# Lucio v. Lumpkin

> Court of Appeals for the Fifth Circuit · February 9, 2021 · 987 F.3d 451

URL: https://www.frixlaw.com/law-library/cases/4659122

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 9, 2021
- **Citations:** 987 F.3d 451
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Death Penalty w/ Counsel
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4659122

## How later opinions describe it (automated extraction)

- describing the history of the exhaustion requirement

## Opinion text

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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Case: 16-70027 Document: 00515739449 Page: 58 Date Filed: 02/09/2021

No. 16-70027

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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Case: 16-70027 Document: 00515739449 Page: 59 Date Filed:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4659122. Public record. Not legal advice.