Respondents Brief — Amos Wells, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 25-732

IN THE

Supreme Court of the United States

__________________________

AMOS J. WELLS III,

Petitioner,

v.

ERIC GUERRERO, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

_________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

___________________________

RESPONDENT’S BRIEF IN OPPOSITION

___________________________

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JOSH RENO

Deputy Attorney

General for Criminal

Justice

TOMEE M. HEINING

Chief, Criminal Appeals

Division

LUCAS J. WALLACE

Assistant Attorney

General

Counsel of Record

OFFICE OF THE ATTORNEY

GENERAL OF TEXAS

P.O. Box 12548

Austin, Texas 78711

Counsel for Respondent

ii

CAPITAL CASE

QUESTION PRESENTED

Whether the court of appeals properly denied a

certificate of appealability on Wells’s claim that

his trial counsel were ineffective at the

sentencing phase of his capital trial for

presenting expert testimony about his genetic

predisposition to violence as part of a broader

mitigation strategy, where the expert testimony

was unrelated to Wells’s race, trial counsel did

not concede Wells’s future dangerousness, and

Wells suffered no prejudice from trial counsels’

strategic decision to present such testimony?

iii

LIST OF PROCEEDINGS

State v. Wells, No. 1405275R (432nd Dist. Ct. Tarrant

County, Tex.) (convicted November 3, 2016, and

sentenced to death November 18, 2016.)

Wells v. State, 611 S.W.3d 396 (Tex. Crim. App. 2020)

(affirming conviction and death sentence)

Ex parte Wells, No. WR-86,184-01, 2021 WL 5917724

(Tex. Crim. App. Dec. 15, 2021), cert. denied, 142 S. Ct.

2722 (2022) (denying state habeas application)

Wells v. Lumpkin, No. 4:21-CV-01384-O, 2023 WL

7224191 (N.D. Tex. Nov. 2, 2023) (denying federal

habeas petition and denying certificate of appealability)

Wells v. Lumpkin, No. 4:21-CV-01384-O, 2024 WL 69161

(N.D. Tex. Jan. 5, 2024) (denying motion to amend

judgment)

Wells v. Guerrero, No. 24-70002, 2025 WL 2051145 (5th

Cir. July 22, 2025) (denying certificate of appealability)

iv

TABLE OF CONTENTS

QUESTION PRESENTED ............................................ ii

LIST OF PROCEEDINGS ............................................ iii

TABLE OF AUTHORITIES.......................................... vi

INTRODUCTION........................................................... 1

STATEMENT OF THE CASE ....................................... 2

I.

Evidence at guilt-innocence ........................... 2

II.

Evidence at sentencing .................................. 5

A. The prosecution’s evidence .................. 5

B. Wells’s evidence ................................... 9

III.

Course of proceedings .................................. 10

REASONS FOR DENYING THE WRIT ..................... 11

I.

The Petition Presents No Question

Warranting This Court’s Review. ................ 11

II.

The Fifth Circuit Correctly Denied a COA

for Wells’s IATC-Sentencing Claim. ............ 14

A. Reasonable jurists would not debate

that trial counsels’ decision to

v

present evidence of Wells’s genetic

propensity to violence was a

reasonable trial strategy ................... 16

1. Background ............................. 16

2. Trial counsel did not concede

the future dangerousness

special issue ............................ 21

3. Trial counsel did not invite

the jury to sentence Wells

based on an irrelevant an

immutable characteristic........ 26

B. Reasonable jurists could not debate

that Wells failed to show prejudice

as a result of trial counsels’ decision

to present evidence of Wells’s

genetic propensity to violence ........... 31

CONCLUSION ............................................................. 32

vi

TABLE OF AUTHORITIES

CASES

Barefoot v. Estelle,

463 U.S. 880 (1983) ................................................. 12

Barrientes v. Johnson,

221 F.3d 741 (5th Cir. 2000) ................................... 12

Beatty v. Davis,

755 F. App’x 343 (5th Cir. 2018) ............................ 27

Brewer v. Lumpkin,

66 F.4th 558 (5th Cir. 2023) ................................... 30

Brumfield v. Cain,

576 U.S. 305 (2015) ................................................. 13

Buck v. Davis,

580 U.S. 100 (2017) ................................12, 27, 28, 31

Burt v. Titlow,

571 U.S. 12 (2013) ................................................... 15

Chafin v. Chafin,

568 U.S. 165 (2013) ................................................. 22

Clark v. Chappell,

936 F.3d 944 (9th Cir. 2019) ................................... 23

Creech v. Richardson,

59 F.4th 372 (9th Cir. 2023) ................................... 23

vii

Davis v. Kelley,

855 F.3d 833 (8th Cir. 2017) ................................... 27

Dunn v. Reeves,

594 U.S. 731 (2021) ......................................14, 15, 16

Ex parte Wells,

No. WR-86,184-01, 2021 WL 5917724 (Tex. Crim.

App. Dec. 15, 2021) ................................................. 10

Flast v. Cohen,

392 U.S. 83 (1968) ................................................... 22

Florida v. Nixon,

543 U.S. 175 (2004) ..............................................1, 23

Gardner v. Davis,

779 F. App’x 187 (5th Cir. 2019) ............................ 23

Green v. Lumpkin,

860 F. App’x 930 (5th Cir. 2021) ............................ 29

Harrington v. Richter,

562 U.S. 86 (2011) ........................................12, 13, 15

Jackson v. Virginia,

443 U.S. 307 (1979) ................................................. 13

Knowles v. Mirzayance,

556 U.S. 111 (2009) ................................................... 2

Ladd v. Cockrell,

311 F.3d 349 (5th Cir. 2002) ................................... 31

viii

Lambrix v. Sec’y, Fla. Dep’t of Corr.,

851 F.3d 1158 (11th Cir. 2017) ............................... 27

McCoy v. Louisiana,

584 U.S. 414 (2018) ................................................. 23

Miller-El v. Cockrell,

537 U.S. 322 (2003) ............................................11, 12

Miranda v. Arizona,

384 U.S. 436 (1966) ................................................... 4

People v. Adams,

336 P.3d 1223 (Cal. 2014) ....................................... 29

Pope v. Sec’y for Dept. of Corr.,

680 F.3d 1271 (11th Cir. 2012) ............................... 23

Preiser v. Newkirk,

422 U.S. 395 (1975) ................................................. 22

Raby v. Davis,

907 F.3d 880 (5th Cir. 2018) ................................... 27

Richards v. Quarterman,

566 F.3d 553 (5th Cir. 2009) ................................... 21

Rompilla v. Beard,

545 U.S. 374 (2005) ............................................23, 28

Ross v. Moffitt,

417 U.S. 600 (1974) ................................................... 1

ix

Schriro v. Landrigan,

550 U.S. 465 (2007) ................................................. 19

Segundo v. Davis,

831 F.3d 345 (5th Cir. 2016) ................................... 29

Slack v. McDaniel,

529 U.S. 473 (2000) ................................................. 11

State v. Yepez,

483 P.3d 576 (N.M. 2021) ....................................... 29

Strickland v. Washington,

466 U.S. 668 (1984) ......................................... Passim

Trevino v. Davis,

138 S. Ct. 1793 (2018) ............................................. 23

United States v. Duran,

No. 201200440, 2014 WL 341587, at *5 (N.M. Ct.

Crim. App. Jan 31, 2014) ........................................ 23

Wells v. State,

611 S.W.3d 396 (Tex. Crim. App. 2020) ................... 5

Williams v. Taylor,

529 U.S. 362 (2000) ......................................13, 15, 28

Woods v. Thaler,

399 F. App’x 884 (5th Cir. 2010) ............................ 23

x

Woodward v. Epps,

580 F.3d 318 (5th Cir. 2009) ................................... 21

Zant v. Stephens,

462 U.S. 862 (1983) ................................................ 28

STATUTES

28 U.S.C. § 2253(c)(1)(A) .............................................. 11

28 U.S.C. § 2253(c)(2) ................................................... 12

28 U.S.C. § 2254(d) ............................................12, 13, 15

RULES

Sup. Ct. R. 10.............................................................1, 11

1

INTRODUCTION

Wells claims that his trial counsel were

ineffective for presenting expert testimony that he was

genetically predisposed to violence. He argues the

testimony established future dangerousness and invited

the jury to sentence him based on an irrelevant

immutable characteristic. Further, he argues the state

court’s rejection of the claim was based on an

unreasonable application of Strickland v. Washington,

466 U.S. 668 (1984), and Florida v. Nixon, 543 U.S. 175

(2004).

However, Wells points to no reason justifying his

request for the Court to grant review. He does not

identify any relevant circuit split or other reason

amplifying the need to grant his petition. Indeed, Wells

alleges nothing more than that the state court

misapplied a properly stated rule, which is an

insufficient basis for this Court’s review. See Sup. Ct. R.

10; Ross v. Moffitt, 417 U.S. 600, 616–17 (1974) (“This

Court’s review . . . is discretionary and depends on

numerous factors other than the perceived correctness

of the judgment we are asked to review.”).

Moreover, Wells’s claim fails to warrant the Court’s

attention because the Fifth Circuit’s denial of a

certificate of appealability (COA) as to Wells’s ineffective

assistance of trial counsel (IATC) claim was plainly

appropriate. Trial counsel acknowledged the genetics

evidence was double-edged but presented it because they

believed the jury could find it sufficiently mitigating to

warrant a life sentence as it was a factor that

2

contributed to Wells’s violent conduct but was out of his

control. The lower courts properly held that trial

counsels’ informed decision to pursue that strategy was

reasonable and is entitled to a strong measure of

deference. See Knowles v. Mirzayance, 556 U.S. 111, 123

(2009) (Under the “doubly deferential” review applied to

Strickland claims evaluated under AEDPA, deference

was owed to this reasonable, strategic decision of

counsel.). Additionally, as the district court held, trial

counsel were not ineffective because they presented a

substantial mitigation case that centered on the

traumatic nature of Wells’s upbringing.

Accordingly, Wells’s complaints do not warrant

certiorari review.

STATEMENT OF THE CASE

I.

Evidence at guilt-innocence

[U]pset that his pregnant girlfriend, Chanice

Reed, would not answer his calls, [Wells] drove to

Chanice’s house on Pate Street in Fort Worth

where she lived with her grandmother, mother,

and two younger brothers. Chanice was home

with her mother, Annette, and ten-year-old

brother, E.M., when [Wells] arrived. . . .

Around 6:00 p.m., Annette called her aunt,

Joylene Parsons, and asked her to come over.

Parsons described Annette as sounding very

troubled on the phone and in the background she

heard a man yelling at the top of his voice in a

3

“bone-chilling scream.” She also heard Annette

say, “You not going in there.” When Parsons

asked who was there, Annette replied, “Chanice’s

boyfriend,” whom Parsons know was [Wells]. . . .

At 6:09 p.m., Annette called 9-1-1 for help. As the

9-1-1 operator was asking questions, Annette

reported, “He’s going to his truck.” And then the

phone went dead.

...

The first 9-1-1 call reporting the shootings

came in at 6:15 p.m. Responding officers,

firefighters, and paramedics arrived within

minutes. Chanice had been shot four times. . . .

Paramedics were not able to save her. Chanice’s

unborn baby also did not survive. Post-mortem

testing revealed that [Wells] was the biological

father.

Annette had been shot two times. . . .

E.M. had been shot four times. His dead body

was found in a hallway inside the house. . . .

. . . [Wells] called his former girlfriend, Valricia

Brooks, with whom he shared a daughter, and

told her what had happened. At the time of the

call, Brooks was walking in a park with her

friend, Brittany Minor, who overhead the

conversation. [Wells] told Brooks that he had shot

and killed Chanice, Annette, and E.M. and that

he was thinking about leaving, but he only had

4

one bullet left in his gun and ninety-seven miles

remaining before running out of gas. Minor

described [Wells] as sounding “distraught . . .

talking fast, frantic, remorseful, [and] crying. . . .”

At approximately 7:30 p.m., [Wells] walked

into the Forest Hills Police Department lobby

and, in a rambling and incoherent manner,

blurted, “Put me in jail; kill me.” Noting that

[Wells] was a “sweaty, big guy, muscular, [and]

had a dazed kind of spacey look on him,” Sergeant

Christopher Hebert handcuffed him as a safety

precaution. He described [Wells’s] demeanor as

being “like a calm storm . . . calm demeanor but

aggressive,” and “look[ing] like he could [ ] explode

any second. . . .”

Fort Worth officers transported [Wells] to a

Fort Worth police station where Detectives

[Matthew] Barron and Tim O’Brien attempted to

interview him around 8:35 p.m. Without reading

Miranda[ 1] warnings, Barron began by asking

[Wells] routine questions such as his name,

birthdate, and address, all of which [Wells]

provided. He then asked [Wells] questions such

as: what he had done that day; why he went to the

Forest Hills Station; whether he had been on Pate

Street; and what had happened on Pate Street.

[Wells] denied being on Pate Street that day.

When Barron asked [Wells] to tell him what had

happened on Pate Street, [Wells] stated

1

Miranda v. Arizona, 384 U.S. 436 (1966)

5

repeatedly, “You tell me what happened.” After

forty-one minutes of questioning and an eightminute

break

without

obtaining

useful

information, the detectives stopped [Wells’s]

interview and focused on interviewing other

people who had been asked to provide statements

at the station. By 1:00 a.m. on July 2, Barron

determined that he had probable cause to arrest

[Wells] and search his residence. Barron obtained

a search warrant for [Wells’s] residence at 1:55

a.m.

...

After the search, Barron obtained an arrest

warrant at 4:00 a.m. Barron returned to [Wells’s]

interview room at 4:20 a.m. and informed him

that he was being charged with capital murder.

Barron read [Wells] his Miranda rights, which

[Wells] waived. Barron then re-interviewed

[Wells]. [Wells] broke down crying and eventually

confessed in detail to the murders of Chanice,

Annette, and E.M.

Wells v. State, 611 S.W.3d 396, 402–05 (Tex. Crim. App.

2020) (footnotes omitted).

II.

Evidence at sentencing

A. The prosecution’s evidence

. . . [T]he State’s punishment case began with

evidence of [Wells’s] history of violence against

6

Brooks. . . . On January 5, 2008, Brooks and

[Wells] got into an argument when [Wells] wanted

to borrow her father’s truck. He became violent,

and Brooks locked him out of her apartment.

[Wells] kicked in the front door, punched and hit

Brooks, kicked glass mirrors in the bedroom, and

threw a chair out the window.

. . . When police responded, Brooks was

“crying, agitated, afraid and nervous.” Her ear

was swollen, and she had “knots” on the back of

her head from multiple punches. Keith asked

Brooks a series of questions from what is referred

to as a “family violence packet,” a certain set of

questions intended to document the investigation.

Brooks responded that: [Wells] had been violent

toward her in the past; [Wells] had access to

firearms or weapons; she had been seriously

injured by [Wells]; things had recently gotten

worse, more frequent, or more severe; [Wells] had

choked her; [Wells] was unusually jealous or

possessive or considered her his property; and

[Wells] had been violent when she talked about

leaving him. . . .

...

Brooks testified that [Wells’s] pattern of abuse

repeated itself during their relationship. She

described another assault that occurred on the

night of November 28, 2010, when Brooks was

visiting [Wells’s] aunt, Letrinda Lee. At the time,

Brooks and [Wells] had broken up. Although

7

Brooks did not specifically recall what caused that

particular breakup, she explained that they

usually separated due to [Wells’s] cheating and

assaults against her. While Brooks was with

Letrinda, [Wells] walked into Letrinda’s house,

grabbed Brooks from behind, and choked her.

[Wells] had the crook of his arm around Brooks’s

neck, and he dragged her outside. She blacked out

and remembered waking up on the ground to

[Wells] beating her in the face. He “just stopped”

hitting her, and then he cried and said he was

sorry, which was typical of him. The next thing

Brooks remembered is that she was on the ground

again in a field next to Letrinda’s house, and

[Wells] was kicking her in the face with his work

boots. Brooks went to the hospital with injuries to

her mouth and lip and bruising to her arms and

shoulders.

...

. . . Tiffany Rose, a friend and former co-worker of

Chanice, testified that she was concerned after

seeing bruises and scratches on Chanice, and

there was a time when Chanice missed work

because she had a black eye. Rose also testified,

over [Wells’s] objection, that there was a situation

when she was called by Chanice, who was upset.

Chanice and [Wells] had gotten into an argument,

and, when Chanice was brushing her teeth,

[Wells] slapped her. Chanice asked Rose not to

call the police over this incident because Chanice

did not want [Wells] to go to jail. Rose encouraged

8

Chanice to end the relationship with [Wells], but

Chanice “kept going back.”

...

. . . The State’s last witness in its punishment

case-in-chief was Dallas Theiss, an inmate who

was serving a jail sentence at the Tarrant County

Jail during the same time period that [Wells] was

awaiting trial in the instant case. Theiss testified

about an incident when he was walking to the

jail’s dayroom. His path was blocked by [Wells],

who was seated on a bench and had his feet

propped up onto another table. Theiss stepped

over [Wells’s] legs. [Wells] told Theiss that he

needed to say “excuse me,” but Theiss felt it

unnecessary to apologize because [Wells] was at

fault for having his legs in the way. [Wells]

confronted Theiss and asked “do you want to do

this in my cell or your cell?” Later that day, Theiss

was asked to speak with [Wells] in a third party’s

cell. Theiss sat in the cell for about five minutes

thinking that he and [Wells] would simply “talk it

out,” when [Wells] ran in and started swinging.

The altercation lasted for about thirty seconds.

[Wells] had “busted [Theiss’s] eye open” and his

“jaw was messed up bad,” and Theiss was

eventually taken to the hospital.

Wells, 611 S.W.3d at 419–21 (footnotes omitted).

9

B. Wells’s evidence

Trial counsel for [Wells] presented extensive

testimony from [Wells’s] parents, family, and

mental health experts showing that: (1) [Wells]

endured a violent, unstable, emotionally abusive

family life during his upbringing; (2) [Wells] was

diagnosed with Attention Deficit Hyperactivity

Disorder (“ADHD”) as a child, for which he was

prescribed medication; (3) [Wells’s] mother

suffered from personality disorders that left her

incapable of distinguishing right from wrong; and

(4) [Wells’s] biological father displayed a lack of

personal and financial responsibility. The defense

also presented extensive expert testimony

showing that [Wells] was genetically predisposed

to violence. [Wells’s] trial counsel contended that

this made [Wells] less morally culpable for his

own acts of violence.

Finally, [Wells] himself took the stand during

the punishment phase of trial and testified that:

(1) he had participated in counseling sessions to

address his violent acts toward Brooks and Reed;

(2) he had no recollection of shooting any of his

victims; (3) he had a long history of difficulty

controlling his emotions, particularly when

angry; and (4) he was sincerely remorseful for his

offenses.

10

Pet. App. 20a–21a. 2

III.

Course of proceedings

Wells was convicted and sentenced to death for

capital murder. ROA.5134, 5810, 5853, 5860–61. 3 The

Texas Court of Criminal Appeals (CCA) affirmed Wells’s

conviction and sentence. Wells, 611 S.W.3d at 396. Wells

did not seek certiorari review. Wells filed a 414-page

state application for a writ of habeas corpus.

ROA.16824–7257. The trial court entered findings of

fact and conclusions of law recommending the denial of

relief. ROA.17721–854, 17968–69. With the exception of

one finding, the CCA adopted the trial court’s findings

and conclusions, and it denied habeas relief based on the

adopted findings and its own review. Ex parte Wells, No.

WR-86,184-01, 2021 WL 5917724 (Tex. Crim. App. Dec.

15, 2021), cert. denied, 142 S. Ct. 2722 (2022).

Wells also filed an amended federal habeas petition

and a motion for a stay. ROA.517–658, 788-94. The

district court denied the petition and the motion. Pet.

App. 13a–82a; ROA.1235. Wells then filed a motion to

alter or amend judgment, ROA.1236–74, which the

district court also denied, Pet. App. 83a–99a.

Wells filed a motion for a COA in the Fifth Circuit,

which the court denied on all claims. Pet. App. 1a–12a.

He then filed a petition for rehearing, which the Fifth

“Pet. App.” refers to Wells’s appendix attached to his

petition for certiorari.

2

3

“ROA” refers to the record on appeal filed in the court below.

11

Circuit also denied. Pet. App. 100a. Wells now seeks

certiorari review of the Fifth Circuit’s decision as it

relates to his IATC-sentencing claim.

REASONS FOR DENYING THE WRIT

I.

The Petition Presents No

Warranting This Court’s Review.

Question

The question that Wells presents for review does not

warrant the Court’s attention. Supreme Court Rule 10

provides that review on writ of certiorari is not a matter

of right, but of judicial discretion, and will be granted

only for “compelling reasons.” Where a petitioner asserts

only factual errors or that a properly stated rule of law

was misapplied, certiorari review is “rarely granted.”

Sup. Ct. R. 10. Wells identifies no conflict among the

courts of appeals, no departure from accepted and usual

judicial standards, and no important question of federal

law that warrants this Court’s intervention in a factbound, COA denial under AEDPA.

Furthermore, as explained infra, the Fifth Circuit

did not misapply this Court’s authority because Wells

failed to demonstrate that reasonable jurists could

debate the district court’s denial of his claim. There is no

automatic entitlement to appeal in federal habeas

corpus. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003).

As a jurisdictional prerequisite to obtaining appellate

review, a petitioner is required to first obtain a COA. 28

U.S.C. § 2253(c)(1)(A); Miller-El, 537 U.S. at 335–36;

Slack v. McDaniel, 529 U.S. 473, 483 (2000). In

determining whether to issue a COA, a court must

12

consider whether the petitioner “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

The COA standard:

. . . is not coextensive with a merits analysis. At

the COA stage, the only question is whether the

applicant has shown that “jurists of reason could

disagree with the district court’s resolution of his

constitutional claims or that jurists could

conclude the issues presented are adequate to

deserve encouragement to proceed further.”

Buck v. Davis, 580 U.S. 100, 115 (2017) (quoting MillerEl, 537 U.S. at 327); see also Slack, 529 U.S. at 484.

Nevertheless, “the determination of whether a COA

should issue must be made by viewing the petitioner’s

arguments through the lens of the deferential scheme

laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson,

221 F.3d 741, 772 (5th Cir. 2000); see also Miller-El, 537

U.S. at 336 (“We look to the District Court’s application

of AEDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists

of reason.”). Under § 2254(d), a federal court may not

issue a writ of habeas corpus for a defendant convicted

under a state judgment unless the adjudication of the

relevant constitutional claim by the state court, (1) “‘was

contrary to’ federal law then clearly established in the

holdings of” the Supreme Court; or (2) “‘involved an

unreasonable application of’” clearly established

Supreme Court precedent; or (3) “‘was based on an

unreasonable determination of the facts’ in light of the

record before the state court.” Harrington v. Richter, 562

13

U.S. 86, 100–01 (2011) (quoting Williams v. Taylor, 529

U.S. 362 (2000)).

The Court emphasized § 2254(d)’s demanding

standard, stating:

[u]nder § 2254(d), a habeas court must determine

what arguments or theories supported, or . . .

could have supported, the state court’s decision;

and then it must ask whether it is possible

fairminded jurists could disagree that those

arguments or theories are inconsistent with the

holding in a prior decision of this Court. . . . It

bears repeating that even a strong case for relief

does not mean the state court’s contrary

conclusion was unreasonable.

Richter, 562 U.S. at 102 (emphasis added); Brumfield v.

Cain, 576 U.S. 305, 314 (2015) (if “‘[r]easonable minds

reviewing the record might disagree’ about the finding

in question, ‘on habeas review that does not suffice to

supersede the trial court’s . . . determination.’”).

The Court has noted that “[i]f this standard is

difficult to meet, that is because it was meant to be.”

Richter, 562 U.S. at 102. “Section 2254(d) reflects the

view that habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’ not

a substitute for ordinary error correction through

appeal.” Id. at 102–03 (quoting Jackson v. Virginia, 443

U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in

judgment)).

14

Here, Wells’s petition presents no compelling

reasons, important questions of law, or genuine conflicts

among the circuit courts to justify this Court’s exercise

of its certiorari jurisdiction and certiorari should be

denied.

II.

The Fifth Circuit Correctly Denied a COA

for Wells’s IATC-Sentencing Claim.

In denying a COA on Wells’s IATC-sentencing claim,

the Fifth Circuit applied this Court’s familiar Strickland

standard governing IATC claims and concluded that

reasonable jurists would not debate the district court’s

denial of Wells’s claim that trial counsel was ineffective

“by presenting expert testimony that [Wells] was

genetically predisposed to violence at the penalty phase”

because “[w]hether to present such evidence lies within

the heartland of ‘strategic decisions’ that appellate

courts cannot second-guess unless the defendant rebuts

their ‘strong presumption of reasonableness.’” Pet. App.

5a–7a (citing Dunn v. Reeves, 594 U.S. 731, 739 (2021)).

Nevertheless, Wells now argues that the Fifth

Circuit’s denial of a COA conflicts with this Court’s

precedent because “[c]ounsel’s concession of future

dangerousness constitutes deficient performance,” and

the “[p]resentation of the discredited violence-genetics

theory unquestionable prejudiced [Wells].” Pet. Cert. 14,

25. However, the Fifth Circuit correctly denied Wells a

COA regarding his IATC-sentencing claim, and the Fifth

Circuit’s determination complies with this Court’s

precedent.

15

Claims of ineffective assistance of counsel are

analyzed under Strickland, 466 U.S. at 687. Wells’s

claim that he was denied constitutionally effective

assistance requires him to affirmatively prove counsel

rendered deficient performance and their actions

resulted in actual prejudice. Id. A failure to prove either

deficient performance or prejudice will defeat an

ineffectiveness claim. Id.

In applying AEDPA deference to an ineffectiveness

claim, the “pivotal question is whether the state court’s

application of the Strickland standard was

unreasonable.” Richter, 562 U.S. at 101. “This is

different from asking whether defense counsel’s

performance fell below Strickland’s standard[,] because

“‘an unreasonable application of federal law is different

from an incorrect application of federal law.’” Id.

(quoting Williams, 529 U.S. at 410) (emphasis in

original). Satisfying Strickland’s highly deferential

standard is no small task, and “[e]stablishing that a

state court’s application of Strickland was unreasonable

under [28 U.S.C.] § 2254(d) is all the more difficult.” Id.

at 105. Indeed, federal courts are required to “use a

doubly deferential standard of review that gives both the

state court and the defense attorney the benefit of the

doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (citation

omitted); Dunn, 594 U.S. at 739 (deference is owed “to

both [Wells’s] counsel and the state court[,]” and relief

may be granted only if counsel “took an approach that

no competent lawyer would have chosen.”) (citing

Titlow, 571 U.S. at 23–24). “Or, in more concrete terms,

a federal court may grant relief only if every fairminded

jurist would agree that every reasonable lawyer would

16

have made a different decision.” Dunn, 594 U.S. at 739–

40 (cleaned up).

A. Reasonable jurists would not debate that

trial counsels’ decision to present evidence

of Wells’s genetic propensity to violence

was a reasonable trial strategy.

Wells first argues that “[c]ounsel’s concession of

future dangerousness constitutes deficient performance”

because the “expert testimony that trial counsel elicited

affirmatively established future dangerousness, thereby

relieving the prosecution of its burden.” Pet. Cert. 14, 17.

Wells also argues that counsel’s presentation of that

evidence “constituted deficient performance” because “it

invited the jury to sentence petitioner to death based on

an irrelevant immutable characteristic.” Pet. Cert. 23.

But Wells failed to overcome the doubly deferential

standard afforded to trial counsel’s strategic decisions

and the state court’s rejection of this claim, and he fails

to show the district court’s rejection of the claim is

debatable among jurists of reason.

1. Background

Trial counsel developed a trial strategy to show, inter

alia, Wells’s violence was due to factors beyond his

control, including his genetics. ROA.6124. As indicated

in a Memo of Understanding prepared by trial counsel,

their investigation included genetic testing. ROA.15978;

see ROA.15980–81, 16006 (defense expert Dr. Jolie

Brams’s letter noting the defense team had an extensive

consultation “with a well-respected expert in behavioral

17

genetics”). The genetic testing revealed Wells “has a lowactivity variant of the Monoamine Oxidase A (MAOA)

gene.” ROA.6129. A person with this genetic variant has

low levels of serotonin to the brain and “an increased

risk of being a violent adult if that person ha[d] an

adverse or traumatic childhood.” ROA.6129. Trial

counsel retained Dr. William Bernet, a forensic

psychiatrist, to testify regarding this phenomenon.

ROA.6129.

The “general consensus” of the defense team’s expert

was that Wells had the genetic variant and a semitraumatic upbringing, which together could cause Wells

to exhibit violent outbursts. ROA.15978. Trial counsel

acknowledged that such evidence “could very well lead

to and support the State’s contention that there [was] a

probability of [Wells] committing acts of violence in the

future[.]” ROA.15978. But since neither Wells’s genetic

makeup nor his childhood environment were within

Wells’s control, trial counsel believed the evidence could

be sufficiently mitigating and could result in the jury

imposing a life sentence instead of death. ROA.15978.

Dr. Bernet explained that he had studied and written

about behavioral genetics and had testified several

times regarding the topic. ROA.12863–64. He reviewed

the genetic testing results of Wells, his mother Twyla

Franklin, and his grandmother Carolyn Russell, as well

as the mitigation specialist’s and other experts’ reports

regarding Wells. ROA.12865–66; Sealed ECF No. 78-7

(Dr. Bernet’s report). Dr. Bernet explained that the

theory regarding the correlation between the lowactivity variant of the MAOA gene combined with

18

childhood maltreatment increased the risk of violent

behavior was peer reviewed and scientifically valid.

ROA.12867–88. Dr. Bernet explained to the jury that a

2002 study showed an individual who had a low-activity

MAOA gene and suffered maltreatment as a child was

at a higher risk for exhibiting violent behavior. ROA.

13017, 13031–44, 13056–58. Dr. Bernet acknowledged

some studies did not replicate those findings, but metaanalysis of the research showed an association between

the genetic variant and an increased risk for violence.

ROA.12882–83, 13063–65.

Dr. Bernet said Wells had a low-activity variant of

the MAOA gene. ROA.13069. And evidence developed by

the defense team showed Wells suffered maltreatment

as a child, e.g., witnessing domestic violence and

abandonment by his father. ROA.13072–73. Notably,

Wells’s violent outbursts began at a young age.

ROA.13075. Dr. Bernet concluded Wells’s genetic

makeup and history of maltreatment as a child were risk

factors that increased the probability he would act in a

maladaptive manner. ROA.13076.

On cross-examination, Dr. Bernet testified that these

risk factors for violence were still present with Wells,

which “may make it harder for him to control his anger

than it is for other people in the future.” ROA.13077. But

those risk factors did not “mean it’s more likely than not

that he’s going to be violent in the future; it just means

he’s more at risk than a regular person.” ROA.13077.

During closing argument, trial counsel argued the

scientific evidence showed Wells’s brain did not function

19

normally. ROA.13770–71. Counsel suggested the

evidence gave the jury a reason to pause and consider

whether they should sentence Wells to death for actions

caused by things he could not control—his genes, brain,

and environment. ROA.13771. Counsel told the jury

Wells’s upbringing and genetics “ought to be sufficiently

mitigating.” ROA.13784–85.

Wells raised a claim in his state habeas application

alleging trial counsel were ineffective for presenting Dr.

Bernet’s testimony. ROA.16918–48. In their affidavits,

trial counsel explained they thoroughly investigated

Wells’s background, including his school and work

history, interpersonal relationships, and genetics. 4

Sealed ECF No. 78-13 at 2696–97, 2829–30. Trial

counsel Ray explained his view that a mitigation defense

based on genetics is similar to one based on mental

illness, a history of sexual abuse, or a negative childhood

environment, in that those factors are not under a

defendant’s control. Sealed ECF No. 78-13 at 2696.

The state habeas court rejected Wells’s claim, finding

“Dr. Bernet’s testimony never attached [a] racial

connotation to the low-activity MAOA gene, nor did he

testify or imply to the jury that [Wells’s] race

predisposed him to future violence or that [Wells] should

be executed because of his race.” ROA.17793–94. The

court also found Dr. Bernet acknowledged some studies

The state habeas court, presided over by the same judge

who presided over trial, found trial counsel’s affidavits credible.

ROA.17736. Consequently, AEDPA’s presumption of correctness is

especially strong. See Schriro v. Landrigan, 550 U.S. 465, 476

(2007).

4

20

did not support the conclusion that a person with the

low-activity MAOA gene variant and who suffered

maltreatment as a child was at a higher risk to exhibit

violent behavior. ROA.17793. Moreover, the court found

Dr. Bernet told the jury that Wells’s genetics and

childhood upbringing did not mean he was more likely

than not to be violent, only that he was at a higher risk

than others. ROA.17793. Moreover, there was other

overwhelming

evidence

of

Wells’s

future

dangerousness—the facts surrounding the murders, his

abuse of Brooks and Chanice, and his violence while in

jail. ROA.17794. Indeed, Wells admitted a long history

of anger and lacking control of himself. ROA.17794.

Additionally, trial counsel presented numerous lay and

expert witnesses “to build the strongest mitigation case

possible based on the evidence they had.” ROA.17795.

The state habeas court concluded trial counsel

conducted a reasonable mitigation investigation.

ROA.17795. The court recognized that defense counsel

in capital cases are often faced with double-edged

evidence that could be both aggravating and mitigating.

ROA.17796–97. Wells’s claim failed because Wells did

not rebut the presumption that trial counsels’ “carefully

considered decision to present the genetic evidence” was

within the range of reasonable professional assistance.

ROA.17797. And even if counsel were deficient, Wells

could not show prejudice in light of the “strong evidence”

of his future dangerousness. ROA.17797–98. As

discussed below, Wells failed to overcome either

presumption that his trial counsel performed

reasonably, or the deference afforded to the state court’s

adjudication of his claim.

21

2. Trial counsel did not concede the future

dangerousness special issue.

Wells argues that because “Dr. Bernet testified that

[Wells] was genetically predisposed to violence because

his defective MAOA gene made it more difficult for him

to control his anger,” trial counsel “therefore

unquestionably conceded future dangerousness.” Pet.

Cert. 17, 19. However, Wells’s claim fails for several

reasons.

First, Well’s claim amounts to nothing more than a

disagreement with trial counsel’s strategic decision

making. Trial counsel’s strategy to present Dr. Bernet’s

concededly double-edged testimony was based on an

extensive mitigation investigation, ROA.17795–96, and

is the type of reasoned strategic decision that is beyond

a reviewing court’s purview to second-guess. See

Woodward v. Epps, 580 F.3d 318, 329 (5th Cir. 2009).

The Memo of Understanding prepared by trial counsel

explicitly reflects their strategic reasoning, including

their understanding that the genetic evidence was

double-edged. ROA.15978. Thus, the Fifth Circuit and

district court properly held trial counsel’s conscious and

informed decision to present Dr. Bernet’s testimony

cannot be the basis for relief. Pet. App. 6a–7a, 56a–58a,

91a–92a; see Richards v. Quarterman, 566 F.3d 553, 564

(5th Cir. 2009).

Second, the district court correctly found trial

counsel did not concede the future dangerousness

special issue by presenting Dr. Bernet’s testimony. Pet.

22

App. 56a–58a, 90a. Again Dr. Bernet testified that the

MAOA genetic variant did not make Wells more likely

than not to be violent. ROA.13077. Consequently, Wells

fails even to show trial counsel conceded his future

dangerousness. 5 Furthermore, because Wells’s trial

counsel did not concede future dangerousness, his

petition calls for an advisory opinion because an opinion

declaring “counsel can not reasonably concede future

dangerousness” would not apply to the facts of this case.

See Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“Federal

courts may not decide questions that cannot affect the

rights of litigants in the case before them or give

opinions advising what the law would be upon a

hypothetical set of facts.”) (quotation marks and citation

omitted); Preiser v. Newkirk, 422 U.S. 395, 401 (1975)

(same). As a result, Wells’s petition should be denied.

See Flast v. Cohen, 392 U.S. 83, 95 (1968) (no justiciable

controversy is presented “when the parties are asking

for an advisory opinion”).

Wells also argues that Dr. Bernet’s testimony amounted to

a concession of the future dangerousness special issue because he

testified that “people like [Wells]—those with the violence gene and

adverse childhood experiences—are ‘four and a half times’ more

likely to commit violent acts,” and that the “upshot of that evidence

was that 32% of people with a similar profile to [Wells] carry out

violent crimes in the future. Pet. Cert. 18 (emphasis omitted). But

Dr. Bernet subsequently explained that these statistics were “a very

rough estimate,” and that “this type of research varies from study

to study, but this is an example of the kind of results they get from

this kind of research.” ROA.13057–58. Dr. Bernet testified that

these results were from one experiment, ROA.13056–57, but as

explained supra, he also acknowledged that some studies do not

support these conclusions. ROA.12881–82.

5

23

Third, even if trial counsel outright conceded Wells’s

future dangerousness, he would still fail to show counsel

were ineffective. Indeed, trial counsel can reasonably

decide that a “concession of guilt” is the best strategy to

avoid the death penalty. McCoy v. Louisiana, 584 U.S.

414, 422 (2018). And caselaw is replete with

ineffectiveness allegations that trial counsel did not

present various types of double-edged mitigation

evidence, including evidence of predisposition to

violence. 6

Wells focuses much of his briefing on Nixon, 543 U.S.

175, suggesting that Nixon holds that trial counsel may

concede an “issue on which the prosecution bears the

burden . . . only to the extent that the strategy may

reasonably yield commensurate advantages with

respect to other aspects of the adversarial process.” Pet.

Cert. 16 (emphasis omitted). He argues that “the district

court, and by extension the Fifth Circuit, failed to

recognize the violence-genetics evidence” amounted to a

E.g., Trevino v. Davis, 138 S. Ct. 1793, 1794 (2018)

(Sotomayor, J., dissenting from the denial of certiorari) (“In focusing

on what it considered to be the ‘double-edged’ nature of the new

evidence, the Fifth Circuit majority failed to view the prejudice

inquiry holistically.”); Rompilla v. Beard, 545 U.S. 374, 391–92

(2005); Creech v. Richardson, 59 F.4th 372, 388–89 (9th Cir. 2023);

Clark v. Chappell, 936 F.3d 944, 987–88 (9th Cir. 2019); Gardner v.

Davis, 779 F. App’x 187, 191 (5th Cir. 2019); Pope v. Sec'y for Dep't

of Corr., 680 F.3d 1271, 1294 (11th Cir. 2012); Woods v. Thaler, 399

F. App’x 884, 896–97 (5th Cir. 2010); United States v. Duran, No.

201200440, 2014 WL 341587, at *5 (N.M. Ct. Crim. App. Jan 31,

2014) (addressing claim that trial counsel were ineffective for not

presenting evidence regarding the low-activity MAOA genetic

variant).

6

24

concession of future dangerousness because “the courts

failed to analyze the reasonableness of counsel’s

concession under Nixon’s framework.” Pet. Cert. 29.

However, Wells’s reading of Nixon is misguided. 543

U.S. at 191–92 (“[I]f counsel’s strategy, given the

evidence bearing on the defendant’s guilt, satisfies the

Strickland standard, that is the end of the matter[.]”).

And in any event, Wells’s assertion that the genetics

testimony “held no possible strategic advantage for

[him]” is entirely based on hindsight. Pet. Cert. 20. As

discussed above, trial counsel presented the genetics

evidence with the express purpose of obtaining a

favorable verdict on the mitigation special issue.

ROA.13784–85, 17797. That the jury found insufficient

mitigating circumstances to warrant a life sentence is

not proof trial counsel performed deficiently. In this

respect, the state court’s rejection of Wells’s IATC claim

is entirely consistent with Supreme Court precedent.

See Strickland, 466 U.S. at 689.

Nixon aside, Wells fails to show the district court’s

rejection of his claim is debatable. Indeed, the district

court correctly found trial counsel did not concede the

future dangerousness issue. Pet. App. 56a, 89a–90a. The

district court also emphasized the arduous task given to

trial counsel considering the vicious nature of the

murders and the limitations Wells imposed on trial

counsel, e.g., not to present evidence Wells was sexually

abused. Pet. App. 58a. The district court’s rejection of

this claim is simply not debatable.

Importantly, the genetics evidence was one piece of a

comprehensive mitigation presentation. As the district

25

court explained, “trial counsel rendered objectively

reasonable assistance to [Wells] in presenting a

comprehensive mitigation case.” Pet. App. 59a. The

mitigation presentation was supported by a thorough

investigation with a forensic psychologist, a

psychologist, a neuroscientist, and a mitigation

specialist. ROA.15343 (Dr. Brams was retained to

investigate and testify about Wells’s “traumatic and

adverse childhood experiences”), 15931 (Dr. Antoinette

McGarrahan

was

retained

to

conduct

a

neuropsychological

evaluation

of

Wells);

see

ROA.15933–55 (trial counsel Ray’s time records).

Trial counsel obtained voluminous records regarding

Wells’s schooling and mental health treatment as well

as medical and mental health records regarding his

family members. ROA.14589, 14593–94, 14604–06,

14754–59; Sealed ECF Nos. 78-3, 78-4. The defense team

conducted numerous interviews with Wells’s family

during which they learned of, among other things,

domestic violence between Wells’s parents, sexual abuse

Wells’s mother and aunt suffered, Wells’s mother’s and

grandmother’s mental health struggles, and Wells’s

angry outbursts that began when he was very young.

ROA.15982–91.

Dr. Brams investigated numerous aspects of Wells’s

family and upbringing, including the impacts of Wells’s

mother’s

“serious

mental

health

difficulties,”

abandonment of Wells by his father, Wells’s exposure to

domestic violence, and the stress Wells said he

experienced leading up to the murders. ROA.16005–09.

Notably, Dr. McGarrahan evaluated Wells and learned

26

Wells had no memory of domestic violence between his

parents, and Wells denied experiencing abuse or neglect

while growing up. ROA.15968–70 (Dr. McGarrahan’s

findings); Sealed ECF Nos. 78-5, 78-6 (Dr. McGarrahan’s

neuropsychological reports). Dr. McGarrahan’s testing

showed Wells was defensive about his shortcomings, had

severe impairment in depression and hostility, believed

his negative circumstances were not his fault, was

resentful and extremely suspicious, and was resistant to

admitting the need for personal change. ROA.15968–70.

Trial counsels’ mitigation presentation included

extensive evidence about the history of mental health

difficulties in Wells’s family. Pet. App. 20a–21a, 58a–

61a; ROA.6124–37. The jury had before it extensive and

comprehensive evidence regarding Wells’s upbringing.

Wells’s complaint about trial counsels’ decision to

present the genetics testimony is nothing more than an

exercise in hindsight and disagreement with trial

counsels’ strategy. 7 That is plainly insufficient to

demonstrate trial counsel performed deficiently. See

Strickland, 466 U.S. at 689.

3. Trial counsel did not invite the jury to

sentence Wells based on an irrelevant an

immutable characteristic.

Wells also argues the genetics testimony minimized the

mitigating evidence regarding his upbringing because Dr. Bernet

said that “under the definition of childhood maltreatment in a

prominent study of the violence gene, [Wells] did not experience any

maltreatment at all.” Pet. Cert. 22 (emphasis omitted). However,

Wells gives no reason to conclude the jury disregarded the extensive

expert and lay witness testimony regarding Wells’s background.

7

27

Wells next argues that trial counsels’ presentation of

the genetics evidence “invited the jury to sentence

[Wells] to death based on an irrelevant immutable

characteristic.” Pet. Cert. 23. He also argues that the

science underlying the testimony was unreliable, and he

suggests the testimony appealed to racial stereotypes.

Pet. Cert. 24–25. But none of Wells’s complaints show

that that the district court’s rejection of this claim is

debatable.

First, as the state court found, “Dr. Bernet’s

testimony never attached [a] racial connotation to the

low-activity MAOA gene[.]” ROA.17793–94. Wells has

done nothing to rebut the state court finding other than

to repeatedly make the false assertion to the district

court that Dr. Bernet told the jury Wells had the

“Warrior Gene,” e.g., ROA.592, 594–96, 622, an

assertion he does not repeat in this Court or the lower

court. Indeed, Wells has never cited to trial testimony

that suggested his future dangerousness was tied to his

race. For this, alone, Wells’s reliance on Buck, 580 U.S.

at 124, is baseless. See Raby v. Davis, 907 F.3d 880, 884–

85 (5th Cir. 2018); Beatty v. Davis, 755 F. App’x 343,

349–50 (5th Cir. 2018); Davis v. Kelley, 855 F.3d 833, 836

(8th Cir. 2017) (“Buck focused on the race-based nature

of the case and its far[-]reaching impact on the

community by the prospect of a defendant having been

sentenced to death because of his race. These

extraordinary facts have no application to the present

case.”); Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d

1158, 1172 (11th Cir. 2017). Notably, Wells

acknowledges that “no party in this case explicitly

28

pressed any racial stereotype in the manner of Buck.

Pet. Cert. 25.

Second, Buck does not stand for the proposition that

a jury cannot consider any immutable characteristic of a

defendant. See id. at 884. If that were so, it would be per

se unreasonable for trial counsel to present mitigating

evidence regarding a plethora of conditions, e.g., brain

damage, mental illness, personality disorder, or

developmental disorders, that may aggravate a jury’s

view of a defendant’s dangerousness. And that is simply

not the law. 8 For the same reason, Wells’s argument

that presentation of the genetics testimony was contrary

to this Court’s precedent, e.g., Zant v. Stephens, 462 U.S.

862, 885 (1983), is simply wrong. This Court in Zant did

not prohibit the presentation of evidence of mental

illness as mitigating evidence. Id. at 885. Indeed, this

Court recognized that evidence of mental illness is

mitigating and should not be submitted to a jury as a

statutory aggravating circumstance. Id. And again, this

Court in Buck found intolerable the “pernicious”

injection of race into the justice system, 580 U.S. at 124,

and that did not occur in Wells’s case. The state court’s

decision, therefore, could not have been an unreasonable

application of this Court’s precedent.

Wells also argues that trial counsel were ineffective

for presenting Dr. Bernet’s testimony because “the

See, e.g., Rompilla, 545 U.S. at 391–92 (finding trial counsel

were ineffective for not discovering and presenting evidence the

petitioner may have had, inter alia, schizophrenia, and noting

experts found his capacity to conform his conduct to the law was

substantially impaired); Williams, 529 U.S. at 398.

8

29

violence-genetics theory had been thoroughly debunked”

and “courts have already long concluded that this sort of

evidence was unreliable.” Pet. Cert. 24. But as the

district court explained, Wells failed to show the

testimony was inaccurate or unreliable. Pet. App. 39a;

see State v. Yepez, 483 P.3d 576, 584 (N.M. 2021)

(holding the trial court did not abuse its discretion in

concluding testimony about the low-activity MAOA

variant was reliable); see also People v. Adams, 336 P.3d

1223, 1241–42 (Cal. 2014). Indeed, the Yepez case in

which evidence regarding the low-activity MAOA

genetic variant was presented undermines Wells’s

claim; it shows that not every fairminded jurist “would

agree that every reasonable lawyer would have made a

different decision” regarding whether to present this

genetic evidence. Reeves, 594 U.S. at 740.

Nevertheless, as noted above, Dr. Bernet conceded to

the jury that not all studies confirmed the early research

but said meta-analysis of the research demonstrated the

validity of the theory. ROA.13063–65. Trial counsel were

entitled to rely on the information their experts

provided. See Green v. Lumpkin, 860 F. App’x 930, 938–

39 (5th Cir. 2021). (“[E]vidence that other mental health

experts disagreed with a defense expert’s evaluation

would not in itself indicate that it was unreasonable for

trial counsel to rely on the evaluation.”); Segundo v.

Davis, 831 F.3d 345, 352 (5th Cir. 2016). As the state

court found, Wells’s disagreement with counsel’s

strategic decision fails to show counsel were deficient.

ROA.17795–96.

30

Notwithstanding, the relevant question for Wells’s

ineffectiveness claim is not whether Dr. Bernet’s

testimony was reliable but whether trial counsel

performed reasonably. Strickland, 466 U.S. at 687. As

discussed above, trial counsel developed the genetic

evidence, conceding that not all studies regarding the

MAOA gene supported the connection between the

variant, childhood maltreatment, and violent behavior.

The genetic evidence was part of a broad mitigation

presentation, which largely focused on Wells’s troubled

upbringing. Trial counsel were faced with seeking a

favorable sentencing verdict where their client had

killed four people, including a child and viable unborn

baby, where their client had a long and disturbing

history of anger and violence, and where his violence

continued even when he was in jail. Pet. App. 61a–62a.

Wells’s outbursts began when he was a child, ROA.6129,

and trial counsel pursued a strategy of explaining what

caused them and why they were not in Wells’s control,

ROA.6124. Sealed ECF No. 78-13 at 2696–97, 2829–30.

“‘There are countless ways to provide effective

assistance in any given case,’ and . . . trial counsel found

and employed one.” Brewer v. Lumpkin, 66 F.4th 558,

568 (5th Cir. 2023) (quoting Strickland, 466 U.S. at 689).

Wells fails to show trial counsel were constitutionally

ineffective for making the reasoned, conscious, and

strategic decision to present Dr. Bernet’s testimony.

31

B. Reasonable jurists could not debate that

Wells failed to show prejudice as a result of

trial counsels’ decision to present evidence

of Wells’s genetic propensity to violence.

Wells fails to show that he was prejudiced by Dr.

Bernet’s testimony. Stated again, Dr. Bernet testified

that Wells’s low-activity MAOA gene did not make him

more likely than not to be violent. ROA.13077.

Regardless, Wells entirely fails to show that he would

not have been sentenced to death but for Dr. Bernet’s

testimony. As the state court and district court found,

the gruesome evidence of the murders, Wells’s history of

abuse against Brooks and Chanice, his violence while in

jail awaiting trial, and his own testimony that he gets

angry and has difficulty controlling himself

overwhelmingly supported the jury’s answers to the

special issues. Pet. App. 57a–58a, 61a–62a; ROA.17794–

98. Here, the aggravating facts make it “virtually

impossible to establish prejudice.” Ladd v. Cockrell, 311

F.3d 349, 360 (5th Cir. 2002) (citation omitted).

Wells argues that his case is like Buck because, as in

that case, his acts of violence occurred within the context

of romantic relationships. Pet. Cert. 26 (citing Buck, 580

U.S. at 120–21). However, it was the “particularly

noxious strain of racial prejudice” that this Court found

warranted relief in Buck. Id. at 121. Nothing in Buck

suggests an extensive history of beating women, four

killings (including a young child and a viable fetus), and

32

exhibition of violence in jail is outweighed by the

presentation of genetic evidence. Accordingly, the

district court’s holding that this evidence precluded a

showing of prejudice is not debatable among reasonable

jurists.

CONCLUSION

Based on the foregoing, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JOSH RENO

Deputy Attorney General for

Criminal Justice

TOMEE M. HEINING

Chief, Criminal Appeals

Division

s/ Lucas Wallace____________

LUCAS WALLACE*

Assistant Attorney General

33

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1400

Lucas.wallace@oag.texas.gov

*Counsel for Respondent