds, over $730 million in fiscal year 2016.”).

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phenomenon of personality produced by her own lifetime of abuse in a world

of abject poverty.

II.

This is not the story writ large. It is the story drawn from the trial

record—the factual matrix against which the now assailed proffers of counsel

and Dr Pinkerton were made. Their words take their full meaning—not as an

excised, freestanding abstraction—but as they were laced into the narrative

fabric. Only with a walk away from the developed facts of the full record can

the denial of Melissa’s sole defense be shrunk into an “evidentiary ruling”

with its attending judicial discretion, one that, if rejected, it is then said would

bring a cascade of federal reviews of state court rulings in defiance of

federalism. But, of course, the walk away elides the reality that even the nigh

routine matters of the constitutional order must have their factual footing.

The footing here for Melissa’s claim that she was denied a complete

defense cannot be brushed aside with an assertion that the trial court and

hence the courts that followed were not put on notice. Facts matter. In this

morality play of citizen decisions of life or death, the jury represents the

people, but they did not hear her defense. 14 The trial court ruled that

14

The defense of false confession has for decades played a prominent role in

exonerations. See Samuel Gross and Maurice Possley, For 50 Years, You’ve Had “The Right

to Remain Silent” So why do so many suspects confess to crimes they didn’t commit?, The

Marshall Project (June 12, 2016),

https://www.themarshallproject.org/2016/06/12/for-50-years-you-ve-had-the-right-to-

remain-silent. It is not an esoteric creation of the defense bar, but a widely recognized

phenomenon. See, e.g., Richard Leo, False Confessions: Causes, Consequences, and

Implications, 37, J. Am. Acad. Psychiatry & L. (September 2009),

http://jaapl.org/content/37/3/332. The State adopted one of the recommended responses

to this problem by taping the interrogation. But it ignored the recommendation that

extended accusatorial tactics be banned.

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Melissa’s proposed defense was irrelevant to the question of her guilt or

innocence, a ruling that amounted to a complete rejection of her defense, one

not based on any deficiency in its presentation. For all the years that CPS

looked over her shoulder it never found physical abuse; this child did not die

of neglect, but of violent blows to her head so powerful as to produce fatal

subdural bleeding. Whether these injuries could have been from a fall down

the stairs or by a stronger hand than Melissa’s was disputed. The jury was

entitled to hear her defense that it was not Melissa who struck the blow. And

as Melissa well knew, the death of a child in her custody meant the automatic

removal of all children from her custody, leaving her without support. It is

plain that, with a fair reading of this record, the Court steps on no sovereign

interest of the state, as explained by the Supreme Court in Crane.

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JENNIFER WALKER ELROD, Circuit Judge, joined by HIGGINSON, Circuit

Judge, dissenting:

Melissa Lucio is not without culpability. Her young daughter, Mariah,

endured a shockingly violent life, suffering horrific abuse that Lucio either

perpetrated or

This text is long and has been trimmed here. Open the source document for the complete record.