# Garza v. Thaler

> District Court, W.D. Texas · December 18, 2012 · 909 F. Supp. 2d 578

URL: https://www.frixlaw.com/law-library/cases/8704249

## Case

- **Full name:** Manuel GARZA, Jr., TDCJ No. 999434 v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division
- **Court:** District Court, W.D. Texas
- **Decided:** December 18, 2012
- **Citations:** 909 F. Supp. 2d 578; 2012 U.S. Dist. LEXIS 181619; 2012 WL 6604582
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Garcia
- **Judges:** Garcia
- **Cited by:** 6 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/8704249

## How later opinions describe it (automated extraction)

- discussing the long line of Fifth Circuit case law rejecting challenges to the allegedly unconstitutionally vague terms included in the Texas capital sentencing scheme’s future dangerousness special issue
- discussing the extensive Fifth Circuit case law rejecting constitutional challenges to the Texas 12/10 Rule premised upon the Supreme Court’s holdings in Mills, McKoy, and Caldwell

## Opinion text

MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA, District Judge.
Petitioner Manuel Garza,- Jr., filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his October, 2002 Bexar County conviction for capital murder and sentence of death. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
*586 I. Background
A. The Offense in Petitioner’s Own Words
There is no legitimate doubt as to the events of February 2, 2001 that resulted in the death of San Antonio Police Officer John “Rocky” Riojas. Within hours of his arrest on February 4, 2001, petitioner gave a voluntary, written statement in which he gave two, slightly different, accounts of how he fatally shot officer Riojas while violently resisting an otherwise lawful arrest on outstanding warrants. 1
Two days later, on February 6, 2001, petitioner gave a second written statement concerning his fatal shooting of officer Riojas. 2 In this second statement, in addition to furnishing additional background infor *587 mation, petitioner gave a third, more elaborate, account of his fatal shooting of officer Riojas which, in pertinent part, states as follows:
After I called Gilbert, I was walking back to the apartments and I seen the cop. The cop was in a marked car but without the lights. The car had the San Antonio Police Department markings on it so I knew he was a cop. I walked across the street and I saw the cop go by and I saw the cop make a U-turn. I knew the cop was gonna stop me because I was wearing all black. I knew the cop was gonna arrest me because I knew I had outstanding warrants. I knew I had an MTR for Escape and some other warrants for Burglary of a Vehicle and warrants for possession of marijuana.
The cop stopped me when he got out of his car about two feet from his car. The cop asked me to come to him and he asked me if I lived there and I told him no. The cop asked me my name and I gave him a fake name of Manuel Garcia. Once I gave him the fake name I seen the cop look towards his car, he was still standing by his door and I thought at that point that the cop was gonna check on me. I knew he’d find out about the warrants and I didn’t want to go to jail so I just ran. Right before I ran the cop told me to put my hands on the car. I knew that that was it and I ran. I never put my hands on the cop’s car. I gave the cop the false name so he wouldn’t find the warrants. I had my wallet but my wallet had a fake ID in it under another name.
As I started running the cop was telling me to stop. I just wanted to get away. I knew I was gonna go to jail and I didn’t want that. Who wants to be in jail? The cop was on my ass chasing me. The cop was close to me the whole time. He only told me to stop once though. I continued to run through the apartments until I got by some mailboxes. I finally stopped running because I was tired. The cop was right there and he grabbed my right hand and he punched me in the mouth. I grabbed the cop in a hug and I put both my arms around him and we started wrestling and we both fell to the ground. When we fell to the ground I was on the bottom and the cop was on top of me. I was on my back and the cop was on top of me his stomach to me. We started rolling around on the ground fighting. I was getting the officer on the ground and the officer was getting me on the ground. I was fighting so hard with the officer that the next day my whole body hurt. I was so sore I couldn’t hardly move. I don’t recall if we were saying anything or not.
Finally I seen the officer get his gun out. I was on my back on the ground and the officer was kneeling over me and he had his hand on me holding me down and I saw the officer pulling his gun. When the officer pulled his gun out. I was able to get my hands on his gun. I was able to twist around and the cop fell on his back. I had my hand on his gun and he had his hand on the gun and the gun was out in front of us. I had my left hand on his gun and the cop had his gun in his right hand. I grabbed the cop’s right wrist with my right hand and I grabbed the gun in my left hand. I was pulling forward with my left hand and pulling the cops right hand back away from the gun. The cop was trying to hold me down but he was trying to keep his gun too. I had a *588 better angle and position and I was able to pull the gun out of the cop’s hand.
I was able to crawl away a few feet and I got up on my knees. The cop came up behind me and he reached around and he grabbed my arm that had the gun in it. I still had the gun in my left hand and the cop was still trying to get the gun. I wanted to get away and the cop was holding me to where I had to reach over and the gun was pointing his way over my right shoulder- and the gun went off as the cop was grabbing it. When I pulled the trigger the cop’s body was against mine. When the gun went off I couldn’t hear nothing. My face didn’t burn but my ear hurted bad in the inside. My ear was ringing so bad that when the guy that took me home was trying to talk to me I couldn’t hear him. After I shot the cop fell right down. I only fired one shot. I didn’t fall but he did. I got up and I never even looked at the cop. I ran back into the apartments to where I was at before. I think I went to Albert’s first but I know I went to Tonya’s.
I want to say to the media and to the officer’s family and everybody out there that this wasn’t intentional and I truly think this was the cop’s fault. I don’t see why he wanted to pull out his gun. I want to say to the judge and the jury to please do justice and please have mercy on me and give me the benefit of the doubt. I don’t think I should get death or life in prison. I think I deserve something under that. I need a lot of help about how to do life. I wasn’t raised right. 3
B. Indictment
On April 11, 2001, a Bexar County grand jury indicted petitioner in cause no. 2001-CR-1877 on a single Count of capital murder, to wit, intentionally and knowingly causing the death of officer Riojas by shooting Riojas with a deadly weapon, i.e., a firearm, while Riojas was in the lawful discharge of an official duty and petitioner knew Riojas was a police officer. 4
C. Appointment of Defense Counsel
The state trial court appointed attorneys Raymond E. Fuchs and Edward Camara, Jr. as counsel for petitioner. 5 On July 11, 2002, attorney Fuchs filed a motion to withdraw as counsel for petitioner. 6 The state trial court granted said motion. 7 On July 19, 2002, the trial court appointed attorney Vincent D. Callahan as counsel for petitioner. 8
Petitioner filed both an unsuccessful objection in the trial court and an unsuccessful mandamus action in a state appellate court challenging the ex parte the substitution of attorney Fuchs with attorney Callahan. 9 In re Manuel Garza, 2002 WL 1856712 (Tex.App.-San Antonio, August 14, 2002).
D. Guilt-Innocence Phase of Trial
The guilt-innocence phase of petitioner’s capital murder trial commenced October 15, 2002.
*589 1. The Prosecution’s Case
In addition to petitioner’s statements excerpted above, the prosecution presented testimony from (1) various law enforcement personnel regarding communications officer Riojas had with other officers immediately before his fatal shooting and the evidence collected following the discovery of officer Riojas’ body immediately after the fatal shooting, 10 (2) a pair of civilian eyewitnesses to the fatal shooting, 11 (3) two *590 acquaintances of the petitioner regarding petitioner’s appearance and conduct immediately after the fatal shooting, 12 (4) the medical examiner who performed the autopsy on Riojas’ body, 13 (5) petitioner’s brother-in-law and sister regarding petitioner’s disposition of the murder weapon and petitioner’s behavior and statements in the days after the murder, 14 (6) a forensic *591 serologist regarding the presence of DNA consistent with Riojas on petitioner’s clothing and a necklace found at the crime scene, 15 (7) a firearms examiner regarding the safeties and trigger pull on Riojas’ Glock police pistol, 16 (8) the San Antonio *592 Police Detective who took petitioner’s written statements, 17 (9) a pair of San Antonio Police Officers who witnessed petitioner make post-arrest threats against other officers. 18
2. The Defense’s Case
The defense called (1) a civilian employee of the San Antonio Police Department who testified, at the time petitioner executed his first written statement, the petitioner said his shooting of Riojas had been accidental, 19 (2) a trace evidence analyst regarding the absence of gunshot residue on petitioner’s jacket/trench coat, 20 (3) an acquaintance of petitioner who saw peti *593 tioner the evening of the fatal shooting, 21 (4) a second trace evidence analyst regarding the presence of gunshot residue on Riojas’ clothing, 22 (5) a friend of petitioner who was stopped by officer Riojas days before the fatal shooting and asked about petitioner’s whereabouts, 23 (6) a friend of petitioner who witnessed the beginning of the confrontation between petitioner and officer Riojas (but not the fatal shooting) and who had also been questioned by Riojas in the days before the fatal shooting regarding petitioner’s whereabouts, 24 and (7) a former BCADC inmate who once overheard petitioner screaming “help me, help me,” while both were in custody. 25
3. The Verdict
On October 24, 2002, after deliberating less than three hours, petitioner’s jury returned its verdict, finding petitioner guilty *594 beyond a reasonable doubt of capital murder. 26
E. Punishment Phase of Trial
The punishment phase of petitioner’s capital murder trial commenced on October 25, 2002.
1. The Prosecution’s Evidence
The prosecution presented police officers and lay witnesses who testified regarding a wide variety of crimes committed by petitioner, both as a juvenile and adult, including (1) the February 20, 1995 attempted burglary of an apartment, 27 (2) the April 2, 1995 theft of a motor vehicle and an ensuring vehicle chase, 28 (3) the May 6, 1995 attempted burglary of a vehicle, 29 (4) the October 19, 1995 theft of a motor vehicle, 30 (5) the November 9, 1995 burglary of a habitation, 31 (6) the November 18, 1995 theft of a motor vehicle, 32 (7) *595 the February 21, 1996 theft of a motor vehicle, 33 (8) the February 29, 1996 burglary of a habitation, 34 (9) the October 10, 1997 arrest of petitioner on a youth commission warrant, at which time petitioner was found on school property in the possession of three knives and a screwdriver, 35 (10) the October 20, 1997 search of petitioner’s bedroom at his uncle and aunt’s home during which search police found a wealth of stolen property and a Glock pistol and two loaded magazines, 36 (11) petitioner’s December 24, 1997 escape from a juvenile halfway house, 37 (12) petitioner’s December 29, 1997 theft and burglary of a motor vehicle, 38 (13) petitioner’s December 31, 1997 to January 1, 1998 theft of a motor vehicle and the ensuing high speed chase and crash of the stolen vehicle, 39 (14) *596 petitioner’s January 29, 1999 theft of a vehicle and destruction of the football field at petitioner’s former high school, 40 (15) petitioner’s January 30, 1999 burglary of a vehicle, 41 (16) petitioner’s theft and burglary of a vehicle on March 5, 1999, 42 (17) petitioner’s theft and burglary of a vehicle on April 15, 1999, 43 (18) petitioner’s May 5, *597 1999 theft of a pair- of expensive tennis shoes from a department store, 44 (19) petitioner’s July 1, 1999 unauthorized use of a motor vehicle and the ensuing high speed chase through a residential community, 45 (20) petitioner’s July 6, 2000 escape from custody following arrest and the extensive search leading to petitioner’s re-arrest on outstanding warrants, 46 (21) petitioner’s burglary of a vehicle on October 16, 2000, 47 (22) petitioner’s October 31, 2000 arrest on charges of driving while under the influ *598 ence, without a valid driver’s license or proof of insurance, and possession of marijuana, 48 (23) petitioner’s burglaries, with others, of several vehicles in the same apartment complex on November 29, 2000 and the ensuing high speed chase that led to petitioner’s arrest and subsequent written confession that he had burglarized three vehicles, 49 (24) petitioner’s January 9, 2001 burglary of a vehicle, 50 and (25) petitioner’s second burglary on January 24, 2001 of one of the same vehicles he had burglarized on November 29, 2000. 51
The prosecution also presented documentary evidence establishing the petitioner had been convicted on separate occasions of multiple charges of unauthorized use of a motor vehicle, as well as charges of theft, escape, evading arrest, theft, criminal mischief, resisting arrest, and unlawfully carrying a weapon. 52 A copy of petitioner’s juvenile conviction records was also admitted into evidence, along with a complete copy of petitioner’s Texas Youth Commission file. 53
*599 A San Antonio Police Officer testified that, following petitioner’s arrest on February 4, 2001, he observed petitioner displaying a cocky demeanor and saw petitioner make a slashing gesture across his neck and flashing gang signs. 54
2. The Defense’s Evidence
Petitioner’s uncle (the brother of petitioner’s mother) testified, in pertinent part, that (1) he was close to petitioner while petitioner was young, (2) petitioner was a good student in elementary school, (3) petitioner’s mother was “always a good mother,” (4) petitioner’s father was sent to prison and was never around when petitioner was growing up, (5) petitioner continued to do well in school even after his father went to prison, (6) petitioner’s father died from an overdose of heroin after being released from prison, (7) he never saw petitioner’s father use drugs in front of petitioner or the other children, (8) petitioner was not trying to impress people or imitate his father by stealing cars, (9) he heard a little bit about abuse by petitioner’s father, (10) petitioner’s mother was a good person who raised her children correctly, made sure her children had food when they were hungry and a roof over their heads, (11) petitioner had “every advantage from his mother that a child could have,” (12) he was proud of his sister’s efforts to raise her children, and (13) he had been to prison himself but was the only adult male in petitioner’s life other than petitioner’s father. 55
*600 Petitioner’s older sister testified, in pertinent part, that (1) their mother was good but their father was not good, (2) their father was very abusive toward their mother, (3) their father was verbally and physically abusive toward her and petitioner, (4) their father sexually abused her when she was seven years old and the petitioner was “poisoned” when she told petitioner what their father had done to her, (5) their father went to prison twice when they were growing up and did not live with their family after he was released the second time, (6) petitioner had to repeat the seventh grade but was a good student, (7) petitioner had no adult male role models, (8) two or three relatives of their mother went to prison, all of their father’s brothers went to prison, but their mother has never been to prison, (9) their father died of a drug overdose and petitioner took his death very hard, (10) petitioner was very peaceful when in custody in the Texas Youth Commission and in state prison, (11) petitioner knows the difference between right and wrong and would not be a danger to society if given a sentence of life imprisonment, and (12) she had no knowledge regarding the details of petitioner’s criminal record. 56
Petitioner’s mother testified, in pertinent part, that (1) she was eighteen when petitioner was born, (2) their family moved at least once a year because petitioner’s father was using drugs, (3) petitioner’s father did drugs (heroin) in front of their children, (4) petitioner’s father was not a good provider or a good husband and was physically abusive toward their children, striking petitioner often, (5) petitioner’s father went to prison four or five times, (6) petitioner was hurt when his father was released from prison but did not live with their family, (7) petitioner had to repeat the seventh grade but was a good student, (8) petitioner began acting out and hurting himself when his father died, (9) petitioner wanted more than she could furnish or provide, (10) petitioner was peaceful when incarcerated and would not be a danger to society if imprisoned, (11) petitioner attended a lot of elementary schools, (12) she had no knowledge of petitioner using drugs, and (13) she filed a formal complaint with Child Protective Services after she learned her husband had sexually abused their daughter. 57
3. The Verdict
On October 29, 2002, after deliberating just over two and a half hours, the jury returned its verdict at the punishment phase of petitioner’s capital murder trial, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all the evidence, including the circumstances of the offense and the petitioner’s character and personal moral culpability, there were not sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. 58 The state trial court imposed sentence in accordance with the verdict. 59
*601 F. Direct Appeal
Petitioner appealed his conviction and sentence, asserting six points of error. 60 The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence in an unpublished opinion. Garza v. State, AP 74,467, 2005 WL 395442 (Tex.Crim. App. February 16, 2005). Petitioner did not thereafter seek certiorari review of his conviction or sentence from the United States Supreme Court.
G. First State Habeas Corpus Proceeding
On October 25, 2004, petitioner filed his first state habeas corpus application, urging thirteen claims therein. 61
The state habeas trial court held an evidentiary hearing in petitioner’s first state habeas corpus proceeding on March 24, 2008, March 31, 2008, and April 23, 2008 during which the parties presented the testimony of petitioner’s paternal uncle Raul Gonzales, Jr., clinical psychologist *602 Dr. Jack Ferrell, petitioner’s co-counsel at trial — attorney Ed Camara, sociologist Dr. Katherine Allen, and petitioner’s lead trial counsel — attorney Vincent D. Callahan.
In an Order issued September 22, 2008, the state habeas trial court issued its findings of fact and conclusions of law and recommended that petitioner’s first state habeas corpus application be denied. 62
The Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied state habeas relief in an unpublished order. Ex parte Manuel Garza, WR-70,797-01, 2008 WL 5245545 (Tex.Crim.App. December 17, 2008).
H. Initial Proceedings in this Court
On December 16, 2009, petitioner Sled his original petition for federal habeas corpus relief in this Court, along with a voluminous set of exhibits thereto. Docket entry nos. 11-12.
On January 7, 2010, petitioner filed a motion to stay, requesting abeyance of proceedings in this Court to permit petitioner to return to state court and exhaust state habeas corpus remedies on a variety of new claims and new evidence never previously presented to any state court. Docket entry no. IS. This Court granted that request in an Order issued February 18, 2010. Docket entry no. 17.
I. Second State Habeas Corpus Proceeding
On June 17, 2010, petitioner filed his second state habeas corpus application. 63
The Texas Court of Criminal Appeals dismissed petitioner’s second state habeas corpus application “as an abuse of the writ without considering the merits of the claims.” Ex parte Manuel Garza, WR 70,797-02, 2011 WL 4826968 (Tex.Crim. App. October 12, 2011).
J. Return to this Court
On January 26, 2012, petitioner filed his amended federal habeas corpus petition together with all of the voluminous docu *603 ments he had attached to his second state habeas corpus application. Docket entry nos. 29-30.
On March 26, 2012, respondent filed his answer to petitioner’s amended petition, arguing in part that petitioner had procedurally defaulted on a portion of petitioner’s ineffective assistance claims by failing to raise same in the state courts until petitioner’s second state habeas corpus proceeding. Docket entry no. 31.
II. Standard of Review
Because petitioner filed his federal habeas corpus action after- the effective date of the AJEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 , 121 S.Ct. 1910, 1918 , 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on ah unreasonable determination of'the facts in light of the evidence presented in the state court proceeding.. Brown v. Payton, 544 U.S. 133, 141 , 125 S.Ct. 1432, 1438 , 161 L.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 , 120 S.Ct. 1495, 1519 , 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254 (d).
The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254 (d)(1) have independent meanings. Bell v. Cone, 535-U.S. 685, 694, 122 S.Ct. 1843, 1850 , 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141 , 125 S.Ct. at 1438 ; Mitchell v. Esparza, 540 U.S. 12, 15-16 , 124 S.Ct. 7, 10 , 157 L.Ed.2d 263 (2003) (“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”). A state court’s failure to cite governing Supreme Court authority does not, per se, establish the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Mitchell v. Esparza, 540 U.S. at 16 , 124 S.Ct. at 10 .
Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Brown v. Payton, 544 U.S. at 141 , 125 S.Ct. at 1439 ; Wiggins v. Smith, 539 U.S. 510, 520 , 123 S.Ct. 2527, 2534-35 , 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132-33 , 130 S.Ct. 665, 673 , 175 L.Ed.2d 582 (2010) (“A federal habeas court can only set. aside a state-court decision as ‘an unreasonable application of ... clearly established Federal law,’ § 2254(d)(1), if the state court’s application *604 of that law is ‘objectively unreasonable.’ ”); Wiggins v. Smith, 539 U.S. at 520-21 , 123 S.Ct. at 2535 . The focus of this inquiry is on whether the state court’s application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, 550 U.S. 465, 473 , 127 S.Ct. 1933, 1939 , 167 L.Ed.2d 836 (2007) (“The question under the AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”); Wiggins v. Smith, 539 U.S. at 520 , 123 S.Ct. at 2535 ; Price v. Vincent, 538 U.S. 634, 641 , 123 S.Ct. 1848, 1853 , 155 L.Ed.2d 877 (2003) (“it is the habeas applicant’s burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner”).
As the Supreme Court has recently explained:
Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court “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 fair-minded disagreement.”
Bobby v. Dixon, — U.S.-,-, 132 S.Ct. 26, 27 , 181 L.Ed.2d 328 (2011) (quoting Harrington v. Richter, 562 U.S.-, -, 131 S.Ct. 770, 786-87 , 178 L.Ed.2d 624 (2011)).
Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 , 124 S.Ct. 2140, 2147 , 158 L.Ed.2d 938 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72 , 123 S.Ct. 1166, 1172 , 155 L.Ed.2d 144 (2003).
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code, provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court’s adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 , 130 S.Ct. 841, 849 , 175 L.Ed.2d 738 (2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”); Williams v. Taylor, 529 U.S. at 410 , 120 S.Ct. at 1522 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court’s factual determination. Wood v. Allen, 558 U.S. at 300-01, 130 S.Ct. at 849 ; Rice v. Collins, 546 U.S. 333, 341-42 , 126 S.Ct. 969, 976 , 163 L.Ed.2d 824 (2006).
In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court’s findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74 , 127 S.Ct. at 1939-40 (“AEDPA also requires *605 federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ”); Rice v. Collins, 546 U.S. 333, 338-39 , 126 S.Ct. 969, 974 , 163 L.Ed.2d 824 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”); Miller-El v. Dretke, 545 U.S. 231, 240 , 125 S.Ct. 2317, 2325 , 162 L.Ed.2d 196 (2005) (“[W]e presume the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254 (e)(1). It remains unclear at this juncture whether Section 2254(e)(1) applies in every case presenting a challenge to a state court’s factual findings under Section 2254(d)(2). See Wood v. Allen, 558 U.S. at 300-01, 130 S.Ct. at 849 (choosing not to resolve the issue of Section 2254(e)(l)’s possible application to all challenges to a state court’s factual findings); Rice v. Collins, 546 U.S. at 339 , 126 S.Ct. at 974 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).
However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 , 125 S.Ct. at 2325 (the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340 , 123 S.Ct. 1029, 1041 , 154 L.Ed.2d 931 (2003) (“Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.”).
Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir.2010) (federal habeas review of a state court’s adjudication involves review only of a state court’s decision, not the written opinion explaining the decision), cert. denied, — U.S.-, 132 S.Ct. 124 , 181 L.Ed.2d 46 (2011); St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006) (holding Section 2254(d) permits a federal habeas court to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 550 U.S. 921 , 127 S.Ct. 2133 , 167 L.Ed.2d 869 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006) (holding the same), cert. denied, 550 U.S. 920 , 127 S.Ct. 2129 , 167 L.Ed.2d 866 (2007); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (holding the precise question before a federal habeas court in reviewing a state court’s rejection on the merits of an ineffective assistance claim is whether the state court’s ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045 , 124 S.Ct. 2160 , 158 L.Ed.2d 736 (2004); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003) (holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) holding a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104 , 123 S.Ct. 963 , 154 L.Ed.2d 772 (2003).
III. Rembval of Lead Trial Counsel
A. The Claim
In his first claim for relief in his amended petition herein, petitioner argues the *606 state trial court’s “removal” over petitioner’s objection of petitioner’s original lead trial counsel practically on the eve of voir dire violated the Sixth and Fourteenth Amendments. 64
B. State Court Disposition
Petitioner presented a primarily state-law version of this same complaint to the Texas Court of criminal Appeals as point of error number one in his direct appeal. 65 The Texas Court of Criminal Appeals rejected this state-law argument on the merits. Garza v. State, 2005 WL 395442 , at *1~*2.
Petitioner re-urged the same arguments, relying upon both state and federal constitutional authorities, as his first ground for relief in his first state habeas corpus application. 66 The state habeas trial court concluded petitioner had procedurally defaulted on this new claim, to the extent this claim was different from petitioner’s similar complaint on direct appeal (i.e., relied upon federal authorities), by failing to present the new legal theories underlying this claim on direct appeal. 67 The Texas Court of Criminal Appeals adopted these conclusions when it denied relief in petitioner’s. first state habeas corpus proceeding. Ex parte Manuel Garza, 2008 WL 5245545 , at *1.
Petitioner presented an even more federalized version of this same complaint in his second state habeas corpus application. 68 The Texas Court of Criminal Appeals dismissed this application under state writ — abuse principles. Ex parte Manuel Garza, 2011 WL 4826968 , at *1.
C. Applicable Federal Law
“The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. ‘A defendant may not insist on representation by an attorney he cannot afford.’ ” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 , 109 S.Ct. 2646, 2652 , 105 L.Ed.2d 528 (1989) (quoting Wheat v. United States, 486 U.S. 153, 159 , 108 S.Ct. 1692, 1697 , 100 L.Ed.2d 140 (1988)). “Whatever the full extent of the Sixth Amendment’s protection of one’s right to retain counsel of his choosing, that protection does not go beyond ‘the individual’s right to spend his own money to obtain the advice and assistance of .... counsel.’ ” Caplin & Drysdale, Chartered v. United States, 491 U.S. at 626 , 109 S.Ct. at 2652 . “A defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice.” Id. The right to counsel of choice does not extend to defendants who require counsel to be appointed for them. United States v. Gonzalez-Lopez, 548 U.S. 140, 151 , 126 S.Ct. 2557, 2565 , 165 L.Ed.2d 409 (2006).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Su *607 preme Court in Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984):
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
To satisfy the first prong of Strickland , i.e., establish that his counsel’s performance was constitutionally deficient, a convicted defendant must show that counsel’s representation “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521 , 123 S.Ct. 2527, 2535 , 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 , 120 S.Ct. 1495, 1511 , 146 L.Ed.2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91 , 104 S.Ct. at 2064-66 . Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523 , 123 S.Ct. at 2536 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel’s performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Bobby v. Van Hook, 558 U.S. 4, 7 , 130 S.Ct. 13, 16 , 175 L.Ed.2d 255 (2009); Strickland v. Washington, 466 U.S. at 688-89 , 104 S.Ct. at 2065 . It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690 , 104 S.Ct. at 2066 .
To satisfy the “prejudice” prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534 , 123 S.Ct. at 2542 ; Strickland v. Washington, 466 U.S. at 694 , 104 S.Ct. at 2068 . A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.
In United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), decided the same day as Strickland , the Supreme Court held a presumption of prejudice similar to that recognized in Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708, 1718 , 64 L.Ed.2d 333 (1980), arises in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and finally, where the circumstances are such that even competent counsel very likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047 . *608 As examples of the latter two situations, respectively, the Supreme Court cited the denial of effective cross-examination in Davis v. Alaska, 415 U.S. 308, 318 , 94 S.Ct. 1105, 1111 , 39 L.Ed.2d 347 (1974) (defendant was denied the opportunity to cross-examine the prosecution’s key witness for bias), and the incendiary circumstances surrounding the trial of the so-called “Scottsboro Boys” addressed in Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932) (no individual attorney was appointed to represent the defendants and trial proceeded after a volunteer attorney from another state appeared on the first day of trial but confessed he had not had an opportunity to prepare for trial). United States v. Cronic, 466 U.S. at 659-61, 104 S.Ct. at 2047-48 . In a footnote, the Supreme Court recognized the continuing efficacy of its earlier holding in Cuyler , presuming prejudice where a defendant establishes an actual conflict of interest adversely affected his counsel’s performance. United States v. Cronic, 466 U.S. at 661 n. 31, 104 S.Ct. at 2048 n. 31.
In Bell v. Cone, 535 U.S. 685, 695-96 , 122 S.Ct. 1843, 1851 , 152 L.Ed.2d 914 (2002), the Supreme Court reiterated that the second exception to the requirement of Strickland “prejudice” it had envisioned in Cronic was limited to situations in which defense counsel completely failed to subject the prosecution’s case to meaningful adversarial testing. See Bell v. Cone, 535 U.S. at 697-98 , 122 S.Ct. at 1851-52 (holding complaints about trial counsel’s waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution’s ease throughout the sentencing proceeding). Simply put, garden variety ineffective assistance claims of the nature asserted by petitioner herein do not warrant application of the presumption of prejudice recognized in Cronic .
The presumption of prejudice recognized in Cronic does not apply where the defendant complains of merely shoddy or poor performance by his trial counsel; for a defendant to be entitled to such a presumption, his attorney’s failure must be complete. See Bell v. Cone, 535 U.S. at 697 , 122 S.Ct. at 1851 (holding the presumption applicable only when counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing); United States v. Griffin, 324 F.3d 330, 364, 364 (5th Cir.2003) (“When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice.”); Riddle v. Cockrell, 288 F.3d 713, 718 (5th Cir.2002) (holding “constructive denial of counsel” sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense), cert. denied, 537 U.S. 953 , 123 S.Ct. 420 , 154 L.Ed.2d 300 (2002); Mayo v. Cockrell, 287 F.3d 336 , 340 n. 3 (5th Cir. 2002) (holding the same), cert. denied, 537 U.S. 975 , 123 S.Ct. 443 , 154 L.Ed.2d 332 (2002); Burdine v. Johnson, 262 F.3d 336 , 344 n. 4 (5th Cir.2001) (holding the same), cert. denied, 535 U.S. 1120 , 122 S.Ct. 2347 , 153 L.Ed.2d 174 (2002); Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir.2000) (“ ‘A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.’ We have found constructive denial in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and official interference with the defense; and have stated *609 that constructive denial will be found when counsel fails to subject the prosecution’s case to any meaningful adversarial testing.” (citations and footnote omitted)).
D. AEDPA Analysis & De Novo Review of Federal Claims
1. The Undisputed Facts
Petitioner was represented at all times relevant to his capital murder charge by two court-appointed trial attorneys. One of those attorneys, Ed Camara, was appointed in February, 2001 and represented petitioner throughout petitioner’s trial court proceedings. 69 Attorney Raymond Fuchs, also appointed in February, 2001, was granted permission to withdraw from petitioner’s representation on July 11, 2002. 70 The state trial court appointed attorney Vincent D. Callahan to represent petitioner (and replace attorney Fuchs) on July 19, 2002. 71
A Jackson v. Denno hearing on petitioner’s motion to suppress and a hearing on other pretrial motions was held on August 29, 2002, during which both attorneys Callahan and Camara represented petitioner. 72 General voir dire of the jury venire took place the following date, i.e., on August 30, 2002, again with both attorneys Camara and Callahan representing petitioner. 73 Individual voir dire commenced September 16, 2002 and continued thereafter, once more with both attorneys Callahan and Camara representing petitioner. Save for the period between July 11 and July 19, 2002, petitioner was represented at all times relevant to petitioner’s capital murder trial by two court-appointed attorneys. Attorney Camara continuously represented petitioner from February, 2001 (more than six weeks prior to petitioner’s indictment) throughout petitioner’s capital murder trial. Thus, at no point during the trial court capital murder proceeding against petitioner was petitioner denied legal representation.
2. State Law Claims Do Not Warrant Federal Habeas Relief
Insofar as petitioner’s first claim herein relies upon alleged violations of petitioner’s state procedural or state constitutional rights in connection with the state trial court’s replacement of attorney Fuchs with attorney Callahan, that claim does not present a legitimate basis for federal habeas corpus relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68 , 112 S.Ct. 475, 480 , 116 L.Ed.2d 385 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780 , 110 S.Ct. 3092, 3102 , 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41 , 104 S.Ct. 871, 874 , 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68 , 112 S.Ct. at 480 ; Lewis v. Jeffers, 497 U.S. at *610 780 , 110 S.Ct. at 3102 ; Pulley v. Harris, 465 U.S. at 41 , 104 S.Ct. at 874 .
When a federal district court reviews a state prisoner’s habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter.
Coleman v. Thompson, 501 U.S. 722, 730 , 111 S.Ct. 2546, 2554 , 115 L.Ed.2d 640 (1991).
3. Federal Constitutional Claims Without Merit
Insofar as petitioner complains that he was denied legal representation in violation of the principle announced in Gideon v. Wainwright, 372 U.S. 335, 342-45 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (holding Sixth Amendment was violated when state court refused to appoint counsel to represent indigent criminal defendant in a non-capital felony case), that complaint lacks any arguable merit. As was explained above, petitioner was represented by at least one court-appointed counsel at all times throughout petitioner’s capital murder proceeding and, save for an eight-day period in July, 2002, was represented by two experienced criminal defense counsel. Petitioner’s argument that he was deprived of counsel during a critical juncture in his state criminal proceeding is refuted by even a cursory review of the petitioner’s trial court records and utterly without arguable merit.
Petitioner’s reliance on Cronic is likewise unavailing. As was explained above, the presumed prejudice principle of Cronic arises only in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and finally, where the circumstances are such that even competent counsel very likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047 .
The first of these three situations clearly does not apply to petitioner.
Petitioner’s complaints about the performance of his trial counsel (detailed in petitioner’s third claim herein) do not rise above the garden-variety type of complaints of ineffective assistance which must be evaluated under Strickland’s dual prongs. See Bell v. Cone, 535 U.S. at 697-98 , 122 S.Ct. at 1851-52 (holding complaints about trial counsel’s waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution’s case throughout the sentencing proceeding); United States v. Griffin, 324 F.3d at 364 (“When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice.”); Riddle v. Cockrell, 288 F.3d at 718 (holding “constructive denial of counsel” sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense).
Finally, petitioner has alleged no facts showing the circumstances of his capital murder trial were such as to render it impossible for his two, court-appointed, trial counsel to adequately represent petitioner within the parameters set forth in Strickland and Cronic . Attorney Callahan replaced attorney Fuchs more than a month before the pretrial hearing in petitioner’s capital murder trial and almost *611 two months before individual voir dire began. Under such circumstances, petitioner is not entitled to the presumption of prejudice recognized in' Cronic. Bell v. Cone, 535 U.S. at 697 , 122 S.Ct. at 1851 (holding the presumption applicable only when counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing).
Petitioner’s complaints about the substitution of attorney Fuchs by attorney Callahan do not implicate the Sixth Amendment’s right to counsel of one’s choosing. United States v. Gonzalez-Lopez, 548 U.S. at 151 , 126 S.Ct. at 2565 .
E. Conclusions
The Texas Court of Criminal Appeals’ rejection on the permits of petitioner’s primarily state-law complaints about the replacement of attorney Fuchs by attorney Callahan during the course of petitioner’s direct appeal was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the petitioner’s state court proceeding.
Furthermore, having examined de novo petitioner’s federal constitutional arguments in support of his initial claim herein, which federal claims petitioner raised for the first time in his state habeas corpus proceedings and were summarily dismissed by the state habeas court, this Court concludes that because petitioner’s federal constitutional complaints based upon Gideon v. Wainwright and Cronic (which the state habeas court summarily dismissed in the course of petitioner’s first and second state habeas corpus proceedings) lack any arguable merit, petitioner’s first ground for relief herein does not warrant federal habeas corpus relief.
IV. Ineffective Assistance Claims
A. The Claims
In his third ground for relief herein, petitioner argues that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to (1) adequately voir dire the jury venire regarding their views on the death penalty, (2) adequately investigate petitioner’s background and present available mitigating evidence, (3) call the defense team’s investigator as a witness to contradict prosecution witness Erica Henderson, and (4) introduce petitioner’s hospital records to show petitioner suffered facial injuries in his confrontation with Riojas. 74
B. State Court Disposition
Petitioner presented his third and fourth assertions of ineffective assistance in his third claim herein (i.e., failing to introduce petitioner’s hospital records or call the defense investigator to testify), and an abridged version of his second assertion of ineffective assistance herein (i.e., inadequate mitigation investigation), to the state court in his first state habeas corpus application. 75 In the course of its findings of fact and conclusions of law in petitioner’s first state habeas corpus proceeding, the state habeas trial court concluded, in pertinent part, that (1) there was no evidence before it showing any of the injuries reflected in the medical records had been caused by Riojas, 76 (2) the evidence at trial did not raise the issue of self-defense un *612 der applicable state law, 77 (3) the hospital records showing petitioner’s injuries would not have been admissible at petitioner’s capital murder trial, 78 (4) there was no evidence showing the defense investigator (Jeff Mitchel) was available to testify at petitioner’s trial, 79 (5) Erica Henderson admitted she told one of petitioner’s defense attorneys that the fatal shooting might have been accidental, 80 (6) as a result, the petitioner’s defense counsel could not have introduced extrinsic evidence that she had made the same statement, 81 (7) the testimony of petitioner’s paternal uncle Raul Gonzales would have added nothing of substance to the testimony furnished by petitioner’s three other family members who did testify during the punishment phase of petitioner’s capital murder trial, 82 (8) Raul Gonzalez’s many criminal convictions would have undermined any benefit from his testimony at trial, 83 (9) there was no evidence establishing that Dr. Allen was available to testify at petitioner’s capital murder trial, 84 (10) Dr. Allen’s opinions expressed during the state habeas corpus hearing were based solely upon her view of records and not upon any personal examination of petitioner, 85 (11) Dr. Allen’s testimony strongly supported a conclusion that petitioner would engage in future violent acts, 86 and (12) Dr. Allen’s testimony that petitioner was not properly diagnosed with social conduct disorder was not credible in light of the documentary evidence before the court regarding petitioner’s background, including petitioner’s documented misconduct while in custody. 87 The Texas Court of Criminal Appeals adopted these findings and conclusions when it rejected petitioner’s first state habeas corpus application on the merits. Ex parte Manuel Garza, WR 70797-01, 2008 WL 5245545 , at *1.
Petitioner presented the state habeas court with the same four ineffective assistance claims he presents in his third claim herein in his second state habeas corpus application. 88 The Texas Court of Criminal Appeals summarily dismissed petitioner’s second state habeas corpus application under state writ-abuse principles. Ex parte Manuel Garza, 2011 WL 4826968 , at *1.
C. Clearly Established Federal Law
The Sixth Amendment entitles criminal defendants to “the effective assistance of counsel,” ie., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant’s case (Wong v. Belmontes, 558 U.S. 15, 16-17 , 130 S.Ct. 383, 384 , 175 L.Ed.2d 328 (2009); Bobby v. Van Hook, 558 U.S. at 6-7, 130 S.Ct. at 16 ); and (2) give rise to a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-41 , 130 S.Ct. 447, 452-53 , 175 L.Ed.2d 398 (2009); Wong *613 v. Belmontes, 558 U.S. at 19-20 , 130 S.Ct. at 386 ).
As was explained in Section III.C. above, the constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064 .
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner’s trial counsel chosen a different course). Wong v. Belmontes, 558 U.S. at 19-20, 130 S.Ct. at 386 ; Wiggins v. Smith, 539 U.S. at 534 , 123 S.Ct. at 2542 . Strickland does not require the State to “rule out” or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a “reasonable probability” that the result of the punishment phase of a capital murder trial would have been different. Wong v. Belmontes, 558 U.S. at 26-29, 130 S.Ct. at 390-91 .
In evaluating petitioner’s complaints about the performance of his counsel under the AEDPA, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded petitioner’s complaints about his trial counsel’s performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003), cert. denied, 540 U.S. 1154 , 124 S.Ct. 1156 , 157 L.Ed.2d 1050 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test, this Court’s review of the un-adjudicated prong is de novo. See Porter v. McCollum, 558 U.S. at 38-39, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner’s trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390 , 125 S.Ct. 2456, 2467 , 162 L.Ed.2d 360 (2005) (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 , 123 S.Ct. at 2542 (holding the same).
A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009), cert. denied, 558 U.S. 839 , 130 S.Ct. 365 , 175 L.Ed.2d 62 (2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008), cert. denied, — U.S. -, 129 S.Ct. 2383 , 173 L.Ed.2d 1301 (2009); Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir.2000), cert. denied, 532 U.S. 1067 , 121 S.Ct. 2220 , 150 L.Ed.2d 212 (2001).
Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. at 698 , 122 S.Ct. at 1852 ; Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066 ; Scheanette v. Quarterman, 482 F.3d 815, 820 (5th Cir.2007), stay denied, 555 U.S. 1160 , 129 S.Ct. 1305 , 173 L.Ed.2d 482 (2009); Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.2007), cert. denied, 552 U.S. 948 , 128 S.Ct. 374 , 169 L.Ed.2d 259 (2007); Amador v. Quarterman, 458 F.3d at 410 ; Gonzales v. Quarterman, 458 F.3d 384, 390 (5th Cir.2006), cert. denied, *614 549 U.S. 1323 , 127 S.Ct. 1909 , 167 L.Ed.2d 568 (2007).
D. Procedural Default on Inadequate Voir Dire Complaint
Respondent correctly points out that petitioner presented the Texas Court of Criminal Appeals with his first assertion of ineffective assistance herein, i.e., petitioner’s complaint about the performance of his trial counsel during voir dire, in petitioner’s second state habeas corpus application, which the state habeas court dismissed under state writ-abuse principles.
The Texas Court of Criminal Appeals’ summary dismissal of petitioner’s second state habeas corpus application (which included petitioner’s first presentation of his initial assertion herein of ineffective assistance) on state writ-abuse principles constitutes a form of procedural default on same which bars federal habeas review of that claim. See, e.g., Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008) (“This court has held that, since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar.”), cert. denied, - U.S. -, 129 S.Ct. 2378 , 173 L.Ed.2d 1299 (2009); Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005) (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling), cert. denied, 547 U.S. 1136 , 126 S.Ct. 2059 , 164 L.Ed.2d 793 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004) (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), cert. denied, 543 U.S. 1124 , 125 S.Ct. 1067 , 160 L.Ed.2d 1074 (2005); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003) (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186 , 124 S.Ct. 1417 , 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163 , 124 S.Ct. 1170 , 157 L.Ed.2d 1208 (2004).
The Supreme Court’s recent holding in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012), affords petitioner no relief from his procedural default on his initial assertion of ineffective assistance herein. In Martinez , the Supreme Court carved out of its procedural default jurisprudence a narrow exception for claims of ineffective assistance by trial counsel which were not raised in a convicted criminal defendant’s first state habeas corpus proceeding because of the deficient performance of the defendant’s state habeas counsel. See Martinez v. Ryan, — U.S. at -, 132 S.Ct. at 1315 (“Inadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial ”). For the reasons set forth hereinafter, there was nothing professionally deficient about the failure of petitioner’s first state habeas counsel to present this same complaint to the state habeas court in the course of petitioner’s first state habeas corpus proceeding.
E. Failure to Adequately Voir Dire the Jury Venire
1. The Complaint
Petitioner argues that his trial counsel failed to properly voir dire the jury venire regarding their views on the death penal *615 ty. 89 For the reasons set forth herein, this Court alternatively concludes this complaint fails to satisfy either prong of Strickland analysis.
2. State Court Disposition
As explained above, however, petitioner did not present this specific complaint of ineffective assistance to the state courts until he included same in his second state habeas corpus application, which the Texas Court of Criminal Appeals summarily dismissed under state writ-abuse principles.
3. De Novo Review
Because no state court has ever addressed the merits of this aspect of petitioner’s multi-faceted ineffective assistance claims herein, this Court’s review of the merits of this complaint is necessarily de novo. See Porter v. McCollum, 558 U.S. at 38-39, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner’s trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. at 2467 (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice).
a. No Deficient Performance
Petitioner summarizes the voir dire examination of each of the twelve venire members who served as his petit jurors but does not recite any facts concerning the voir dire of the venire as a whole. Significantly, petitioner has failed to furnish this Court with the juror questionnaires completed by the jury venire prior to the start of individual voir dire examination. As this Court has explained previously, without access to the extensive juror questionnaires routinely employed in Bexar County capital cases, it is virtually impossible to properly evaluate the efforts of either the prosecution or criminal defense counsel to screen biased or unqualified venire members. See Jasper v. Thaler, 765 F.Supp.2d 783 , 816 n. 62 (W.D.Tex. 2011) (discussing the analytical hurdles to evaluating a Batson claim without access to the juror questionnaires completed by the venire members whom the petitioner claimed had been improperly struck by the prosecution), affirmed 466 Fed.Appx. 429 (5th Cir.2012). It is not an exaggeration to state that the extensive and detailed juror questionnaires routinely employed in Bexar County capital cases furnish the starting point for any objective analysis of the performance of either the prosecuting attorneys or defense counsel during voir dire in a capital case.
Petitioner’s complaints about the performance of his trial counsel during voir dire do not furnish specific facts alleging objectively unreasonable conduct on the part of his trial counsel. For instance, petitioner repeatedly complains that his trial counsel failed to object to the prosecution’s explanations of the terms employed in the Texas capital sentencing special issues. 90 Yet petitioner does not identify any legally valid objections his trial counsel could have made to the prosecution’s explanations of the terms in question during voir dire examination of petitioner’s jury venire. Petitioner’s trial counsel cannot reasonably be faulted for failing to make fruitless or meritless objections to the prosecution’s voir dire questions. See Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir.2009) (holding failure to raise a meritless objection does *616 not satisfy the deficient performance prong of Strickland), cert. denied, — U.S.-, 131 S.Ct. 1050 , 178 L.Ed.2d 870 (2011); Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.2007) (failure to raise futile or meritless objections is not ineffective lawyering), cert. denied, 552 U.S. 1314 , 128 S.Ct. 1874 , 170 L.Ed.2d 752 (2008); Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir.2002) (holding there was nothing deficient in counsel’s failure to object to the admission of psychiatric testimony that was admissible under then-existing precedent), cert. denied, 538 U.S. 926 , 123 S.Ct. 1573 , 155 L.Ed.2d 319 (2003); Robison v. Johnson, 151 F.3d 256, 261 (5th Cir.1998) (nothing deficient regarding trial counsel’s failure to seek admission of a document the state court concluded was inadmissible), cert. denied, 526 U.S. 1100 , 119 S.Ct. 1578 , 143 L.Ed.2d 673 (1999); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.1997) (failure to assert a meritless objection cannot be the grounds for a finding of deficient performance), cert. denied, 525 U.S. 969 , 119 S.Ct. 418 , 142 L.Ed.2d 339 (1998).
Petitioner also faults his trial counsel for failing to specifically question many of the venire members who served as petitioner’s petit jurors regarding their views on the death penalty. 91 Yet petitioner’s own summary of the voir dire of his petit jurors reveals that petitioner’s trial counsel did, in fact, question many of those same individuals regarding their views on capital punishment. Furthermore, petitioner’s summary fails to make any reference to the answers these venire members gave on their written juror questionnaires and only briefly touches on the responses these same venire members gave to the prosecution’s explanations and questions regarding the Texas capital sentencing special issues. This Court’s independent evaluation of the individual voir dire examination of petitioner’s petit jurors reveals the prosecuting attorneys asked each of these venire members extensive questions regarding their views on the death penalty and made numerous references to the venire members’ juror questionnaire answers. 92 It is readily apparent from this Court’s independent review of the individual voir dire of petitioner’s petit jurors that the questionnaire the venire members received and answered inquired extensively into the venire members’ views on capital punishment. Petitioner’s trial counsel cannot reasonably be faulted for failing to make inquiries that would have been repetitive *617 of the questions asked and answered on the jurors’ questionnaire and during voir dire examination by the prosecution.
If petitioner wishes to attack the performance of his trial counsel during voir dire, petitioner must furnish this 'Court with specific facts showing why in the context of the voir dire of the entire jury venire, including said counsels’ review of the venire members’ extensive juror questionnaire answers, his trial counsel’s efforts to identify disqualifying bias were objectively unreasonable. 93 This, petitioner has failed to do.
Petitioner admits that his trial counsel did, in fact, make challenges for cause against several of the venire members who served as petit jurors. 94 This Court’s independent review of the individual voir dire confirms this fact. 95 This Court’s in *618 dependent review of the voir dire examination of petitioner’s petit jurors also reveals that petitioner’s trial counsel did, upon occasion, ask questions clearly designed to inquire into the possibility the venire members might possess potentially disqualifying bias. 96
Petitioner does complain that his trial counsel failed to adequately inquire of the venire members (1) if someone convicted of murder of a police officer would automatically be a future danger within the meaning of the first capital sentencing special issue, (2) if a conviction for the murder of a police officer and a finding of future dangerousness would cause the person to “not consider mitigating evidence,” and (3) they would be able to consider and give effect to all relevant mitigating evidence offered by petitioner. 97
In point of fact, however, at several points during the voir dire of the venire members who ultimately served as petitioner’s petit jury, petitioner’s trial counsel did make voir dire inquiry regarding whether a venire member felt that a conviction for capital murder, standing alone, would justify an affirmative answer to the Texas capital sentencing scheme’s future dangerousness special issue. 98 Ab *619 sent access to the venire members’ juror questionnaires, this Court cannot determine intelligently whether it was objectively unreasonable for petitioner’s trial counsel to have failed to ask the same or similar questions to all other members of the petitioner’s jury venire. It is entirely possible the other venire members’ answers to the trial court’s questionnaire may have rendered similar voir dire questions reasonably unnecessary. Thus, petitioner has failed to carry his burden of showing it was objectively unreasonable for petitioner’s trial counsel to have failed to ask each member of petitioner’s petit jury voir dire questions regarding whether they would automatically answer the future dangerousness special issue affirmatively based solely upon a verdict of guilty on a capital murder charge.
As explained above, the prosecution carefully discussed the Texas capital sentencing special issues with almost every venire member who eventually served as a petit juror at petitioner’s capital murder trial, including discussing the nature of mitigating evidence from the prosecution’s perspective. 99 Thus, petitioner’s trial counsel had the benefit of not only reading those venire members’ juror questionnaire answers but also observing firsthand those potential jurors’ demeanor and interaction with the prosecutor during the prosecutor’s discussion of the nature of mitigating evidence. Moreover, inquiries into whether a venire member would disregard the presence of mitigating evidence when answering the mitigation special issue would have had the potential to offend potential jurors by suggesting they might disregard the trial court's foreseeable punishment-phase jury instructions and the plain language of the final capital sentencing special issue that the jury should consider “all the evidence” concerning the circumstances of the petitioner’s offense and the petitioner’s character, background, and personal moral culpability in answering that special issue. Thus, there were objectively reasonable reasons why petitioner’s trial counsel may have chosen not to ask potential jurors whether they would disregard mitigating evidence the defense planned to introduce at the punishment phase of trial. Under the record currently before this Court, petitioner has failed to carry his burden of proving the failure of his trial counsel to ask either of these latter two questions during voir dire caused the performance of said counsel to fall below an objective level of reasonableness.
Finally, this Court’s independent review of the voir dire examination of the petitioner’s petit jurors reveals many objectively reasonable bases for most of the decisions by petitioner’s trial counsel to accept those individuals as jurors. The first juror, Hazel Knipp, repeatedly described the burden of serving as a juror in a capital case as “a very serious thing,” “a lot of responsibility,” and “just overwhelming.” 100 Until questioned very thoroughly by the prosecution, the second juror displayed clear reluctance to participate in a process that would ultimately lead to a criminal defen *620 dant’s death. 101 The third and fourth jurors both said in response to questions by petitioner’s trial counsel that they believed mercy was a part of their own personal morality. 102 The fifth juror had a criminal conviction for carrying a sword in his vehicle and insisted he could be fair and impartial in returning a verdict at both phases of a capital trial. 103 The sixth juror was questioned extensively by both parties regarding her ability to remain fair during deliberations and base her verdict solely on the evidence but insisted she could remain fair. 104 The seventh juror informed the prosecutor during voir dire that he did not believe either the jury or the State had the right to take a life but insisted he could follow the trial court’s instructions regarding the law. 105 The eighth juror informed the prosecutor during voir dire that he believed the legality of a police officer’s conduct during an arrest was a critical aspect to a self-defense claim. 106 The ninth juror expressed the view that the death penalty should be imposed in only the worst cases. 107 The tenth juror, a gun owner, expressed a dislike for Glock pistols, stating he found them to be inaccurate weapons, and repeatedly asserted his ability to render a verdict based on the evidence, including a possible life sentence. 108 The eleventh juror expressed a distinction in her mind between the culpability associated with a premeditated murder as opposed to a merely intentional murder. 109 On his juror questionnaire, the twelfth juror apparently rated himself a “five” on a scale of one-to-ten regarding his willingness to always impose the death penalty. 110 Thus, there were objectively reasonable reasons why petitioner’s trial counsel chose to accept each of the foregoing venire members as jurors.
Each of the twelve persons asserted during their voir dire examination by the prosecution that they could follow the trial court’s instructions regarding the Texas capital sentencing scheme’s special issues and render a verdict based upon the evidence. In such a context, this Court independently concludes the failure of petitioner’s trial counsel to ask potentially offensive voir dire questions suggesting or implying that the venire member might willfully ignore the trial court’s instructions or disregard the plain language of the mitigation special issue commanding *621 consideration of “all the evidence” before the jury when answering the mitigation or Penry special issue did not cause the performance of said counsel to fall below an objective level of reasonableness. 111
Having independently reviewed the. voir dire examination of all twelve members of petitioner’s petit jury, and in light of the limited record in this proceeding (i.e., the absence from the record before this Court of the juror questionnaires completed by all of the petitioner’s venire members), this Court concludes petitioner has failed to carry his burden of proving the performance of his trial counsel during voir dire fell below an objective level of reasonableness.
b. No Prejudice
Petitioner alleges no specific facts showing that any of the twelve persons who served as his petit jurors possessed any disqualifying bias. As this Court has explained on several occasions, the standard for determining the constitutional fitness of a capital sentencing juror is set forth in a series of Supreme Court opinions dating back several decades:
In Witherspoon v. Illinois, 391 U.S. 510, 521-23 , 88 S.Ct. 1770, 1776-77 , 20 L.Ed.2d 776 (1968), the Supreme Court held that prospective jurors may not be excused from sitting on a capital jury simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Rather, the Supreme Court held as follows:
The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.
Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21.
In Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980), the Supreme Court emphasized the limitations Witherspoon imposed on the ability of the State to exclude members of a jury venire from service on a petit capital jury and directly addressed jury selection in Texas capital murder trials:
a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.
Adams v. Texas, 448 U.S. at 45 , 100 S.Ct. at 2526 .
In Adams , the Supreme Court further discussed the many practical consequences of its Witherspoon holding:
If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in cer- *622 ' tain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. * * *
[A] Texas juror’s views- about the death penalty might influence the manner in which he performs his role but without exceeding the “guided jury discretion” permitted him _ under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon .
The State could, consistently with Witherspoon , use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31(b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. * * *
[Njeither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. * * * Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in'the affirmative if they are convinced beyond, a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what then-honest judgment of the facts will be or what they may deem to be a reasonable doubt. * * * [T]he State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths.
Adams v. Texas, 448 U.S. at 46-50 , 100 S.Ct. at 2527-29 (citations omitted).
In Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), the Supreme Court further clarified its holdings in Witherspoon and Adams , holding that the proper inquiry when faced with a venire member who expresses personal, conscientious, or religious views on capital punishment is “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. at 424 , 105 S.Ct. at 852 . In Wainwright v. Witt, the Supreme Court also emphasized that, considerable deference is to be given the trial court’s first-hand evaluation of the potential juror’s demeanor and that no particular magical incantation or word choice need necessarily be followed in interrogating the potential juror in this regard. Id., 469 U.S. at 430-35 , 105 S.Ct. at 855-58 .
More recently, in Uttecht v. Brown, 551 U.S. 1 , 127 S.Ct. 2218 , 167 L.Ed.2d 1014 (2007), the Supreme Court reviewed its Witherspoon-Witt line of opinions and identified the following “principles of relevance”:
First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Third) to balance these interests, a *623 juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vim dicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.
Uttecht v. Brown, 551 U.S. at 9 , 127 S.Ct. at 2224 (citations omitted).
The Supreme Court emphasized the critical inquiry for Witherspoon-Witt purposes is not whether a state appellate court properly reviewed the propriety of the exclusion but, rather, whether the trial court correctly applied the appropriate federal constitutional standard. Uttecht v. Brown, 551 U.S. at 16-17 , 127 S.Ct. at 2228 . Finally, the Supreme Court admonished reviewing courts to defer to the trial court’s resolution of questions of bias arising from a potential juror’s conflicting voir dire answers because the trial court had the opportunity to observe the demeanor of the potential juror. Uttecht v. Brown, 551 U.S. at 20 , 127 S.Ct. at 2230 (“where, as here there is a lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion.”). “Courts reviewing claims of Witherspoon-Witt error, however, especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror.” Uttecht v. Brown, 551 U.S. at 22 , 127 S.Ct. at 2231 .
Bartee v. Quarterman, 574 F.Supp.2d 624, 662-64 (W.D.Tex.2008), CoA denied, 339 Fed.Appx. 429 (5th Cir.2009), cert. denied, 559 U.S. 1009 , 130 S.Ct. 1882 , 176 L.Ed.2d 370 (2010).
Having independently reviewed the entirety of the voir dire examination of the twelve venire members who served as petitioner’s petit jurors, this Court concludes none of those individuals were properly subject to challenges for cause based upon any disqualifying bias or demonstrated inability to set aside their personal opinions and render a verdict based solely upon the law and evidence. All of the jurors in question asserted they could set aside their personal views and render a verdict at both phases of petitioner’s capital murder trial based solely upon the evidence and the law as defined by the trial court. The Constitution requires nothing more.
Furthermore, the evidence presented by the prosecution at the guilt-innocence phase of petitioner’s capital murder trial was more than compelling, it was overwhelming. Petitioner confessed in writing to fatally shooting officer Riojas while engaging in conduct which can most charitably be called a violent attempt to avoid apprehension. At no point in his written statements did petitioner indicate he had made ■ any attempt to surrender to officer Riojas. On the contrary, petitioner’s written statements are filled with petitioner’s firm assertions that he did not want to be arrested despite petitioner’s actual knowledge that warrants for his arrest were outstanding. None of the eyewitnesses to the confrontation between petitioner and officer Riojas, including petitioner’s long time friend Jamie Martinez, claimed to have seen Riojas strike petitioner in the face as petitioner claimed. None of the relatives and friends with whom petitioner stayed in the days immediately after Rio *624 jas’ fatal shooting heard petitioner claim that he shot Riojas in self-defense. Finally, there is absolutely no evidence showing that, immediately after the shooting of Riojas, petitioner made any effort to obtain assistance for Riojas or to treat Riojas’ injuries himself. Thus, there is no reasonable probability a rational juror would have ever accepted petitioner’s claim that his fatal shooting of Riojas was accidental. Under such circumstances, there is no reasonable probability that, but for any act or omission by petitioner’s trial counsel during voir dire, the outcome of the guilt-innocence phase of petitioner’s capital murder trial would have been any different.
All of petitioner’s jurors indicated they understood the Texas capital sentencing special issues, could follow the trial court’s instructions regarding same, and render a verdict based upon the evidence. 112 The prosecution’s evidence during the punishment phase of petitioner’s capital murder trial included compelling evidence linking petitioner with no less than two dozen serious criminal offenses, both as a juvenile and adult, including multiple instances in which petitioner committed felonies while armed with a handgun and multiple episodes in which petitioner drove stolen vehicles in a reckless manner, showing a deliberate disregard for the safety of others on the road. Petitioner’s second written statement attempted to assign blame to officer Riojas for his own fatal shooting (despite petitioner’s repeated insistence in his same written statements that he was determined not to permit officer Riojas to arrest him). Thus, at no point in his written statements did petitioner express genuine contrition or remorse for his fatal shooting of officer Riojas. On the contrary, several San Antonio Police officers testified without contradiction that, in the hours immediately following his arrest, petitioner made threats and threatening gestures toward officers. Under such circumstances, there is no reasonable probability that, but for any act or omission by petitioner’s trial counsel during voir dire, the outcome of the punishment phase of petitioner’s capital murder trial would have been any different.
4. Conclusions
Petitioner procedurally defaulted on this aspect of his multi-faceted ineffective assistance claim herein by failing to present this same complaint about the performance of his trial counsel during voir dire to the state courts until petitioner’s second state habeas corpus proceeding.
Alternatively, after an independent, de novo, review, this Court concludes petitioner’s complaints about the performance of his trial counsel during voir dire all fail to satisfy either prong of Strickland analysis. Petitioner’s complaints about the performance of his trial counsel during voir dire do not warrant federal habeas corpus relief.
F. Failure to Investigate and Present Mitigating Evidence
1. The Complaint
Petitioner argues that his trial counsel failed to adequately investigate petitioner’s abused and neglected childhood and to present then-available mitigating evidence showing, among other things, that (1) petitioner suffers from Fetal Alcohol Syndrome as a result of his mother’s heroin abuse and drinking alcohol during her pregnancy with petitioner, (2) petitioner’s father was physically and emotionally abusive toward petitioner and petitioner’s mother, (3) petitioner’s father sexually assaulted petitioner’s sister when she was six *625 or seven, (4) petitioner’s father (as well as virtually every other male relative of the petitioner) went to jail or prison when petitioner was young, (5) petitioner’s childhood was chaotic and filled with destructive influences in the form of drug abuse and criminal activities by his relatives, (6) petitioner suffers from “affective disorder” accompanied by “an apparent chronic and ingrained paranoia and possible delusional features,” (7) petitioner suffers from deficiencies in executive functions, severe mood disorder, delusional disorder, and hallucinations, (8) petitioner was a good student in elementary school, (9) petitioner began stealing cars when he was fifteen, after his father died of a heroin overdose, to get money for his family, (10) petitioner had a lot of anger in him after his father died, (11) petitioner’s intellectual functioning was in the low average to borderline range, (12) petitioner has been involved with street gangs since age twelve, (13) petitioner has poor impulse control and'a difficult time controlling his emotions, and (14) petitioner may lack coping skills and experience difficulty meeting the demands of daily life as well as problems with interpersonal relationships. 113
2. State Court Disposition
Petitioner presented most of these same complaints during his first state habeas corpus proceeding. 114 More specifically, petitioner presented the state habeas court with (1) numerous juvenile probation reports and psychological evaluations documenting (a) petitioner’s abused, neglected, and impoverished, childhood, (b) the difficulties petitioner experienced adjusting following the death of his- father, and (c) petitioner’s unstable family situation, 115 (2) an affidavit dated October 21, 2004 from psychologist Dr. Jack Ferrell based upon a rfeview of petitioner’s criminal justice records, school records, and a clinical evaluation in which Dr. Ferrell opined that petitioner’s history did not reflect a history of violence or a tendency toward a violent nature, 116 (3) an affidavit dated October 19, 2004 from psychologist Dr. Susana A. Rosin, in which she stated, in part, that her clinical interview of petitioner and review of petitioner’s records led her to conclude petitioner possesses average intellectual ability, petitioner’s fatal shooting of officer Riojas was accidental, petitioner had no prior history of violent crimes, and petitioner had adjusted very well to the structure and routine of death row, 117 (4) an unexecuted affidavit dated October 19, 2004 from sociologist Dr. Kate Allen (a) detailing petitioner’s abusive, criminal, father’s violent treatment of petitioner, petitioner’s mother, and petitioner’s sister Corinna, (b) concluding that petitioner derived a “rush” from engaging in high risk behaviors such as auto theft, burglary, and high-speed chases which “imprinted” petitioner’s nervous system, (c) inexplicably concluding there was no violence in petitioner’s family, criminal, or relationship history (apparently disregarding the same evaluation’s detailed history of physical abuse and violence wrought upon petitioner’s family by petitioner’s father), (d) concluding petitioner grew up in a subculture at the intersection of poverty, racism, and the frailty of masculinity, (e) concluding petitioner “managed to become an essentially non *626 violent, even ‘decent’ criminal who specialized in stealing others’ property in the place of working a legitimate job, as he was striving to find his way into adulthood,” and (f) concluding petitioner “is not the. type of criminal for which the death penalty was designed,” 118 (5) an affidavit dated October 22, 2004 from petitioner’s paternal uncle Raul Gonzales, Jr., stating, in part, that (a) he witnessed petitioner’s father physically abusing petitioner, (b) petitioner’s father also physically abused petitioner’s mother, (c) the accusation that petitioner’s father sexually abused petitioner’s sister was a lie, (d) petitioner’s mother was unable to protect petitioner from his father and used drugs and had other boyfriends when petitioner’s father was in jail or prison, (e) the only way the petitioner could help his mother and family financially was by stealing, (f) he was in prison himself several times during petitioner’s childhood, and (g) he spoke with petitioner’s trial counsel’s mitigation specialist regarding petitioner’s family background the foregoing subjects but was never called to testify at petitioner’s trial, 119 (6) an affidavit dated October 20, 2004 from petitioner’s mitigation specialist at trial, Ann Matthews, and unsigned copies of purported correspondence with petitioner’s trial counsel, stating, in part, that (a) she urged petitioner’s trial counsel to interview and present petitioner’s uncle Raul Gonzales, petitioner’s mother, petitioner’s sister, and mental health and TDCJ experts as witnesses at trial but (b) she was discharged by petitioner’s trial counsel over disagreements as to how mitigation was to proceed, 120 and (7) an affidavit dated October 20, 2004 from a former Texas Department of Criminal Justice (“TDCJ”) employee discussing TDCJ procedures for classifying capital offenders. 121
During the evidentiary hearing held in petitioner’s first state habeas corpus proceeding, petitioner also presented live testimony from (1) petitioner’s paternal uncle Raul Gonzales, Jr. describing (a) the severe physical and emotional abuse of petitioner and petitioner’s mother he witnessed at the hands of petitioner’s father and (b) the criminal history and drug abuse of petitioner’s father, 122 (2) psychologist Dr. Jack Ferrell describing (a) his clinical and mental status evaluation of petitioner prior to trial, (b) his meeting with petitioner’s trial counsel to discuss same on October 28, 2002, during which he explained that he did not believe petitioner’s records showed a propensity for violence or significant disturbance, and (c) his professional opinion that petitioner did not have a history of violence or a tendency to act in a violent manner in the future, 123 *627 (3) petitioner’s second-chair counsel at trial, attorney Ed Camara, who testified, in part, that (a) he had done no discovery or trial preparation by the time attorney Ray Fuchs was permitted to withdraw from petitioner’s case, (b) he never discussed trial preparation for the punishment phase of trial with attorney Callahan (who replaced Fuchs), (c) he did not discuss Jack Ferrell with Callahan and did not recall Ferrell being present during trial, (d) the court-appointed investigator (Jeff Mitchel) suggested obtaining the services of a mitigation specialist (Ann Matthews), (e) he became upset with Matthews and terminated her services when she filed vouchers with the trial court instead of waiting until after the completion of the trial to seek payment, and (f) attorney Callahan did no preparation whatsoever for the punishment phase of trial, 124 and (4) sociologist, Dr. Katherine Allen, who testified, in part, that (a) petitioner’s parents were teenagers who very quickly had two children, (b) criminal activity was “very standard” on both sides of petitioner’s family, (c) petitioner’s father was very abusive and extremely controlling of his wife and children, (d) petitioner’s father molested petitioner’s sister, (e) petitioner’s father was involved in criminal activity, drug abuse, and selling drugs,- (f) children tend to mimic the behaviors they see in their home, (g) “stealing and drug use and abuse and selling was normalized in the family,” (h) petitioner began shoplifting at age thirteen, prior to his father’s death, (i) after his father’s death, petitioner pursued the same criminal activities as his father, (j) petitioner’s friend Ronald taught petitioner how to steal cars, (k) from ages fourteen to seventeen, petitioner’s brain became “imprinted or entrained” for the rush petitioner received from stealing, (i) petitioner was not a violent youth and very non-confrontational in his crimes, (m) aside from stealing, petitioner did not act out, (n) petitioner did have a number of family risk factors for future violence by youthful offenders, including a family history of criminal behavior, substance abuse, family management problems, family conflict, and parental attitudes. favorable toward crime and substance abuse, and (o) petitioner had the following risk factors from age six to adolescence: economic deprivation, community disorganization and low neighborhood attachment, family conflict, and parental attitudes favorable toward crime and substance abuse. 125
*628 The state called petitioner’s former first-chair trial counsel, attorney Vincent D. Callahan, who testified, in part, that (1) he prepared for petitioner’s trial by reading the state’s file, going to the scene of the offense, talking with petitioner’s former lead trial counsel, and interviewing petitioner, (2) petitioner told him that he (petitioner) shot officer Riojas, (3) attorney Camara took the lead with regard to guilt-innocence phase of trial while he (attorney Callahan) took the lead with regard to the punishment phase of trial, pretrial motions, and petitioner’s motion to suppress, (4) the two defense attorneys split responsibilities with regard tó voir dire, (5) his voir dire strategy was to find a juror who would not vote in favor of the prosecution, (6) he asked Dr. Ferrell to prepare a mental health evaluation of petitioner and sent Dr. Ferrell the state’s Rule 404(b) notice and a copy of his own discovery notes, (7) he believed Dr. Ferrell, if called to testify at trial, would say petitioner was a future danger, (8) the three members of petitioner’s family who testified at the punishment phase of petitioner’s capital' murder trial were the only members of petitioner’s family who showed up for trial, (9) he did not consider subpoenaing other members of petitioner’s family because he believed forcing people to testify makes them “angry,” reluctant witnesses who might hurt the party who issued the subpoena, (10) Ann Matthews seemed to be a money grubber whose letters all seemed to focus on her getting paid, (11) he spoke with five members of petitioner’s family during lunch breaks at trial, (12) only three family members showed up for the punishment phase of petitioner’s capital murder trial, (13) the jury heard everything he had been told by petitioner’s family members regarding petitioner’s troubled youth, (14) he hoped to convince the jury that petitioner had learned his criminal behavior from his family and the jury would hold petitioner less responsible for same, (15) he believed he conferred sufficiently with Dr. Ferrell and that Ferrell had communicated an opinion that petitioner was a future danger, (16) attorney Camara was upset that he was not the first chair trial counsel and unhappy with attorney Callahan’s “punishment phase-oriented” voir dire, (17) Camara wanted a more “guilt-innocence phase-oriented” voir dire, (18) based upon his conversations with petitioner, however, attorney Callahan believed there was no chance of obtaining an acquittal, and (19) he did not feel it was necessary to have an expert witness develop the circumstances of petitioner’s family history. 126
The parties also agreed to the admission of extensive school and TDCJ records relating to petitioner. 127
The state habeas trial court made the following findings and conclusions regard *629 ing this aspect of petitioner’s ineffective assistance claims: (1) petitioner demonstrated four of the seven risk factors for future violence by youthful offenders during the period from conception to age six, 128 (2) petitioner demonstrated ten of the fifteen risk factors from ages six to adolescence, 129 (3) petitioner’s history did not evidence many of the preventive factors which tend to prevent an individual from having a delinquent or violent future, 130 (4) Dr. Allen’s analysis of petitioner’s propensity for future violence did not factor in petitioner’s murder of officer Riojas and was dismissive with regard to the weapons petitioner had been found to possess, both inside prison and in the course of his criminal offenses, 131 (4) Dr. Allen’s disagreement with Dr. Sherman’s diagnosis of conduct disorder was based, in part; upon Dr. Allen’s rejection of a number of factors relied upon by Dr. Sherman, including petitioner’s possession of weapons during several offenses, petitioner’s early sexual activity, petitioner’s episodes of running away from home and running away from a halfway house, petitioner’s involvement with gangs, and petitioner’s involvement in fights as a juvenile, 132 (5) Raul Gonzales’s testimony at the state habeas corpus hearing did not add anything substantive regarding petitioner’s background to the trial testimony of petitioner’s mother, sister, and uncle, 133 (6) Gonzales’s lengthy criminal record undermined any benefit his testimony might have had at trial, 134 (7) there was no evidence Dr. Allen was available to testify during petitioner’s trial, 135 (8) Dr. Allen’s testimony during the state habeas corpus hearing strongly supported a conclusion that petitioner would engage in future violent acts, 136 (9) sociologist Dr. Allen’s opinion that petitioner had been improperly diagnosed by psychologist Dr. Sherman with social conduct disorder was not credible because Dr. Allen ignored several pieces of undisputed evidence, including evidence showing petitioner had run away from home and escaped from a juvenile halfway house, petitioner’s early on-set sexual activity and drug and alcohol abuse, petitioner’s possession of weapons on campus and during the commission of multiple crimes, petitioner’s documented fighting, and petitioner’s gang membership, 137 and (10) had Dr. Allen testified at petitioner’s trial, the prosecution could have rebutted her testimony with that of Dr.. Sherman and the jury would likely have learned the social disorder with which petitioner was diagnosed as a juvenile often develops into full=blown antisocial personality disorder. 138 Based upon the foregoing findings and conclusions, the state trial court recommended denial of petitioner’s complaint about petitioner’s ineffective assistance claim premised upon petitioner’s trial counsels’ alleged failure to adequately investigate and present mitigating evidence. 139 The Texas Coxirt of Criminal Appeals expressly adopted the foregoing findings and conclusions when it denied *630 petitioner’s first state habeas corpus application. Ex parte Manuel Garza, WR 70797-01, 2008 WL 5245545 , at *1.
In his second state habeas corpus proceeding, petitioner re-presented all of the allegations, affidavits, and other documents he had presented to the state habeas court during his first state habeas corpus proceeding. 140 In addition, petitioner also presented the state habeas court with a plethora of new affidavits and documents purportedly supporting this aspect of his ineffective assistance claim, including (1) an affidavit dated December 15, 2009, in which clinical psychologist Dr. Jack Ferrell (a) summarizes various juvenile records of petitioner which Dr. Ferrell states he had not seen at the time of petitioner’s trial, (b) identifies a number of factors which negatively influenced petitioner during childhood (including petitioner’s abusive father, petitioner’s father’s sexual abuse of petitioner’s sister, and petitioner’s “abusive, non-supportive, and rejecting” family environment), (c) recites findings from earlier psychological evaluations stating petitioner had engaged in a pattern of antisocial behavior, displayed poor impulse control, and had difficulty controlling his emotions, and (d) criticizes petitioner’s trial counsel for failing to further explore these subjects and obtain expert testimony regarding same 141 ; (2) an affidavit dated December 10, 2009 from clinical social worker Gerald L. Byington in which he (a) criticizes the extent of pretrial investigation by Ann Matthews and petitioner’s trial counsel into petitioner’s family background, (b) identifies additional areas of investigation for mitigating evidence which he claims petitioner’s defense team failed to adequately explore, (c) criticizes the investigation into petitioner’s background done by petitioner’s first state habeas counsel (“no evidence was presented at the writ hearing about what information and individual testimony could have been made available to the trial jury had someone bothered to look”), (d) claims that a minimum of one hundred hours of investigation is necessary in every mitigation investigation, (e) claims that between 150 and 200 hours of mitigation investigation was necessary in petitioner’s case (at a rate of $100 per hour), (f) asserts without citation to any specific evidence in the record that petitioner’s mother might have used alcohol or drugs during her pregnancy with petitioner and petitioner suffers from IQ deficits, (g) discusses the head injuries petitioner suffered as a child which were mentioned in various juvenile psychological evaluations, (h) argues neuropsychological testing should have been performed on petitioner, and (i) argues developmental and gang experts should have been involved in the investigation of petitioner’s background 142 ; (3) an affidavit dated June 14, 2010 from petitioner’s paternal uncle Raul Gonzales, Jr. in which he (a) asserts he gave Ann Matthews all of the information he knew about petitioner’s background, (b) repeats most of the information about the criminal and abusive behavior of petitioner’s father to which he testified during petitioner’s first state habeas corpus proceeding, (c) asserts petitioner’s mother used heroin during her pregnancy with petitioner, (d) asserts petitioner, petitioner’s sister, and petitioner’s mother all helped petitioner’s *631 father sell drugs, (e) asserts petitioner and his sister observed petitioner’s father using and selling drugs, (f) asserts all of the men in petitioner’s family have been to prison, some multiple times, (g) once again claims the allegations of petitioner sexually abusing petitioner’s sister were “a complete lie,” (h) complains that petitioner’s mother sold a motorcycle petitioner’s father left to petitioner, and (i) admits all of the men in his family “were more interested in getting money to buy things than they were in continuing to go to school” 143 ; (4) an affidavit dated June 13, 2010 from petitioner’s mother Maria Gonzales in which, in part, she (a) states she spoke with Ann Matthews prior to petitioner’s trial but had only brief telephone conversations with petitioner’s trial counsel, (b) states Raul Gonzales, Jr. used and sold drugs with her late husband, (c) identifies most members of her and her late husband’s families as high school dropouts who used drugs and committed criminal offenses, (d) states that shortly after their first child, Corinna, was born, her late husband was selling marijuana and other drugs and stealing cars to support their family, (e) describes petitioner’s father as unfaithful, frequently absent (due to his numerous incarcerations and arrests), physically abusive, and very controlling toward her, (f) admits she drank alcohol while pregnant with petitioner, sometimes to excess, (g) petitioner’s father often gave petitioner beer to drink when petitioner was a toddler, (h) there were no problems with petitioner’s pregnancy and petitioner’s delivery went fine, (i) describes petitioner’s father as physi-
cally abusive toward their children, (j) describes petitioner’s paternal grandfather as unsympathetic to her and her children when petitioner’s father beat them, (k) asserts petitioner never had any .problems growing up and did fine in elementary school, and (Z) states petitioner earned his GED while in the custody of the Texas Youth Commission 144 ; (5) an affidavit dated June 15, 2010 from petitioner’s sister C.orinna Garza in which she states, in part, that (a) her father was physically abusive, forced their family to move frequently when she was growing up, and kept her mother and the rest of their family isolated from the rest of the world, (b) their parents showed little interest in petitioner when he was growing up, (c) their father used drugs in their presence and left drug paraphernalia lying around their house, (d) their parents frequently argued violently, (e) as he grew up, petitioner spent more time with their father and frequently came home with stories about how he and his father had stolen things and gotten into fights, (f) their home was not safe due to their father’s violent temper, (g) when their father was in jail the last time, their mother let petitioner run wild, and practically abandoned their family, (h) when she was six or seven her father sexually assaulted her, (i) petitioner was angry with her when she reported their father’s sexual assault upon her to their mother, (j) there was no family support for petitioner during times when petitioner attempted to turn his life around, and (k) prior to petitioner’s trial, she ■spoke with both Ann Matthews and petitioner’s attorney and gave them all of the foregoing information 145 ; (6) a quartet *632 of affidavits, all dated June 12, 2010, from petitioner’s maternal aunts Maria Francisca Uribe, petitioner’s maternal cousin Emma Uribe, petitioner’s maternal cousin Viola Martinez, and petitioners maternal aunt Vicenta G. Arvizu, which collectively (a) reiterate the statements of petitioner’s mother and sister describing the controlling and physically, verbally, and emotionally abusive behavior of petitioner’s father toward petitioner, petitioner’s mother, and petitioner’s sister, (b) describe the drug use of petitioner’s father, (c) describe the detrimental impact of petitioner’s father’s conduct on the emotional well-being of petitioner’s mother, (d) admit all of the men and some of the women in their family had problems with criminal conduct, usually arising from their involvement with drugs, (e) describe petitioner’s family as suffering financially to the point they lacked essential food at times because of the cavalier attitude of petitioner’s father toward the rest of his family, (f) described how petitioner’s mother learned, after petitioner’s father died of a drug overdose, that petitioner’s father had a second family, (g) state that petitioner’s father taught petitioner how to sell drugs, burglarize houses, and steal cars, (h) state that petitioner’s father introduced petitioner’s mother to cocaine abuse, (i) state that, after petitioner’s father died, petitioner’s mother could not control petitioner, (j) describe the tension inside petitioner’s household when petitioner was growing up — which resulted from the violent temper and drug abuse of petitioner’s father, and (k) describe petitioner, as abusive ’toward his mother after his father’s death 146 ; (7) a lengthy affidavit dated June 16, 2010 from clinical psychologist Dr. Joann Murphey which, in part, (a) reiterates the same history of physical, emotional, and verbal abuse of petitioner by petitioner’s father recited by petitioner’s mother and sister at petitioner’s trial, albeit in more detail than most previous reports in the record, (b) states petitioner became sexually active at fifteen, (c) states petitioner reported leaving a number of legitimate jobs during the time period 1997-2001 to “hustle/steal,” (d) states petitioner reported he did not intentionally kill officer Riojas but, rather, the gun discharged when he struggled with officer Riojas, (e) summarizes extensive educational, TDCJ, and medical records of petitioner, the autopsy records of petitioner’s father, petitioner’s juvenile criminal records, and petitioner’s IQ and academic achievement test results, all of which Dr. Murphey reviewed, 147 (f) reiterates the assertion that petitioner’s mother abused alcohol during petitioner’s pregnancy, (g) identifies a learning disability in math and other adaptive behavior deficits (including executive functioning and impulse control) consistent with Fetal Alcohol Syndrome displayed by petitioner, (h) suggests additional evaluation of petitioner for Fetal Alcohol Syndrome is warranted, as is evaluation of petitioner for possible medication, (i) concludes petitioner “has not experienced more than a few months without some criminal justice involvement,” (j) describes petitioner as “functioning well in custody,” functioning “appropriately in, custody where external structure is available,” and having a history, which “does not include a pattern of criminal violence before the capital offense for which he is awaiting execution,” (k) states petitioner “is factually unable to *633 plan and carry out even minor crimes effectively, but he does not have a history of violent conduct,” (l) describes petitioner as “a chronic offender” but “not a chronically violent offender,” (m) describes petitioner as possessing “impaired cognitive function, specifically impaired executive functions, originating in the developmental period and prenatally. He is severely impaired in adaptive functioning and historically has never functioned successfully in any capacity in adaptive functioning outside of custodial settings,” and (n) concludes as follows: “circumstances of Manuel’s abusive childhood environment and lack of appropriate paternal guidance, the absence of prior significant violence in his pattern of conduct since the onset of criminal behaviors, and the presence of evident adaptive behavior deficits beyond his control, suggest mitigation of his current sentence.” 148 ; (8) an affidavit dated June 16, 2010 from social worker Gerald L. Byington which (a) details the extensive history of drug abuse and criminal misconduct on the part of members of petitioner’s paternal and maternal families, (b) repeats suggestions of Dr. Murphey that petitioner should be evaluated for the presence of Fetal Alcohol Syndrome, and (e) criticizes the failure of petitioner’s mitigation specialist and trial counsel to develop evidence showing the extensive drug abuse and criminal misconduct engaged in by petitioner’s family members and the disruptive circumstances of petitioner’s childhood 149 ; (9) an affidavit dated June 17, 2010 from Ann Matthews again criticizing the efforts of petitioner’s trial counsel to investigate and develop mitigating evidence and repeating hearsay statements allegedly made to her by others, including petitioner’s mother, regarding their pretrial contact with petitioner’s trial counsel 150 ; and (10) voluminous educational records, juvenile and adult criminal records, along with numerous affidavits from records custodians, 151 which collectively emphasize, among other things (a) the multiple occasions on which petitioner was arrested while in possession of guns, knives, and other weapons, 152 (b) the petitioner’s low average to borderline intellectual functioning did not prevent petitioner from performing adequately academically while in custody of the Texas Youth Commission, 153 and (c) petitioner was diagnosed as a juvenile with ongoing, serious, problems with violations of institutional norms and in need of anger management therapy. 154
The Texas Court of Criminal Appeals summarily dismissed petitioner’s second state habeas corpus application pursuant to state writ-abuse principles. Ex parte Manuel Garza, WR 70-797-02, 2011 WL 4826968 , at *1.
3. Shifting Standards of Review
Despite the voluminous additional documentation and new affidavits petitioner furnished to the state habeas court in support of this aspect of his multi-faceted ineffective assistance claim during petitioner’s second state habeas corpus proceeding *634 (which transformed the petitioner’s Wiggins claim raised in his first state habeas corpus proceeding into an altogether different complaint), respondent does not request dismissal of this portion of petitioner’s supplemented ineffective assistance claim on procedural default grounds. 155
As the foregoing summary demonstrates, this Court has carefully reviewed the voluminous new material petitioner presented to the state habeas court during petitioner’s second state habeas corpus proceeding and concludes that, with the exception of evidence showing petitioner’s mother drank alcohol and may have ingested narcotics during her pregnancy with petitioner (and Dr. Murphey’s opinion that further investigation into whether petitioner may suffer from Fetal Alcohol Syndrome is warranted), petitioner’s “new” purported mitigating evidence offers very little more than the same information about (1) the abusive, criminal, misconduct of the petitioner’s father, (2) the rampant criminal and drug-related behavior of petitioner’s family, and (3) the abused, neglected, and chaotic nature of the petitioner’s childhood detailed in either State Exhibit no. 188 (i.e., petitioner’s TYC file) or in the testimony of petitioner’s mother and sister during the punishment phase of petitioner’s capital murder trial. 156 Likewise, other than suggesting the need for further inquiry into whether petitioner suffers from Fetal Alcohol Syndrome, petitioner’s “new” expert opinions (i.e., those expressed in the June 16, 2010 affidavit of Dr. Murphey and Dr. Ferrell’s December 15, 2009 affidavit) offer very little truly “new” substantive material beyond those expert opinions expressed by Dr. Ferrell and Dr. Allen during their testimony in petitioner’s first state habeas corpus proceeding. 157
Because no state court has ever addressed the merits of an ineffective assistance claim arguing the failure of petitioner’s trial counsel to investigate whether petitioner suffers from Fetal Alcohol Syndrome rose to the level of ineffective assistance, this Court must address the latest version of petitioner’s Wiggins claim de novo. See Porter v. McCollum, 558 U.S. at 38-39, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner’s trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. at 2467 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 , 123 S.Ct. at 2542 (holding the same).
Petitioner has presented this Court with a Wiggins claim that petitioner presented to the state courts in two, entirely separate, state habeas corpus proceedings. In the first of those state habeas proceedings, the state habeas court rejected petitioner’s claim on the merits. Petitioner then supplemented his original Wiggins claim in his *635 second state habeas corpus application with voluminous documents and new evidence (regarding his mother’s abuse of alcohol and possibly drugs while she was pregnant with petitioner) which rendered that claim significantly different from the claim petitioner had presented in his first state habeas proceeding. With regard to the state habeas court’s denial on the merits of petitioner’s initial Wiggins claim during petitioner’s first state habeas corpus proceeding, the deferential standard of review set forth in the AEDPA applies. Because respondent failed to request dismissal on procedural default grounds of the “Fetal Alcohol Syndrome” version of petitioner’s supplemented Wiggins claim contained in petitioner’s Amended Peti

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8704249. Public record. Not legal advice.