# Petition for Writ of Certiorari — Miniel v. Dretke > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0763%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 540 U.S. 1179 ## Text rer Trt: In the Supreme Court of the United States PETER J. MINIEL, Petitioner, JANIE COCKERELL, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR WRIT OF CERTIORARI Gregory R. Merz Counsel of Record Gray, Plant, Mooty, Mooty & Bennett, P.A. 3400 City Center 33 South Sixth Street Minneapolis, Minnesota 55402 (612) 334-2800 (612) 333-0066 (fax) Attorney for Petitioner, Peter J. Miniel 2003 — Bachman Legal Printing @ (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053 ae CAPITAL CASE QUESTIONS PRESENTED 8 Whether the Fifth Circuit erred in finding that trial counsel’s failure to investigate Mr. Miniel’s mental functioning and, as a result, failure to discover evidence that Mr. Miniel was suffering from a significant brain impairment, was consistent with prevailing professional norms, notwithstanding counsel’s knowledge of facts that should have put him on notice of the need to investigate further? a Whether the Fifth Circuit unreasonably applied Strickland v. Washington and Strickland’s progeny, including Wiggins v. Corcoran and Williams v. Taylor, in concluding that trial counsel’s failure to offer mitigating evidence of Mr. Miniel’s physical and emotional abuse at the hands of his step father, his abuse of drugs and alcohol, and brain damage which impaired his reasoning abilities, did not cause Mr. Miniel to suffer prejudice in the sentencing phase of his capital murder trial? 2. Whether the Fifth Circuit’s rejection of Mr. Miniel’s Penry claim was based on an improperly limited reading of this Court’s decisions in Penry J and Penry II? LIST OF PARTIES Pursuant to Rule 14.1(b), the following list identifies all of the parties before the United States Court of Appeals for the Fifth Circuit: . Peter J. Miniel was Petitioner-Appellant, below. Janie Cockerell, Director of the Fexas Department of Criminal Justice, Institutional Division, was Respondent-Appellee below. il TABLE OF CONTENTS SP RPMU ALPE BPRASSIIN EEO) 5.005. cccssnssscecossessesesvsvevensssearsunseoes 1 snc ens dasavciprvavesviedabsverusoovensssansiecas il AE I REE BO sic essnessvsenisesssenesonsszesevsesvensovsssecsoees ill Es )_, SE Re vi PETITION FOR WRIT OF CERTIORARI................00000000 l doris oacndicsdseincciceneinsnesevedindnacoivaneis l ae a cslishesahea prin ebiaeiss+xsundibersanessivenenkinssns ] STATUTORY PROVISION INVOLVED................0:::0000 l RMI OPEB OUES GIS occ chacsncnessscovevdenodnsridasecsdsnenss 2 A. Mr. Miniel’s Trial Proceedings......................0008. me B. Trial Counsel’s Failure to Investigate and Present Mitigating Evidence................:.0scocsseseseoss 3 C. State Post Conviction Proceedings....................000 7 D. Mr. Minist’s Federal Habeas Petition .................... 8 E. The Fifth Circuit’s Denial of COA ........................ 8 REASONS FOR GRANTING THE PETITION ....000.00.2... 10 I. II. IT. THE FIFTH CIRCUIT FAILED TO REASONABLY APPLY SUPREME COURT PRECEDENT IN CONCLUDING THAT MR. MINIEL’S TRIAL COUNSEL’S FAILURE TO INVESTIGATE MR. MINIEL’S MENTAL AND PSYCHOLOGICAL CONDITION DID NOT CONSTITUTE PROFESSIONALLY UNREASONABLE GN sass sieceaions suicesucevypanadesncimcacdadneseaiionidaniodn 10 IN LIMITING THE PREJUDICE ANALYSIS APPLIED IN WIGGINS AND WILLIAMS TO THE SPECIFIC FACTS IN THOSE CASES, THE LOWER COURT FAILED TO CONSIDER WHETHER THERE WAS A REASONABLE PROBABILITY THAT THE OMITTED MITIGATING EVIDENCE, TOGETHER WITH THE MITIGATING EVIDENCE THAT WAS PRESENTED, WOULD HAVE CAUSED ONE JUROR TO ANSWER ONE OF THE TWO SPECIAL ISSUE QUESTIONS IN THE NEGATIVE......... 15 THE FIFTH CIRCUIT ERRED IN ITS APPLICATION OF THIS COURT’S RP AAR GEO TRIOUE ES sinicciiikinnenransnbesitebnnnancapasiite 22 iV IV. THE FIFTH CIRCUIT’S DENIAL OF COA DESPITE SIGNIFICANT EVIDENCE SUPPORTING MR. MINIEL’S CLAIM ~- REPRESENTED AN UNREASONABLE APPLICATION OF THE CORRECT STANDARD ARTICULATED BY THIS CPI EIN BEEBE vnsiscnviveisnvasencaceinsenenscscien 22 CONCLUSION FART ae dco ocinsseseriesvignnnee nee A-i TABLE OF AUTHORITIES Cases Battenfield v. Gibson, 236 F.3d 1215, 1228 (10™ Cir. 2001)..........scssseseessoseseeeess 1] Carter v. Bell, 218 F.3d 581,596 (6" Cir. 2000) .........000-. ecninailastaeiannaiias 1] Frazier v. Huffman, se 50 TOP, FIR Cie FOO) in ntiridnci caus 16 Jackson v. Calderon, TES ER Cir: DOOD) oo cxsccssiiestciincermresivieneenindes 12 Miller-El v. Cockrell, BO? US. S22, 123 B. Ct. WOZS (AGBS) osiisscvscesevesenvesenss 21,22 Penry v. Johnson, Dae US. FEZ, 123 S. Ce. VOID CIO paciccssensscssccccsscome 11,21 Penry v. Lynaugh, G2 US. FOZ, SED, 109 FS. C2. ZIFF a cccsccctcicssesress 16, 18, 21 Skipper v. South Carolina, Pe re By Fy PO BA. TOP vs cnccncsaiescscrmnsserecrrncnies 16 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)... 9, 13, 15 Wiggins v. Smith, Bg Bd AA. SIRE URIS) cnvcsicorsbatrnrevccnnnring passim Williams v. Taylor, S29 US. S62, 128 S.C0. 1495S (LO) vosccccserconerssnrsoaey passim Statutes | its A TEE fetnsivccenicsrcs iano ee l BE © I vicinsssnisaniersdeicionienaeaaan 1,8 V1 PETITION FOR WRIT OF CERTIORARI Petitioner Peter J. Miniel respectfully requests this Court to issue a writ of certiorari to review a decision of the United States Court of Appeals for the Fifth Circuit. OPINIONS BELOW The decision of the United States Court of Appeals for the Fifth Circuit is reported at 339 F.3d 331 (5™ Cir. 2003), and is reprinted at Pet. App. A-1 to A-28. The decision of the United States District Court for the Southern District of Texas is unreported and relevant excerpts are reprinted at Pet. App. A-33 to A-68. The order of the United States Court of Appeals for the Fifth Circuit denying rehearing and rehearing en banc, is set forth at Pet. App. A-29 to A-30. JURISDICTION The Court of Appeals’ judgment was entered on July 17, 2003. A timely petition for rehearing and rehearing en banc was filed and was subsequently denied on August 18, 2003. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). STATUTORY PROVISION INVOLVED This case involves the provision of the federal habeas statute governing federal review of state court decisions, 28 U.S.C. § 2254, reprinted at Pet. App. A-32. STATEMENT OF THE CASE A. Mr. Miniel’s Trial Proceedings On October 7, 1988, Mr. Miniel was convicted of capital murder in connection with the death of Paul Manier. During the sentencing phase of the trial, the State presented the testimony of five witnesses, four of whom testified concerning Mr. Miniel’s criminal history during the time that he lived in Illinois, prior to moving to Texas, which consisted of a misdemeanor convictions for retail theft and disorderly conduct, a guilty plea to an aggravated battery in connection with an altercation with a girlfriend, revocation of probation on a misdemeanor charge of unlawful use of weapons (which revocation was based on his guilty plea to aggravated battery), and a subsequent unadjudicated charge of aggravated battery, again relating to am altercation with his girlfriend. The fifth State’s witness, an officer with the Humble Police Department of Humble, Texas, testified regarding Mr. Miniel’s bad reputation in the community for violence. Mr. Miniel’s trial counsel presented only three witnesses at the sentencing phase, none of whom had known Mr. Miniel prior to the crime. One of these witnesses, Darryl Hendrickson, an officer working in the Harris County Jail, testified that Mr. Miniel had not presented any disciplinary problems during his incarceration. The second witness, Carol Weed, was a venireperson who had not been selected for Mr. Miniel’s jury and who had visited Mr. Miniel several times while he was in jail. The third witness, Juan Cortez, an assistant chaplain working at the jail, testified regarding Mr. Miniel’s attendance at church services. The record reflects that Mr. Miniel’s trial counsel first spoke with both Ms. Weed and Mr. Cortez only the day before they testified. ' | 28 S.F. at 94, 104. meee A DA lh “iad a ae ar ra erate crn erent oscon On October 12, following the two-day sentencing hearing, the jury returned affirmative answers to the two special issue questions then required under Texas law. B. Trial Counsel’s Failure to Investigate and Present Mitigating Evidence In this case, trial counsel failed to perform any investigation whatsoever of his client’s social history. Mr. Miniel’s trial counsel presented only three witnesses at the sentencing phase, none of whom had known Mr. Miniel prior to the crime and two of whom counsel first spoke with only the night before they testified. Thus, Mr. Miniel’s jury did not hear any evidence about the circumstances of Mr. Miniel’s life before the crime that could help to explain his involvement and render that involvement in a less culpable light. The record developed in post-conviction proceedings in state court establishes that there was ample mitigating evidence available, had counsel only looked for it. Had Mr. Miniel’s trial counsel performed any investigation at all he would have discovered the following, all of which was presented in support of Mr. Miniel’s petition: e That Mr. Miniel suffered from a brain impairment, including significant dysfunction in the frontal lobes of his brain; * That Mr. Miniel’s brain dysfunction severely limited his ability to comprehend the consequences of his actions; * That Mr. Miniel’s disabilities were exacerbated by parental neglect, abandonment, abuse, many head injuries, and chronic substance abuse; 3 That Mr. Miniel was a victim of severe child abuse by his adoptive father who beat Mr. Miniel with his fists and whipped him with a belt; That Mr. Miniel was born to a mother who did not want him and who immediately pawned him off on the first relative she could find; That Mr. Miniel never knew his natural father and that his adoptive father, the only father he ever did know, made Mr. Miniel the family scapegoat; That Mr. Miniel and his adoptive siblings were frequently left alone, either at home or sitting in the car, while their mother was at work and their father was getting drunk; That Mr. Miniel’s adoptive moiher suffered from extended bouts of serious mental illness throughout his childhood; That each of Mr. Miniel’s siblings attempted suicide at least once; That, upon finding out at age twelve that he was adopted, Mr. Miniel experienced a radical personality change, which reflected itself in hostility and anger as well as alcohol and drug abuse; That, while in his early teens, Mr. Miniel frequently drank until he passed out; e That Mr. Miniel’s drug and alcohol abuse interfered with his ability to learn and that he dropped out of school at age 16; e That Mr. Miniel’s alcohol and drug use continued to escalate through Mr. Miniel’s teens and into his early twenties; e That Mr. Miniel was seriously injured in a number of automobile accidents. One of Mr. Miniel’s sisters recounted a harrowing description of one beating that Mr. Miniel suffered at the hands of his adoptive father: John [one of Mr. Miniel’s adoptive brothers] told my father that Peter had hurt his feelings. My father became enraged and jumped on top of Peter. He pinned Peter’s arms to the floor by kneeling on them. He then started hitting Peter across the face over and over again until Peter’s face was covered with blood. Peter was only about 10 years old at this time. I finally yelled out for my father to stop. I thought he was going to kill Peter. I have never seen anyone else be beaten like this. Pet. App. A-117. Another sister recalls, “Other times, Dad would grab Peter’s upper arm, pick him up, and hold him in the air while he beat him, either with his hand or a belt. I still remember the sight of Dad unhooking his belt, pulling it off, and beating Peter with it everywhere. Dad would shake Peter’s arms so hard, while holding him in the air, that it seemed like, if he shook any harder, Peter’s arm would just snap off.” Pet. App. A-141. In addition to the affidavits of Mr. Miniel’s family members describing his childhood and early adulthood — properly described as “nightmarish” — Mr. Miniel also presented an expert neuropsychological and psychological evaluation. Pet. App. A-97 to A-112. The report of that evaluation concluded: The current evaluation indicates that Peter has incurred mild overall brain impairment, ‘has below average intellectual functioning, has a long history of physical and emotional abuse and abandonment, and has a lengthy history of chronic substance abuse. The effects of this history and_ his neuropsychological dysfunction would be consistent with moderate impairment of his mental, cognitive, academic, social, and behavioral functioning. The diffuse nature of his neuropsychological dysfunction limits his ability to use good judgment, to reason and to inhibit impulsive behaviors. Pet. App. A-97. The expert report found Mr. Miniel to have a significant dysfunction in the frontal lobes of his brain, noting that damage to the frontal lobes severely limits a person’s ability to think, reason, and control impulses, and stating that, “These severe limitations hinder Peter’s ability to comprehend the consequences of his actions.” Pet. App. A- 110. Further, the report put Mr. Miniel’s brain damage in the context of his social history in a way that would support a conclusion of diminished culpability for the crime: The results and background data indicate a high probability that Peter has neuropsychological impairment that is probably a result of his two closed head 6 injuries as well as beatings to the face and head in childhood. Possibility of prenatal damage also exists since his mother was chemically dependent during the pregnancy. His disabilities have been exacerbated by parental neglect, abandonment, abuse, his many head injuries, and chronic long term substance abuse. Any single one of these factors can produce significant dysfunction. Child neglect and abuse often lead to poor impulse control, poor frustration tolerance, and incapacitating personality functioning. Head injuries can frequently emulate similar dysfunction. Chronic drug abuse can also generally produce brain impairment. Pet. App. A-111. C. State Post Conviction Proceedings Following the denial of direct appeals from his conviction, Mr. Miniel filed a petition with the state court for post conviction relief which included a claim of ineffective assistance of counsel arising from his trial counsel’s failure to investigate and offer mitigating evidence. In support of his ineffective assistance of counsel claim, Mr. Miniel submitted affidavits of family members recounting his harrowing social history, as well as the expert neuropsychological and psychological evaluation described above. Mr. Miniel also requested an evidentiary hearing. The State, in response to Mr. Miniel’s ineffective assistance of counsel claim, offered the affidavit of Mr. Miniel’s trial counsel, who attempted to excuse his failure to perform even a rudimentary investigation of Mr. Miniel’s social history. Notwithstanding many disputed issues of fact, the state court did not grant, or, indeed, even rule on Mr. Miniel’s request for an evidentiary hearing, but instead, requested, by way of an ex parte telephone call to the State, that the parties submit proposed findings. Following the parties’ submission of their respective proposed findings, the district court judge, who was not the judge who presided at Mr. Miniel’s trial, signed the Findings prepared by the State, adopting those Findings without any modification — indeed, without even removing the words “Respondent’s Proposed” from the title of the document. The Texas Court of Criminal Appeals, in a page and a half, eight sentence, per curiam decision, adopted the district court’s recommended decision and denied Mr. Miniel’s petition without any substantive analysis. D. Mr. Miniel’s Federal Habeas Petition Following the state court’s denial of his petition for post conviction relief, Mr. Miniel filed his application with the federal court, seeking relief pursuant to 28 U.S.C. § 2254. In connection with that application, Mr. Miniel again requested an evidentiary hearing. The lower court, however, granted the State’s motion for summary judgment, dismissing Mr. Miniel’s claims, and subsequently denied Mr. Miniel’s motion to amend or alter judgment. E. The Fifth Circuit’s Denial of COA Following the federal district court’s grant of summary judgment denying Mr. Miniel’s petition for post conviction relief, Mr. Miniel petitioned the Fifth Circuit for Certificate of Appealability (“COA”), pursuant to 28 U.S.C. 2253(c). In that petition, Mr. Miniel sought leave to appeal on the ground, among others, that his trial counsel’s failure to investigate and present mitigating evidence constituted constitutionally ineffective assistance of counsel which 8 established a substantial showing of the denial of a constitutional right. The Fifth Circuit recognized that Mr. Miniel’s ineffective assistance of counsel claim was governed by this Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under Strickland, a party demonstrates ineffective assistance of counsel rising to the level of a Constitutional violation when that party demonstrates that counsel’s performance failed to meet generally accepted standards of competence and that, but for counsel’s ineffective performance, there exists a reasonable probability that the outcome of the case would have been different. 466 U.S. at 687. In denying the COA, the Fifth Circuit found that Mr. Miniel’s trial counsel was not constitutionally ineffective as a result of his failure to conduct an investigation into Mr. Miniel’s damaged psychological condition because counsel was not sufficiently “on notice” of that condition. With respect to counsel’s failure to investigate Mr. Miniel’s social history, the court did not consider arguments relating to the first prong of Strickland, resting its decision, instead, solely on its conclusion that Mr. Miniel had failed to establish prejudice arising from the failure to present mitigating evidence. The lower court found that, in light of the facts of the crime, there was not a reasonable probability that, even had the mitigating evidence been presented, the jury would have decided differently. The court, in a footnote, addressed Wiggins v. Smith, _ U.S. __, 123 S.Ct. 2527 (2003), and Williams v. Taylor, 529 U.S. 362, 128 S.Ct. 1495 (2000), two recent decisions in which this Court found ineffective assistance arising from counsel’s failure to investigate and present mitigating evidence. The court rejected Mr. Miniel’s reliance on those cases on the ground that the mitigating evidence proferred by Mr. Miniel in support of his claim for 9 post-conviction relief was “mild” when compared with the evidence in Wiggins and Williams. REASONS FOR GRANTING THE PETITION I. THE FIFTH CIRCUIT FAILED TO REASONABLY APPLY SUPREME COURT PRECEDENT _IN CONCLUDING THAT MR. MINIEL’S TRIAL COUNSEL’S FAILURE TO INVESTIGATE MR. MINIEL’S MENTAL AND PSYCHOLOGICAL CONDITION DID NOT CONSTITUTE PROFESSIONALLY UNREASONABLE CONDUCT Mr. Miniel’s trial counsel did not retain any experts or otherwise perform any investigation of Mr. Miniel’s mental and psychological condition. As discussed above, expert evidence presented in Mr. Miniel’s post conviction case showed Mr. Miniel to be suffering from a serious brain impairment that “limit[ed] his ability to use good judgment, to reason and to inhibit impulsive behaviors.” The Fifth Circuit concluded that counsel’s failure to do any investigation of Mr. Miniel’s mental functioning that would have uncovered this important mitigating evidence did not constitute professionally unreasonable conduct because counsel was not sufficiently “on notice” of the need to investigate. Pet. App. A-22. The lower court based this conclusion trial counsel’s reliance on the fact that Mr. Miniel had been pronounced competent to stand trial and on trial counsel’s claim that Mr. Miniel has been “lucid and conversant” in their meetings. Jd. This conclusion is contrary to this Court’s teaching in Strickland, as further developed in Williams and Wiggins. Under the first prong of the now-familiar Strickland test, a defendant claiming constitutionally ineffective assistance of counsel must show that counsel’s representation 10 fell below an objective standard of reasonableness. 466 U.S. at 687-88. The Court has not established specific requirements to be used to determine objective reasonableness. Rather, “the proper measure of attorney performance remains simply the reasonableness under prevailing professional norms.” Jd. at 688. In order to comply with the Constitution’s requirement that a sentence of death be based on an individualized sentencing determination, the jury must consider all mitigating evidence related to a defendant’s character and background. See Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910 (2001); see also Williams, 529 U.S. at 396 (recognizing counsel’s “obligation to conduct a thorough investigation into the defendant’s background,” citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)). Accordingly, minimum standards of professional competence require that counsel for an accused facing the death penalty conduct a thorough investigation to discover mitigating evidence that can be submitted to the fact-finder during the penalty phase of the trial. Other circuits have similarly emphasized the fundamental nature, in a death penalty case, of an adequate inquiry into the availability of possible mitigating evidence. See, e.g., Battenfield v. Gibson, 236 F.3d 1215, 1228 (10" Cir. 2001) (reversing sentence of death based on finding that counsel’s failure to interview the defendant or anyone else regarding potential mitigating evidence fell below minimum standards of professional competence and emphasizing that the reliability of a death sentence depends heavily on the consideration of the defendant’s individual character and circumstances.); Carter v. Bell, 218 F.3d 581, 596 (6" Cir. 2000) (“The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility.”); 1] Jackson v. Calderon, 211 F.3d 1148 (9" Cir. 2000) (finding ineffective assistance of counsel when the defendant’s lawyer made no attempt to investigate the defendant’s childhood, made no attempt to convey the conditions of defendant’s childhood to the jury and failed to present any medical evidence, despite being aware that such evidence would show that defendant was under the influence of PCP at the time of the crime, and his sole preparation for the penalty phase consisted of an interview with the defendant’s mother and his estranged wife, and a cursory examination of the defendant’s juvenile and medical records). In Wiggins, this Court considered the circumstances under which counsel might, consistent with his or her constitutional responsibilities, decide to limit investigation regarding possible mitigating evidence. There, trial counsel’s investigation of Wiggins’ social history consisted of a review of a presentence investigation report and certain social services records as well as retaining a psychologist to perform an evaluation of Wiggins’ mental functioning. Counsel failed to uncover evidence of a significant history of very severe physical and emotional abuse as well as_ borderline retardation. The Court held that the limited investigation conducted by counsel constituted a failure to discover all reasonably available mitigating evidence. 123 S. Ct. at 2537. Moreover, the Court found the content of the social services records that counsel did review should have caused counsel_to investigate further and that counsel’s failure to follow-up on this evidence was unreasonable, stating that “any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses.” Jd. Further, the Court noted: In assessing the reasonableness of an attorney’s investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming [trial counsel] limited the scope of their investigation for strategic reasons, Strickland does fot establish a cursory investigation automatically justifies a tactical decision with respect to sentencing Strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy. Id. at 2538. Accordingly, “[a] decision not to investigate thus ‘must be directly assessed for reasonableness in all the circumstances.” Jd. at 2541, quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2052. Here, there was ample evidence that should have put counsel on notice of the need to investigate. First, Mr. Miniel’s trial counsel, in his affidavit submitted in opposition to Mr. Miniel’s petition, observed, regarding Mr. Miniel’s family members, that there was “a certain warmth missing in their feelings” for Mr. Miniel and that he was not certain whether Mr. Miniel’s family would ask the jury to spare Mr. Miniel’s life. Such observations should, by themselves, have been a red_flag that something was seriously amiss in Mr. Miniel’s family history. Even the very brief conversations that trial counsel now acknowledges having with Mr. Miniel’s family should have led him to investigate further. Notwithstanding what should have been very troubling comments by Mr. Miniel’s family, counsel states that he cannot now recall whether he ever asked about the possibility that Mr. Miniel had suffered abuse as a child. Further, counsel should also have been aware, based on the State’s competency opinion, if not from information - from his own client, that Mr. Miniel had a history of heavy 13 drug and alcohol abuse. Counsel was also aware that Mr. Miniel was using drugs and alcohol on the night of the crime. These facts should have led counsel to investigate further to determine the extent to which Mr. Miniel’s history of drug and alcohol abuse might be presented as mitigating evidence. Neither counsel’s own untrained observations concerning Mr. Miniel’s mental state nor the competency examination by the State’s expert, Dr. Brown, can be reasonably relied upon to excuse trial counsel’s failure to investigate. Counsel, although he claims that he “never suspected that Miniel suffered from any mental health problems or mental retardation,” does not claim that he has any training or expertise that would qualify him to make such a judgment. Such uninformed, off-the-cuff assessments plainly cannot substitute for investigation. Nor does Dr. Brown’s evaluation excuse the failure to investigate. The purpose of Dr. Brown’s examination of Mr. Miniel was to determine Mr. Miniel’s competence to stand trial. The purpose of that examination plainly was not to assist defense counsel in developing mitigating evidence. To the extent that trial counsel relied on Dr. Brown’s report in planning his trial strategy, such reliance was manifestly unreasonable and inconsistent with appropriate professional judgment. Il. IN LIMITING THE PREJUDICE ANALYSIS APPLIED IN WIGGINS AND WILLIAMS TO THE SPECIFIC FACTS IN THOSE CASES, THE LOWER COURT FAILED TO CONSIDER WHETHER THERE WAS A REASONABLE PROBABILITY THAT THE OMITTED MITIGATING EVIDENCE, TOGETHER WITH THE MITIGATING EVIDENCE THAT WAS PRESENTED, WOULD HAVE CAUSED ONE JUROR TO ANSWER ONE OF THE TWO SPECIAL ISSUE QUESTIONS IN THE NEGATIVE In order to show that counsel’s. professionally unreasonable conduct resulted in prejudice, for purposes of the second prong of the Strickland analysis, the petitioner must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” /d. Here, one “no” vote by one juror to either of the two special issue questions would have changed the outcome from death to life. Thus, the proper prejudice analysis for a claim of ineffective assistance of counsel arising from the failure to investigate and present mitigating evidence asks whether there is a reasonable probability that the omitted evidence, together with the evidence that was presented, would have caused one juror to change his or her vote on one of the special issue questions. This is the analysis that this Court’s precedents require and this is the analysis that the Fifth Circuit failed to apply. In Williams and, just last term, in Wiggins, this Court addressed the proper application of the Strickland prejudice analysis, concluding, in both cases, that counsel’s failure to investigate and present evidence of a history of child abuse 15 and impaired mental functioning resulted in prejudice. The evidence supporting Mr. Miniel’s ineffective assistance of counsel claim makes this case materially indistinguishable from Williams and Wiggins. Here, as in Williams and Wiggins, the jury heard nothing of Mr. Miniel’s circumstances prior to his participation in the crime. Here, as in Williams and Wiggins, counsel failed to investigate and present evidence of a disadvantaged background beyond Mr. Miniel’s control, including physical abuse and limited mental functioning. Here, as in Williams and Wiggins, the omitted mitigating evidence tells a powerful story that would have humanized Mr. Miniel before the jury and diminished his culpability. Cf Penry v. Lynaugh, 492 U.S. 302,319, 109 S. Ct. 2934 (“‘[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background may be less culpable than defendants who have no such excuse.’”); see also, Skipper v. South Carolina, 476 U.S. 1, 13, 106 S.Ct. 1669 (1986) (Powell, J., joined by Burger, C.J., and Rehnquist, J., concurring) (“[s]ociety’s legitimate desire for retribution is less strong with respect to defendants who have reduced capacity for considered choice{;]... [e}vidence concerning the defendant’s emotional history thus bear(s] directly on the fundamental justice of imposing capital punishment.”); Frazier v. Huffman, 343 F.3d 780, 798 (6" Cir. 2003) (applying Strickland and Williams in concluding that defendant was prejudiced by counsel’s failure to — investigate and present evidence of defendant’s functional brain impairment, stating, “Had the jurors been confronted with the mitigating evidence of Frazier’s brain injury, the probability that at least one juror would not have decided that the aggravating circumstances beyond a reasonable doubt ‘is a probability sufficient to undermine confidence in the outcome.’”’) 16 In Williams, trial counsel failed to conduct an investigation that would have uncovered extensive records of Williams’ “nightmarish childhood,” including evidence that Williams’ parents had been imprisoned for criminal neglect of Williams and his siblings and that Williams had been repeatedly beaten by his father. 529 U.S. at 395. Further, counsel failed to introduce available evidence that Williams was “borderline mentally retarded” and had not advanced beyond sixth grade. Jd. Evidence also showed that Williams had suffered repeated head injuries and that he might have had mental impairments that were organic in origin. Id. at 370. : The Court had little trouble concluding that Williams’ trial counsel’s lack of investigation met the “deficient performance” prong of the Strickland test. Id. at 395. Turning to the prejudice prong, the Court emphasized the need to consider the totality of the evidence — including mitigating evidence that was introduced and mitigating evidence that counsel failed to discover — in determining whether there was _a reasonable probability that the outcome would have been different. In concluding that Williams was prejudiced by his trial counsel’s failure to investigate and present mitigating evidence, the Court observed that, while evidence of Williams’ confession and remorse for his crime, together with evidence of Williams’ good behavior in prison “may not have overcome a finding of future dangerousness, the graphic description of Williams’ childhood filled with abuse and privation, or the reality that he was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability.” Jd. at 398. In Wiggins, the Court also found that the defendant had been prejudiced by his trial counsel’s failure to perform a reasonably competent investigation of mitigating evidence, stating, “Petitioner thus has the kind of troubled history we 17 ee ieriesssinesiiliaaaa iciciiiiaieemaaialiaaiaa iain have declared relevant to assessing a defendant’s moral culpability.” 123 S. Ct. at 2542, citing Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989). As in Williams, the Court emphasized the need to evaluate prejudice in light of evidence presented at trial and the evidence adduced in the habeas proceedings, taken together. Jd. at 2543. Thus, the Court held: Wiggins’ sentencing jury had only one significant mitigating factor — that Wiggins had no prior convictions. Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Id. The Fifth Circuit’s decision inappropriately limits both Wiggins and Williams to their specific facts by characterizing Mr. Miniel’s mitigating evidence as “mild” when compared with the social history evidence presented in those cases. This, however, is not the proper comparison. Instead, the weight of the additional mitigating evidence (and the prejudice arising from trial counsel’s failure to discover and offer it), must be determined in light of the other punishment and mitigation evidence in this case. The question, under Williams and Wiggins, is not whether the mitigating evidence is “better” or “worse” than the specific facts of those cases. Rather, the question is whether the available mitigating evidence, taken as a whole, “might well have influenced the jury’s appraisal” of Mr. Miniel’s moral culpability in light of the totality of the evidence. 123 S. Ct. at 2544. The lower court never addressed this question because it chose, instead, to read Williams and Wiggins so narrowly as to be limited to their specific facts. 18 ; 7 The lower court concluded that the State’s punishment phase evidence, consisting of Mr. Miniel’s criminal record and the circumstances of the crime itself would have overwhelmed any mitigating evidence that Mr. Miniel could have offered. The Court rejected similar reasoning in Williams, where, unlike this case, the defendant had an extensive record of violent conduct. See 529 U.S. at 418 (Rehnquist, C.J., dissenting) (noting that Williams had savagely beaten an elderly woman, stolen two cars, set fire to a home, stabbed a man during a robbery and confessed to choking two inmates and breaking a fellow prisoner’s jaw). The Williams Court found prejudice even in the face of this violent history. Here, Mr. Miniel’s criminal history does not reflect anything near this degree of violence. Mr. Miniel’s criminal record, which the State presented in support of its death case, consisted of a misdemeanor convictions for retail theft and disorderly conduct, a guilty plea to an aggravated battery in connection with an altercation with a girlfriend, revocation of probation on a misdemeanor charge of unlawful use of weapons, based on his guilty plea to aggravated battery, and a subsequent unadjudicated charge of aggravated battery, again relating to an altercation with his girlfriend. Further, the Fifth Circuit repeats the mistake of the court of appeals in Williams of failing to weigh the mitigating evidence that was omitted together with the evidence that was presented — which established Mr. Miniel’s good behavior and religious conversion since his incarceration. The Court in Williams reasoned that, while evidence that was presented at trial concerning Williams’ remorse and good behavior in prison may not have overcome a finding of future dangerousness, that evidence, together with “the graphic description of Williams’ childhood filled with abuse and privation, or the reality that he was ‘borderline mentally 19 ne retarded,’ might well have influenced the jury’s appraisal of his moral culpability.” Jd. at 398. This same reasoning applies here. Moreover, trial counsel’s failure to conduct an investigation of Mr. Miniel’s social history was prejudicial in still another way. The Fifth Circuit concluded that trial counsel’s failure to obtain an expert evaluation of Mr. Miniel did not constitute deficient performance because trial counsel was not sufficiently “on notice” of Mr. Miniel’s condition. However, had trial counsel performed an investigation of Mr. Miniel’s social history, counsel would have learned that Mr. Miniel had suffered severe beatings and neglect as a child, that he began abusing drugs and alcohol at a very early age, that he had had difficulty in school, and that he had suffered a number of serious head injuries. These facts would have, at the least, spurred a reasonable attorney to retain an expert in order to evaluate the effects of Mr. Miniel’s history on his mental functioning. Significantly, even the constitutionally deficient investigation in Wiggins included an evaluation by a psychologist. Had this occurred, Mr. Miniel’s jury would have been presented with a picture of Mr. Miniel as a whole person, in a way that would likely have caused it to hold him less responsible for his crime. Thus, the jury would have heard evidence of an extremely traumatic childhood that was not just tragic but that caused damage to Mr. Miniel’s brain which in turn, limited Mr. Miniel’s “ability to use good judgment, to reason and to inhibit impulsive behaviors.” This evidence, together with ihe mitigating evidence that was presented, of Mr. Miniel’s good behavior and religiousness while in jail, would have provided the jury with context that would enabled it to answer in the negative as to either the “deliberateness” of Mr. Miniel’s crime or his future dangerousness. 20 Ill, THE FIFTH CIRCUIT ERRED IN_ ITS APPLICATION OF THIS COURT’S DECISION IN PENRY In addition to his ineffective assistance of counsel claim, Mr. Miniel also sought COA on the ground that the special issues in effect in Texas at the time of his trial unconstitutionally deprived him of the opportunity to have the jury consider and give weight to mitigating evidence, contrary to this Court’s decisions in Penry v. Lynaugh, 492 U:S. 302 (1989) (“Penry I’), and Penry v. Johnson, 532 U.S. 782 (2001) (“Penry IT’). In rejecting Mr. Miniel’s claim, the Fifth Circuit stated that, “The Court [in Penry I/] did not indicated that we have misinterpreted what constitutes Penry evidence.” Pet. App. A-7. This Court has recently granted cert in two cases, Smith v. Dretke, No. 02-11309, and Tennard v. Dretke, 02-10038, in which the Court will review whether the Fifth Circuit has correctly applied Penry IJ and Penry IJ. Mr. Miniel respectfully urges the Court to delay any determination in this case pending a decision in those cases. IV. THE FIFTH CIRCUIT’S DENIAL OF COA DESPITE SIGNIFICANT EVIDENCE SUPPORTING MR. MINIEL’S CLAIM REPRESENTED AN UNREASONABLE APPLICATION OF THIS CORRECT STANDARD ARTICULATED BY THIS COURT IN MILLER-EL The relevant inquiry, for purposes of determining whether to grant COA with respect to a claim, is whether jurists of reason would find the district court’s determination of the claim debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003). This is emphatically not the same as determining whether the petitioner is likely to ultimately prevail on the merits. Indeed, the Miller-E] Court 21 stated, “We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” 123 S. Ct. at 1040. Thus, reading Wiggins and Miller-El together, the question presented by this case is whether, taking the totality of the punishment evidence, including the evidence adduced at trial and the evidence presented in post conviction proceedings, there is a reasonable likelihood that one juror would have answered one of the special issue questions in the negative. Further, the Miller-El] Court clarified the applicable evidentiary standard used to determine whether the necessary threshold has been met. Noting that “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review,” the Court stated: In the context of the threshold examination in this Batson claim the issuance of a COA can be supported by any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. . . . Only after a COA is granted will a reviewing court determine whether the trial court’s determination of the prosecutor’s neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary. 123 S. Ct. at 1041 (emphasis added). The lower court, although paying lip service to Miller-E:, failed to apply it. 22 The evidence presented in support of Mr. Miniel’s petition meets, at the least, this threshold. CONCLUSION On the basis of the foregoing arguments and authorities, Peter J; Miniel respectfully requests that his petition for writ of certiorari be granted. Dated: November 17, 2003. Gregory R. Merz Counsel of Record Gray, Plant, Mooty, Mooty & Bennett, P.A. 3400 City Center 33 South Sixth Street Minneapolis, Minnesota 55402 (612) 334-2800 (612) 333-0066 (fax) Attorney for Petitioner, Peter J. Miniel 23 APPENDIX Peter J. Miniel v. Janie Cockerell, Director, Texas Department of Criminal Justice, Institutional Division, No. 02-20097 as Cir. July 17, 2003) Peter J. Miniel v. Janie Cockerell, Director, Texas Department of Criminal Justice, Institutional Division, No. 02-20097 ‘on Cir. August 18, 2003) 28 U.S.C. § 2253 28 U.S.C. § 2254 Ex parte Miniel, No. 42833-01, per curiam order (Texas Court of Criminal Appeals) Peter J. Miniel v. Janie Cockerell, Civil Action NO. H-00-4361, Memorandum and Order (S.D. Tex.) Ex parte Miniel, No. 4500033-A, Findings of Fact, Conclusions of Law and Order (337" District Court, Harris County, Texas) Confidential Neuropsychological and Psychological Evaluation of Peter Miniel Affidavit of Maria Juana Miniel Affidavit of Mary Margaret Miniel Affidavit of John P. Miniel Affidavit of Maria Secoro LeBlanc A-i A-1 A-29 A-31 A-32 A-33 A-35 A-69 A-97 A-113 A-129 A-134 A-139 a a Affidavit of Jessie Miniel A-145 Affidavit of Fred M. Heacock A-152 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-20097 PETER J. MINIEL, Petitioner-Appellant, VERSUS JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Texas Before JOLLY, DAVIS and CLEMENT, Circuit Judges. W. EUGENE DAVIS: Petitioner, Peter J. Miniel (Miniel), was convicted of capital murder in Texas and sentenced to death. He now seeks a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2) from the district court's denial of relief A-] under 28 U.S.C. § 2254 on the following claims: (1) the jury was precluded from considering mitigating evidence during sentencing; (2) he was denied the right to trial by an impartial jury; and (3) counsel rendered ineffective assistance by failing to conduct a pretrial investigation and present mitigating evidence during sentencing. For the reasons that follow, we deny COA on Miniel's claims. I. BACKGROUND. On October 7, 1998, Miniel was convicted of the felony murder of Paul Manier (Manier). After arriving at Manier's house to procure marijuana, Miniel concocted a plan to rob him. Miniel's co-defendant, James Warren Russell, Jr. (Russell), distracted Manier by telling him he was going to get cocaine. Manier cleaned a small mirror to use to snort the cocaine. When Manier leaned over the mirror, Miniel struck him on the back of the head with a beer mug. Miniel continued to stnke Manier until he fell to the ground. When Russell returned, he joined Miniel and struck Manier several times with a shock absorber that was nearby. Dissatisfied with Russell's efforts, Miniel took the shock absorber and began striking Manier with it. When Miniel could not knock out Manier, he stabbed Manier several times with a small knife. After this proved ineffective, Miniel attempted to slit his throat while Russell held him. Finally, Miniel attempted to asphyxiate Manier by shoving a blanket down his throat. After the murder, Miniel became angry when he realized that he had killed Manier for only twenty dollars. Miniel and Russell searched the apartment for drugs or money but all they could find to steal was stereo equipment. They washed off Manier's blood and hid the knife. Afterwards, Minie] and Russell went to Burger King to eat hamburgers. A-2 A jury convicted Miniel of capital murder.On October 12, 1988, the jury returned affirmative answers on two special issues required for imposition of the death penalty under Texas law, and the trial court sentenced Miniel to death. Miniel appealed his conviction to the Texas Court of Criminal Appeals which affirmed his conviction and sentence. Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992). The United States Supreme Court denied his application for a writ of certiorari. Miniel v. Texas, 506 U.S. 885, 113 S.Ct. 245 (1992). Thereafter, Miniel sought post- conviction relief in state court, filing a petition for a writ of habeas corpus in 1993 and an amended petition in 1996. Judge Larry Fuller, who was not the trial judge, presided over this proceeding. The state filed its answer in March 1999. Both sides filed affidavits, and without conducting an evidentiary hearing, the state district court requested that the parties submit proposed findings of fact and conclusions of law. The state district court adopted the State's proposed findings of facts and conclusions of law and denied relief. The Texas Court of Criminal Appeals adopted this order in December 1999. Thereafter, Miniel sought post-conviction relief in federal district court pursuant to 28 § U.S.C. 2254. The district court granted the State's motion for summary judgment in October 2001. The district court denied Miniel's motion to alter or amend the judgment. The district court also denied Miniel's request fora COA. Miniel now seeks a COA from this court. Il. STANDARD OF REVIEW. Miniel filed the instant Section 2254 application for habeas relief after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). A-3 His application is therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336,117 S.Ct. 2059, 2068 (1997). Under the AEDPA, an appeal may not be taken to this court unless the petitioner first obtains a COA. 28 U.S.C. § 2253(c)(2). "This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. ... " Miller-El v. Cockrell,123 S.Ct.1029,1039 (2003) (citing 28 U.S.C. §2253(c)(1)) . "The COA statute requires a threshold inquiry into whether the circuit court may entertain an appeal." /d. (citing Slack v. McDaniel, 529 U.S. 473, 482 (2000); Hohn v. United States, 524 U.S. 236, 248 (1998)). A COA will be granted only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n. 4,103 S.Ct. 3383, 3394 n. 4 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (Sth Cir.1997). The analysis "requires an overview of the claims in the habeas petition and a general assessment of their merit." Miller-El v. Cockrell,123 S.Ct.1029,1039. We must look to the district court's application of AEDPA to the petitioner's constitutional claims and determine whether the court's resolution was debatable among reasonable jurists. /d. "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." Jd. Rather, "'[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the A-4 eee ee constitutional claims debatable or wrong." Id. at 1040. (citing Slack v. McDaniel, 529 U.S. 473, 484). In making this assessment, we must be mindful of the deferential standard of review the district court applied to Miniel's claims as required by AEDPA. Hill v. Johnson, 210 F.3d 481, 48485 (Sth Cir. 2000). Section 2254(d) requires a federal district court to give deference to determinations by a state habeas court that adjudicated the petition on the merits. See Hill v. Johnson, 210 F.3d 481, 484-85 (Sth Cir. 2000). Pursuant to 28 U.S.C. § 2254(d), the district court defers to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) "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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,120 S.Ct.1495,1519-20 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 1521. Ill. © MITIGATING EVIDENCE. A. Denial of Mitigating Evidence Instruction Miniel argues that the state court denied a jury instruction with respect to the following mitigating evidence in violation of the Eighth Amendment: his drug and alcohol use at the time of the offense; his youth (age 23); his good A-5 SN behavior while incarcerated; and his religious conversion. ! Finding Miniel's claim precluded by precedent, we deny a COA. In Penry I, the Supreme Court reversed a death sentence on the ground that, although the evidence regarding the defendant's mental retardation and childhood abuse was presented to the jury at the penalty phase of the trial, the special issues prescribed by Texas statute prevented the jury from giving mitigating effect to that evidence. Penry v. Lynaugh, 492 U.S. 302, 328,109 S.Ct. 2934, 2952 (1989). Since the holding in Penry, federal courts have had the opportunity to determine whether the special issues provided a vehicle for considering numerous types of mitigating evidence. As in the instant case, the petitioner in Tucker v. Johnson, 115 F.3d 276, 281(Sth Cir.1997), argued that the jury was prevented from considering the mitigating evidence of her intoxication at the time of the offense and her age, twenty-three. We rejected that claim and found that the petitioner had failed to make a substantial showing of the ' Miniel also argues that the jury could not adequately consider the "mitigating" evidence of his co-defendant's lesser sentence. The Supreme Court has explained that mitigating evidence involves any aspect of the defendant's character or record and a circumstance of his offense. See Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874 (1982). A co-defendant's lesser sentence does not constitute a mitigating factor as defined by the Supreme Court. Cf. United States v. Ives, 984 F.2d 649, 650 (Sth Cir.1993) (relying on the Supreme Court's capital jurisprudence, we have concluded that substantially lesser sentences received by a defendant's | coconspirators did not constitute a mitigating circumstance that might warrant downward departure from guidelines sentence). A-6 CE ESS a ae ae a denial of a federal right. Id. at 281-82. More specifically, a jury can give "full effect" to evidence of voluntary intoxication in its determination whether the defendant acted deliberately, which is contained in the first special issue. Lackey v. Scott, 28 F.3d 486, 489 (5th Cin 1994). The second special issue with respect to future dangerousness affords the jury an adequate vehicle to consider the defendant's youth. Johnson v. Texas, 509 U.S. 350, 370,113 S.Ct. 2658, 2670 (1993). With respect to the evidence of Miniel's good behavior while incarcerated, the Supreme Court has explained that no special instruction is necessary to enable the jury to consider the mitigating effect of the petitioner's evidence regarding his good prison disciplinary record. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2329-30 (1988). Finally, with respect to Miniel's religious conversion, this Court has held that the second special issue would allow the jury to give effect to mitigating evidence that a petitioner had "rededicated his life to God." Jernigan v. Collins, 980 F.2d 292, 295 (Sth Cir.1992). Accordingly, Miniel's claim that he was entitled to an instruction to allow the jury to give effect to his mitigating evidence is precluded by precedent. The Supreme Court's decision in Penry II does not indicate otherwise. Penry v. Johnson 121 S.Ct.1910 (2001). In Penry IJ, the Supreme Court found a supplemental jury instruction with respect to mitigating evidence to be "ineffective and illogical." Id. at 1924. Thus, the Court reached the same conclusion it had reached in Penry J: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." Jd. The Court did not indicate that we have misinterpreted what constitutes Penry evidence. A-7 vv We are therefore satisfied no reasonable jurist would find debatable the district court's resolution of Miniel's Penry IT claim. Accordingly, we deny COA as to this claim. B. Mitigating Evidence Not Before the Jury Miniel also contends that the special issues effectively precluded the introduction of certain other mitigating evidence including: emotional trauma resulting from the circumstances in which he learned of his adoption; his alcoholic father; a long history of severe abuse as a child; a history of drug and alcohol abuse; a pattern of suicide attempts and substance abuse that affected virtually every member of his immediate family; and evidence of impairment of his mental, academic, social, and behavioral functioning. Miniel contends that without a proper instruction the jury would have had no vehicle through which to give effect to the mitigating weight of this evidence. This Court, however, has repeatedly rejected the claim that the "Texas statutory capital sentencing scheme is . invalid as preventing or chilling defense counsel's development of mitigating evidence.” Briddle v. Scott, 63 F.3d 364, 378 (Sth Cir.1995); Crank v. Collins, 19 F.3d 172,176 (Sth Cir.1994); Black v. Collins, 962 F.2d 394, 407 (Sth Cir. 1992); May v. Collins, 948 F.2d 162,166-68 (Sth Cir.1991). Further, we have held that a "petitioner cannot base a Penry claim on evidence that could have been but was not proffered at trial." Boyd v. Johnson, 167 F.3d 907, 912 (Sth th Cir. 1999) (citing West v. Johnson, 92 F.3d 1385, 1405 (Sth Cir.1996)). We are constrained to find that Mintel has not made a substantial showing of a constitutional right with respect to his Penry claim. IV. DENIAL OF IMPARTIAL JURY. Miniel also argues that he was denied his Sixth Amendment right to an impartial jury. The Sixth Amendment right to a fair trial includes the nght to an impartial jury. A-8 Morgan v. Illinois, 504 U.S. 719, 727,112 S.Ct. 2222 (1992). In a capital sentencing context, a defendant has the right to challenge for cause a juror whose views on capital punishment 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. 412, 424,105 S.Ct. 844, 852 (1985). A state trial court's refusal of a petitioner's challenge for cause is a factual finding entitled to a presumption of correctness. Jones v. Butler, 864 F.2d 348, 362 (Sth Cir.1988). Here, the state habeas court "found based on a review of the trial record that the trial court did not err in failing to excuse venire person Patrick O'Rourke for cause because he clearly demonstrated that he understood the legal definitions, was fully capable of following the law, and fairly and impartially answering the punishment issues." The juror in question, Patrick O'Rourke, had an MBA from the University of Houston and was a comptroller for a corporation. Miniel argues that O'Rourke expressed such an extreme bias in favor of the prosecution and the death penalty that it disqualified him from being seated as an impartial juror. In support of this argument, Miniel quotes several statements O'Rourke made while being examined during voir dire. First, Miniel asserts that O'Rourke demonstrated his bias by expressing the view that he would not worry about whether the death penalty was right or wrong in a particular case because the decision to execute a convicted defendant is "more or less a mechanical process." During voir dire, in response to the prosecutor's question whether it would "bother" him to be limited to only two choices of punishment (life or death sentence), O'Rourke responded as follows: No. I mean what it is what it is. I don't - at that point it's not the point to be worrying about, whether or not it's right or wrong. It probably is good. Like I said, it's become more or less a mechanical process that you make these decisions. A-9 And this is the result of those decisions: more or less yes-or-no-type. We do not read O'Rourke's use of the phrase "more or less mechanical process" as evidencing bias. Instead, we understand O'Rourke's use of the phrase "more or less a mechanical process" as describing the Texas procedure that determines whether a life sentence or death sentence is imposed. The prosecutor explained that, under the statutory scheme, if the issues are answered affirmatively the defendant will be sentenced to death. If there is a negative answer to either question the defendant will be sentenced to life imprisonment. We note that the prosecutor informed O'Rourke that if the jury answered the special answers "yes," an "automatic death verdict" resulted. Webster's Dictionary provides that the word "automatic" is a synonym for "mechanical."* Clearly, the jurors’ answers to the special issues "automatically" determine the sentence imposed. Accordingly, we are not persuaded that O'Rourke's use of the phrase "more or less mechanical process" when describing the statutory scheme gives rise to debate regarding potential bias. Miniel also points to various other statements made by O'Rourke during voir dire in support of his claim of bias, including the following: (1) he believed that because the "justice system is just all drawn-out" and that "if you speeded up the process, a few innocent might die; but society, as whole, might be better off; (2) his "personal feelings [are] that we're probably a little too lenient ... [and] society has pretty much reined [in] its use";. (3) he did not feel "inclined" to mitigate punishment’ and thought that "society has the ? WEBSTER'S NEW RIVERSIDE UNIVERSITY DICTIONARY(1984). * We note that on the juror questionnaire O'Rourke disagreed with the following statement as an absolute: "A person is A-10 obligation to remove persons who are a danger to society as a whole." After reading the record, it is clear that O'Rourke held a strong personal preference for the death penalty as a punishment for those convicted of capital murder.‘ Nonetheless, O'Rourke's answers also indicated that he understood the difference between his "personal feelings" and what Texas law provided.* Under these circumstances, Miniel did not rebut with clear and convincing evidence the state court's finding that O'Rourke "was fully capable of following the law and fairly and impartially answering the punishment issues." Accordingly, the district court's judgment denying this claim is not debatable or wrong. Miniel further contends that O'Rourke should have been excused for cause because he could not distinguish between the term "intentional," which pertains to the mental state at issue during the guilt-innocence phase and the term "deliberate," which is contained in the first special issue at the punishment phase. The State does not dispute that a prospective juror should be excused if unable to distinguish between those two terms. This Court has noted that Texas law makes "'a distinction between intentional and deliberate always responsible for his or her acts, and there can be no circumstances that could mitigate his responsibility.” * During voir dire, the prosecutor asked O'Rourke to rate himself on a scale from 1 to 5 regarding his attitude toward capital punishment (the number 1 indicating totally opposed to the death penalty and the number 5 indicating strongly in favor of capital punishment as an appropriate penalty). O'Rourke said he would "be more towards the 4 to 5 range." ° O'Rourke stated that he understood that "the laws are laid down. You kind of have to operate within the laws." A-1] ee conduct; deliberate conduct is something more _ than intentional, but less than premeditation. [The Texas Court of Criminal Appeals has] repeatedly recognized that a venire person who cannot distinguish between intentional and deliberate conduct is impaired in his ability to consider the first special issue, and is challengeable for cause."' Green v. Johnson, 160 F.3d 1029, 1037 (Sth Cir.1998) (quoting Soria v. State, 933 S.W.2d 46, 60-61 (Tex. Crim. App. 1996)) (internal citation omitted). Nonetheless, Texas law does not require that venire persons find a "distinct" difference between the terms "intentional" and "deliberate." Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996). Instead, it "only requires that venire persons find a difference between the two terms and be able to base their answers on the evidence presented." Jd. At the beginning of O'Rourke's voir dire examination, the trial court asked him if he had any "scruples" against the death penalty in a "proper case." O'Rourke responded negatively. The trial court then instructed O'Rourke as follows: I'm going to give you a definition of "intentionally" and "deliberately." A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the - result. There's a different interpretation of the common meaning of "intentionally" and "deliberate' within the context of capital murder punishment hearing. As used in the first Special Issue, the word "deliberately" has a meaning different and distinct from the word "intentionally." The word "deliberately," as used in the first Special Issue, means a manner of doing an act characterized by or resulting from careful consideration, a conscious decision involving a thought process which embraces more than mere will to engage in the conduct. I do want to instruct you that in Texas, under the capital murder statute, there are several different types of capital murder offenses .... The punishment for [capital murder] is life or death. Those are the only two punishments. There's a difference between "intentional murder" - now, for intentional murder the punishment range is from five years to life. And in no case for just an ordinary intentional murder can a person be given [the] death penalty. Do you understand that? It has to be some of these plusses. connected, like aggravated rape, like I mentioned; you understand? A. [O'Rourke] Okay. Subsequently, the prosecutor described a hypothetical capital murder to O'Rourke and inquired whether he understood the difference between "intentional" and "deliberate" conduct in that scenario. O'Rourke replied "Not really." The prosecutor inquired as follows: "I gather if you A-13 a believe that he intentionally shot and killed somebody with the intent of killing, causing a death, you're going to answer Issue No. | yes; the legal distinction between ‘intent’ and ‘deliberate’ doesn't have a whole lot of meaning to you[?]" O'Rourke responded that the "more you talk about it, the more commingled they become. That's what I have to admit." (emphasis added). O'Rourke also stated that the "words do start crossing over a lot, yea; so I'd have to say yes." The prosecutor further inquired: "If you find him guilty, odds are that Issue 1 is going to be a big yes?" O'Rourke responded "Odds are, yeah.” As set forth above, O'Rourke described the two terms as "crossing over a lot" and becoming "more commingled." However, these descriptions do not suggest that O'Rourke found the terms identical; instead, these descriptions suggest some difference (even if not distinct) between them. Moreover, his response that the "odds" were that he would answer yes to the first special issue after finding the conduct intentional certainly does not indicate that he would do so in every case. As previously quoted, the state habeas court found "based on a review of the trial record that the trial court did not err in failing to excuse venireperson Patrick O'Rourke for cause because he clearly demonstrated that he understood the legal definitions, was fully capable of following the law and fairly and impartially answering the punishment issues." Because O'Rourke's responses indicated that he perceived some difference between the two terms and that he would base his answers on the evidence presented,° Miniel has not shown that O'Rourke was excusable for cause under Texas law. Goff v. State, 931 S.W.2d 537, 548. The district court was unpersuaded that Miniel has rebutted the state court's * O'Rourke expressly stated that he would answer the questions depending on the "facts and circumstances.” A-14 finding with clear and convincing evidence. Given the presumption afforded both the trial court and the state habeas court, we do not believe that the district court's decision was debatable or wrong. Accordingly, we find that Miniel has not made a substantial showing of the denial of a constitutional right with respect to this particular argument, and we deny COA on this basis. Finally, Miniel contends that the prosecutor's remarks to O'Rourke during voir dire minimized the jury's responsibility for determining a sentence of death in violation of Caldwell v. Mississippi, 472 U.S. 320, 104 S.Ct. 2633 (1985). Miniel argues that the prosecutor's remarks regarding the extensive, lengthy review of a death sentence by the courts would lead a juror to believe that the responsibility is delegated to the courts. In Caldwell, the Supreme Court "conclude[d] that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. 320, 328-29. Subsequently, in Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215 (1989), the Supreme Court explained that to "establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." During Miniel's state habeas proceedings, the trial court found "no evidence in the record to support [Miniel's] assertions that the State misstated the law in voir dire or impermissibly minimized the jury's responsibility for the death sentence." To evaluate a Caldwell claim, this Court looks to the "total trial scene,’ including jury selection, the guilt phase of trial, and the sentencing hearing, examining both the court's instructions and counsel's argument to the jury." Montoya v. A-15 Scott, 65 F.3d 405, 420 (5h Cir.1995) (quoting Sawyer v. Butler, 881 F.2d 1273,1286-87 (Sth Cir.1989)). The challenged remarks were made during ~the following questioning by the prosecutor: Q. A. Do you regard [the death penalty] as a deterrent to any type of crime? Well, it certainly prevents reoccurrence. It substantially impairs the one executed; I agree. But as to other individuals? Yeah, in certain - in certain instances; I don't think it deters it all the time, because sometimes it's not a thinking process; but, certainly, where it is a premedi[t]ated process, I think it would certainly be a situation. If not, someone is not thinking ahead very far. Q. As you know, as you sit here now, if some other jury in this courthouse rendered a death verdict today - there are ... two or three other capital trials going on presently. You surely know it would take years and years and years before that sentence was ever carried out. Jt would go through the Texas Court of Criminal Appeals and then the United States Supreme Court and then back through various State and Federal courts; and probably fifty judges will look at that thing before, ten years from today, they finally come down on one side or the other and say, "Yeah, you're going to A-16 execute him" or "No, You're not; retry him or something else. " Does it bother you, as a juror, knowing that whatever decision you make is going to be like an annuity policy that one day is or is not going to happen? . I think it bothers me as a citizen; not necessarily as a juror. . How does it bother you as a citizen? . I think that I think that the justice system is just all drawnout. If a few - granted, if you speeded up the process, a few innocent might die; but society, as a whole, might be better off. Q. Did you sincerely believe what you just said: that even though a few not guilty might get burned in the process, we might be better off to go ahead and speed this thing up? A. I think it's pretty fundamental to society. I think if you look back at history, you have people - you can trace it all the way back to the French Revolution, where, . certainly, many innocents were called, but perhaps the French people were better off. (emphasis indicating challenged remarks). The State argues that the challenged "comments were clearly designed to gauge whether a potential delay in the administration of the death penalty would affect O'Rourke's belief in the deterrent value of capital punishment, and were not meant to reduce O'Rourke's feelings of responsibility in assessing a sentence." This court has looked to the "context" of a prosecutor's remarks in determining a claim of Caldwell error. See Stringer v. Jackson, 862 F.2d 1108, 1111(5" Cir.1988), (opining that the petitioner had taken the prosecutor's comments out of context in that the prosecutor "was explaining to a juror that the law required that his questions be precise, not arguing that higher authorities substituted their discretion for that of the jury on the matter of punishment"), vacated and remanded on other grounds, 503 U. S. 222,112 S.Ct.1130 (1992). In the case at bar, O'Rourke, as previously indicated, was a highly ecucated prospective juror who engaged in some philosophical debate with the attorneys regarding the death penalty during voir dire As such, the State's characterization of the context in which the remarks were made is fair. The district court agreed, finding this to be a "reasonable reading of the prosecutor's comments." Moreover, the challenged remarks were made during voir dire, "greatly reducing the chance that they had any effect at all on sentencing." Byrne v. Butler, 845 F.2d 501, 508 (Sth Cir.1988). Indeed, during closing argument at the sentencing phase, the prosecutor highlighted the jury's responsibility in determining whether Miniel received a sentence of death: thank heavens the juries make these decisions. It's not right that prosecutors make decisions that people ever die. You don’t want Governments going out and saying, "This person should die, and A-18 this person should." Before anybody should get a death sentence, they should come to the juries, come to the people, and say, "Yeah, you have my permission before the Government ought to do anything.” (emphasis added). Similarly, defense counsel stated to the jury that after closing argument, "you'll be required to answer these two questions that will determine whether or not this boy dies or lives in confinement in a society where he will not, based upon the evidence beyond a reasonable doubt, be a continuing threat."” In light of the context of the remarks by the prosecutor, the proper instructions given by the court at voir dire and sentencing, the closing arguments at the sentencing phase highlighting the jury's responsibility, and O'Rourke's obvious grasp of the sentencing scheme, the statements would not lessen a juror's sense of responsibility in determining the answers to the punishment issues. In view of the deference afforded the trial court's credibility determination and the presumption accorded the state habeas court's factual finding under Section 2254(e)(1) with respect to the failure to excuse a juror for cause,® the federal habeas court was unpersuaded that Miniel rebutted the ” Counsel also stated that "[nJever, never, never, again, . . will you have the power over the life of another human being, as you have now." * We note that Miniel argues that the trial court abused its discretion in failing to excuse O'Rourke. The case Miniel cites for this proposition is a case on direct appeal to this Court. See United States v. Hall, 152 F.3d 381 (Sth Cir.1998). As previously set forth, this federal habeas case is controlled by the standards set forth in AEDPA. A-19 presumption with clear and convincing evidence. We perceive nothing in the district court's judgment which would give rise to a reasonable debate on this issue. Accordingly, we find that Miniel is not entitled to a COA with respect to this claim. V. INEFFECTIVE ASSISTANCE OF COUNSEL. Miniel next argues that trial counsel's failure to investigate and develop mitigating evidence amounted to constitutionally ineffective assistance requiring that his sentence be vacated. Under Miller-El v. Cockrell, supra, we must conduct a threshold inquiry into the merits of Miniel's claim to determine whether reasonable jurists would find the federal habeas court's resolution of this claim debatable or wrong. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), Miniel was required to prove that tnal counsel's performance failed to meet generally accepted standards of competence and that there is a reasonable probability that the outcome of his case was affected by counsel's deficient performance. While the court in Strickland recognized that there is a broad range of professionally competent conduct in the trial of any case, generally accepted standards of competence require that counsel conduct an investigation regarding the accused's background and character. Williams v. Taylor, 529 U.S. 362,128 S.Ct.1495 (2000). Miniel contends that, had his trial counsel performed even the most rudimentary investigation, he would have found ample mitigating evidence to present during the penalty phase of his trial.’ ” See the Supreme Court's recent decision in Wiggins v. Smith, No. 02-311, 2003 WL 21467222 (2003), where the court emphasized that counsel had a duty under Strickland to make a reasonable investigation to uncover mitigating evidence. A-20 During the penalty phase of Miniel's trial, the State presented five witnesses, four of whom testified regarding Miniel's past criminal history in Illinois. The fifth witness was a police officer from Humble, Texas who testified regarding Miniel's bad reputation in the community for violence. Miniel's trial counsel presented three witnesses.The first was a corrections officer who testified that Miniel had not presented any disciplinary problems during his incarceration. The second was a venireperson who had not been selected for Miniel's jury and who had visited Miniel several times in jail. The third was an assistant chaplain working at the jail who testified about Miniel's attendance at church services. None of Miniel's witnesses knew him before October 1998. Miniel contends that trial counsel should have had him examined to determine whether he suffered from a mental or psychological disorder which would have provided an additional source of mitigation. In support of his state habeas petition, Miniel submitted a neuropsychological and psychological evaluation. Miniel was diagnosed as suffering from moderate impairment of his mental, cognitive, academic, social, and behavioral functioning. According to the evaluation, he has mild to moderate brain damage. Because of these disorders, Miniel has limited ability to use good judgment or reason in making his decisions and exhibits impulsive behaviors. However, nothing in the report or in any other document submitted by Miniel suggests that counsel — was or should have been alerted to these problems. Moreover, Miniel's trial counsel, Mr. Fred Heacock, explains in his affidavit that Miniel was tested by the State's psychologist and found to be competent to stand trial and found to have been competent at the time his crime was committed. He also states that Miniel was lucid and conversant during their meetings. Under these circumstances, there is nothing in the record to suggest that-counsel should A-21 have been alerted to a potential mental problem. We have held that counsel is not constitutionally ineffective for insufficiently investigating a defendant's mental or psychological condition when there is nothing to put counsel on notice that such a condition exists. West v. Johnson, 92 F.3d 1385, 1409, n. 46 (Sth Cir.1996). Thus, the district court's resolution of the issue of whether counsel was ineffective for failing to investigate and present evidence of Miniel's mental condition is not debatable or wrong. Miniel also contends that his deprived and abusive family history would have also provided a fertile source of mitigating evidence if his trial counsel had interviewed family members. In support of this contention in his state habeas proceeding, Miniel introduced the affidavits (Miuiniel's Affidavits) of several relatives and friends: Jesse Miniel (adoptive mother), Manuel Miniel (adoptive father), Maria Juana Miniel (adoptive sister), John Miniel (adoptive brother), Maria Secoro Leblanc (adoptive sister), Mary Margaret Miniel (adoptive sister), Carmen Cantu (biological mother), Sookie Leblanc (adoptive sister), David Hernandez (cousin), and Rosa Hunt (friend). Miniel's Affidavits paint a picture of a rough childhood. Méiniel's biological mother, Carmen Cantu, abandoned him when he was only a few days old. He was adopted by his aunt and uncle, Jesse and Manuel Miniel. He grew up in a house with six adopiive siblings in Rock Falls, Illinois, and his parents often fought over his father's drinking and philandering. They also fought over Manuel's treatment of Miniel. Manuel frequently beat Miniel from the time he was very young and some of these beatings were severe. In addition to the physical abuse, the children suffered from neglect. Jesse worked at a factory at night, leaving Manuel alone with the children. Manuel admits that he was an alcoholic and that he would often go to bars when Jesse was working. He would sometimes leave his children alone in the A-22 car outside a bar for hours at a time, even during the harsh Illinois winters. Other times, he would leave them alone in the house. Jesse, Manuel and Mary Margaret spent the month before Miniel's trial in Houston. They left right after the jury was selected, purportedly at Miniel's request. In their affidavits, both Manuel and Jesse state that, while in Houston, they tried to meet with Miniel's lawyer, Mr. Heacock, but he was always too busy to see them. Consequently, the only contact they had with Heacock while in Houston was a short meeting outside of the courtroom. Jesse notes that during this brief meeting Heacock simply reassured them that things were going smoothly. Jesse and Mary Margaret both note that Heacock never asked any questions about Miniel and never asked if they were willing to testify on his behalf. Similarly, Miniel's sister, Mary Juana, states that she called Heacock at least three times before the trial, left messages each time, but he never returned her calls. Mary Juana asserts that she wanted to help in any way she could and wanted to know how Miniel was doing. In response, the State submitted the affidavit of Mr. Heacock. Heacock's statements conflict with Méiniel's Affidavits. Heacock states that he told Jesse and Mary Margaret that someone should ask the jury to spare Miniel's life and that they refused to testify. Heacock states that Mary Margaret did not testify because she did not want to get involved. This testimony is in conflict with Mary Margaret's affidavit in which she states that she was never asked to testify. It also conflicts with Jesse's affidavit in which she states that she was never asked to testify. Heacock also claims that the family left after hearing part of the prosecution's case, but Jesse and Mary Margaret both assert that they left right after the jury was selected. Jesse claims they left because Miniel asked them to do so, while Heacock suggests that they left because they "had had enough" of the A-23 ’ trial. Heacock also denies that he refused to talk to Miniel's family. Manuel, Jesse, Mary Margaret and Mary Juana each claim that they made attempts to contact Heacock and that he was too busy to make time for them or failed to return their calls. In denying Miniel's petition for habeas relief, thr. state habeas court credited Heacock's statements that he spoke to Miniel's family members who were present for part of his trial and that these family members did not want to get involved and that they did not appear to have warm feelings about Miniel. The state court also found that none of Miniel's family members indicated that they would have been available or willing to testify and that many had not been present at his trial. Based on these findings, the state habeas court concluded that Miniel failed‘ to show that there were witnesses willing to testify or how that testimony would have benefitted his defense. Thus; the state habeas court ruled that Miniel failed to establish that counsel was ineffective under Strickland. Miniel contends the federal district court erred in deferring to the state habeas court's findings because the state habeas judge (who was not the trial judge) made credibility calls to resolve conflicting affidavits. We conclude that we need not consider this argument or any other arguments related to counsel's alleged deficient performance under Strickland’s first prong. Even if the witnesses proffered by Miniel by affidavit had testified at trial about Miniel's abusive background, Miniel has not made a substantial showing that the jury would have answered the special issues any differently. Both the state habeas court and the federal district court determined that Miniel's ineffective assistance claim fails for a lack of prejudice. Based on our review, we conclude that jurists of reason could not debate the correctness of this determination. A-24 snsicesennnineatiaainiiaiiaiiliiiali ean During the punishment phase of Miniel's trial the State introduced evidence of numerous previous offenses committed by Miniel in Illinois, including aggravated battery from beating his girlfriend, another charge of aggravated battery, two unlawful use of weapons charges, a retail theft charge, and a charge of disorderly conduct. The State also presented evidence of Miniel's poor parole history and evidence that Miniel did not have a reputation as a peaceful and law abiding citizen. Also, the State produced evidence during the guilt phase that at the time of his arrest Miniel confronted the police with a shotgun and only dropped his weapon in response to his sister's pleas. When we compare Miniel's violent history including the cruel manner in which he killed Manier with the potential testimony of his family members that centered on his childhood abuse and substance abuse, we are satisfied there is no reasonable probability that the jury would have answered the special issues in a different manner." As the district court © Miniel's Affidavits are mild when compared to the evidence presented by the petitioners in Wiggins v. Smith, supra, and Williams v. Taylor, supra, in support of their ineffective assistance of counsel claims. The petitioner in Wiggins presented evidence that he was beaten, starved and sexually abused from the time he was a small child. Wiggins’ mother was a chronic alcoholic who often left him and his siblings alone at home for days at a time, forcing them to beg for food or to eat paint chips and garbage. Wiggins, slip op. at 4. Mrs. Wiggins kept her kitchen under lock and key and would beat the children when they broke into it for food to eat. Jd. On one occasion, she pressed the petitioner's hand against a hot stove burner, leading to his hospitalization. Jd. Wiggins' psycho-sexual abuse began when he was still in his mother's home. Mrs. Wiggins had sex with men while her children slept in the A-25 same bed. Jd. At the age of six, the petitioner was put in the foster care system where his physical abuse continued and sexual abuse began in earnest. He was physically abused by his first two foster mothers. Jd. His second foster father repeatedly raped and molested him. /d. The petitioner ran away from his foster home and began living on the streets at the age of sixteen. Jd. However, he eventually returned to foster care where he was again sexually abused. In one placement, his foster mother's sons allegedly gang raped him more than once. /d. After leaving the foster care system, the petitioner entered a Job Corps program. Jd. There, he was again sexually abuse, this time by his supervisor- Id. Considering the nature and the extent of abuse, the Court found that there was a reasonable probability that a jury would have returned a different verdict. Id. at 23-24. While Miniel was abused by his father, there is a paucity of evidence on the frequency or severity of the beatings. Also, there is no evidence of sexual abuse in his family or social history. He was not starved as a child, and Miniel was never shuffled in and out of foster homes. The petitioner in Williams v. Taylor, supra, also offered considerably stronger evidence of abuse than Miniel. Williams presented evidence of physical abuse, mental retardation, and strong evidence that Williams did not pose a risk of future dangerousness as long as he was incarcerated. Williams presented evidence that his parents were imprisoned for the criminal neglect of him and his siblings. Id. at 395. Williams’ juvenile records described a specific incident in which the children were taken from their parents' home and hospitalized. Id. at 395, n.19. Four of the children were drunk at the time of their removal. /d. The report describes Williams' parents' home as "a complete wreck," with human feces and urine standing in several places throughout the house and with trash and dirty dishes scattered in the kitchen. Id. These records also noted that all of the children were dirty, and none were wearing underpants. /d. Williams’ parents were A-26 concluded, "Miniel's past violent behavior would overwhelm any of the proposed mitigating evidence in determining future dangerousness... Miniel has failed to present “evidence of so intoxicated that they could not clothe the children so that they could be taken to the hospital. Jd. There was also evidence that Williams had been severely and repeatedly beaten by his father. Id. at 395. After the children were removed from their parents' home, Williams spent two years in the foster care system, including one stretch in an abusive foster home. Jd. The children were returned to their parents after their release from prison. Jd. Williams was borderline mentally retarded and did not advance past the sixth grade in school. Id. at 396. Williams also presented evidence that he had been a model prisoner during a prior incarceration. Williams' prison records contained commendations for helping to break up a prison drug ring and for returning a prison guard's missing wallet. Jd. Prison officials testified during his state habeas hearing that Williams was "among the inmates least likely to act in a violent, dangerous, or provocative way." Jd. (Internal quotations omitted). A certified public accountant who frequently visited Williams as part of the prison ministry program testified that "Williams ‘seemed to thrive in a more regimented and structured environment." Jd. This is consistent with the opinion of the State's trial expert that was revealed during Williams' state habeas proceeding that "if kept in a ‘structured environment,' [he] would not pose a future danger to society." Id. at 371. | The mitigating evidence proffered by Miniel is also mild by compariso:. to that presented by Williams. Miniel proffered no evidence tending to rebut the State's evidence that he posed a significant risk of future dangerousness. The nature and extent of the abuse Miniel experienced was far less severe than that described in Williams. Moreover, Miniel has not presented comparable evidence suggesting that retardation lessened his culpability. A-27 sufficient quality and force to raise a reasonable probability that, had it been presented to the jury, a life sentence would have resulted."" See Andrews v. Collins, 21 F.3d 612, 624 (Sth Cir.1§94), cert. denied 513 U.S. 1114, (1995); Miniel v. Cockrell, No. H-00-4361, p.114 (S.D. Tex. filed November 13, 2001). Based on the strength of the state's case, the state court determined that trial counsel did not render ineffective assistance in failing to present mitigating evidence because Miniel could not show prejudice. The federal habeas court concluded that the state court's determination of this issue is not contrary to or an unreasonable application of federal law. See 28 U.S.C. §2254(4)(1). We find nothing debatable or wrong with this conclusion. VI. CONCLUSION. For the reasons stated above we deny the petitioner's request for a COA on his claims that: (1) he was denied a jury instruction with respect to mitigating evidence and that he was precluded from introducing other mitigating evidence in violation of the Eighth Amendment; (2) he was denied his Sixth Amendment right to an impartial jury; and (3) he was denied his Sixth Amendment right to effective assistance of counsel. COA denied. A-28 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-20097 PETER J MINIEL Petitioner - Appellant ¥. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent - Appellee Appeal from the Unified States District Court for the Southern District of Texas, Houston ON PETITION FOR REHEARING EN BANC (Opinion 7/17/03, 5 Cir., : F .3d ) Before JOLLY, DAVIS and CLEMENT, Circuit Judges. PER CURIAM: ( x ) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be A-29 polled on Rehearing En Banc (FED. R. APP. P. and 5th CTR. R. 35), the Petition for Rehearing En Banc is DENIED. ( ) Treating the Petition for Rehearing Fin Banc as a Petition for Pane. Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service not having voted in favor (FED. R. App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED. ENTERED FOR THE COURT s/__W _ Eugene Davis Unite States Circuit-Judge A-30 § 2253. Appeal (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from - (A)the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B)the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). A-31- § 2254. State custody; remedies in Federal courts (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A-32 IN THE COURT OF CRIMINAL APPEALS OF TEXAS No. 42833-01 EX PARTE PETER, J. MINIEL a/k/a PETER HENRANDEZ : ON APPLICATION FOR WRIT OF HABEAS CORPUS FROM HARRIS COUNTY The order was delivered per curiam ORDER This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, VAL. On October 10, 1988, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuaut to Article 37.071, V.A.C.C.P., and the trial court, accordingly, set punishment at death. A-33 Se aes Se ae ieee Par NE Be Stee RE Se ee eon ae Applicant's conviction was affirmed on direct appeal to this Court. Miniel v. State, 831 S.w.2d 310 (Tex. Crim. App.), cert. denied, 502 U.S. 885 (1992). In the instant case, applicant presents thirty-one allegations in which he challenges the validity of his conviction and resulting sentence. The trial court enter findings of fact and conclusions of law, and recommended that the relief sought be denied. This Court has reviewed the record. The trial court's findings of fact and conclusions of law are supported by the record. Upon such basis, the relief sought is denied. IT IS SO ORDERED TIES THE 15TH DAY OF DECEMBER, 1999. PER CURIAM En banc Do Not Publish A-34 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PETER J. MINIEL, Petitioner, V. CIVIL ACTION NO. H-00-4361 JANIE COCKRELL, Respondent. MEMORANDUM AND ORDER Petitioner, Peter J. Miniel ("Miniel"), pleaded not guilty to capital murder during the commission of a robbery in the 337th District Court of Harris County, Texas. A jury convicted Miniel on October 7, 1988, and,, based on the jury's answers to Texas’ special issues, the trial court sentenced Miniel to death on October 17, 1988. On December 14, 2000, Miniel filed a Petition for Writ of Habeas Corpus in this court (Docket Entry No. 7). Pending before the court is the Motion of Respondent, Janie Cockrell (Cockrell), for Summary Judgment (Docket Entry No. 15). The court will grant Cockrell's motion and deny Miniel's petition for writ of habeas corpus. I. Background On May 8, 1986, Miniel and James Warren Russell, Jr., drove to Galveston from Houston. See State of Texas v. Peter J. Miniel, No. 450033, Trial Record vol. 25, p. 96 (337th Dist. Court, Harris County, Tex., October 5, 1988). A-35 Miniel and Russell drove around Galveston drinking beer they purchased with a stolen credit card. See Trans. vol. 25, at p. 96. While driving by the seawall, they saw two men rolling a joint of marijuana. See Trans. vol. 25, at pp. 97-98. Miniel told the two men that he would buy gasoline and beer for them in exchange for marijuana. See Trans. vol. 25, at p. 98. The two men, Sammy Rogers and Chris Miln, told Miniel to follow them back to Houston to get some marijuana. See Trans. vol. 25, at pp. 99-100. When the group arrived at an apartment in Houston, Peter Manier was just getting out of the shower. See Trans. vol. 25, at pp. 100-01. After a while Miniel, Miln, and Rogers left to find some marijuana and to take Miln home. See Trans. vol. 26, at p. 102. When Miniel, and Rogers returned from acquiring marijuana, they all sat around smoking joints and drinking beer. See Trans. vol. 25, at pp. 102--03. Rogers eventually passed out. See Trans. vol. 25, at p. 104. Miniel then told Russell that he thought Manier had money and that they should rob him. See Trans. vol. 25, "at p. "104. 'Miniel 'concocted a plan 'where Russell would - pretend to -- - procure some cocaine, distracting Manier so that they could render him unconscious. See Trans. vol. 25, at pp. 104-05. Russell went out to his car, pretending to retrieve cocaine. See Trans. vol. 25, at p. 105. When he returned, he found Miniel and Manier in Manier's bedroom. See Trans. vol. 25, at pp. 105-06. Russell saw Manier clean a small mirror to use in snorting cocaine. See Trans. vol. 25, at pp. 105-06. While Manier leaned over the mirror, Miniel struck him in the back of the head with a beer mug. See Trans. vol. 25, at p. 106. Manier fell to his knees, covering his head while Miniel continued to strike him. See Trans. vol. 25, at pp. 106-07. After Manier fell on his side, Russell hit him several times in the head with a shock absorber that had been sitting on a table. See Trans. vol. 25, at pp. 106-07. Miniel told Russell that he was not hitting him hard enough and then used the shock absorber himself. See Trans. vol. 25, A-36 at pp. 107-08. When Miniel found that he could not knock out Manier, he told Russell to stab him with a small knife. See Trans. vol. 25, at p. 108. Russell was unable to calry through with this order, and Miniel himself stabbed Manier numerous times. See Trans. vol. 25, at pp. 108-09. Russell then held Manier while Miniel attempted to slit his throat. See Trans. vol. 25, at p. 109. Finally, Miniel attempted to asphyxiate him by shoving a blanket down his throat. See Trans. vol. 25, at pp. 109-10. Miniel took Manier's s wallet and became angry when he discovered that they killed a man for only twenty dollars. See Trans. vol. 26, at pp. 249, 315. They then searched the apartment for drugs or money. See Trans. vol. 26, at pp. 249- 50. Miniel and Russell left the apartment, stealing Manier's stereo equipment. See Trans. vol. 25, at pp. 110-14. They washed off Manier's blood and hid the knife. See Trans. vol. 25, at pp. 114-15. Miniel and Russell then went to Burger King to eat hamburgers. See Trans. vol. 25, at pp. 116-17. Miniel was eventually arrested at his sister's apartment in Chicago, Illinois. The police recovered some of Manier’s stereo equipment from another individual in the apartment building. At a Chicago police department substation, Miniel made an oral statement confessing to Manier’s murder. Miniel's trial began before the 337th District Court of - Harris County on October 5, 1988.' Miniel pleaded not guilty. See Trans. vol. 25, at p. 15. Miniel did not call any defense witnesses in the guilt/innocence phase. On October 10, 1988, the jury found Miniel guilty of capital murder. See Trans. vol. 27, at pp. 511-12. ' Fred M. Heacock and Al Thomas represented Miniel at trial. For the most part, the court will refer to the attorneys conjunctively as "trial counsel." A-37 During the punishment phase of Miniel's trial, the State reintroduced all the evidence from the guilt/innocence phase. See Trans. vol. 28, at p. 12. The State also introduced evidence of Miniel's many prior offenses in Illinois. The State introduced evidence of Miniel's s guilty plea to a charge of aggravated battery from beating his girlfnend with a wooden spoon and a motorcycle chain. See Trans. vol. 28, at pp. 35, 59. The State also introduced another previous charge of aggravated battery where Miniel beat someone with numchucks. See Trans. vol. 28, at pp. 4243. Other offenses adduced by the State included two unlawful-use-of-weapons charges, see Trans. vol. 28, at pp. 37-38; a retail theft charge, see Trans. vol. 28, at p. 47; and a charge of disorderly conduct, see Trans. vol. 28, at p. 48. The State also presented evidence of Miniel's poor parole history. See Trans. vol. 28, at pp. 37-38, 48-49. The State demonstrated that Miniel did not have a reputation as a peaceful and law-abiding person. See Trans. vol. 28, at pp. 45, 63, 71. Miniel called three witnesses in the punishment phase. Darryl Hendrichson, a Harris County Sheriffs Department employee in the Harris County jail, testified about Miniel's behavior while incarcerated. See Trans. vol. 28, at pp. 78-79. Hendrichson testified that Miniel had never presented a disciplinary problem during his incarceration before trial. See Trans. vol. 28, at p. 80. Carol Ruth Weed, a prospective juror in Miniel's case, also testified in his behalf. After she was dismissed from jury service, Weed felt that she had made a connection with Miniel . See Trans. vol. 28, at p. 90. Weed visited him in jail every week while he awaited trial. See Trans. Vol. 28, at p. 87. They spoke mostly about religion and she opined that Miniel's religious inclination was genuine, not "foxhole religion." See Trans. vol. 28, at pp. 87-88. Finally, the defense called Juan Cortez, an assistant Harris County chaplain. See Trans. vol. 28, at pp. 96-97. Cortez testified that Miniel attended church service almost every week while incarcerated. See Trans. vol. 28, at pp. 98- 99. Cortez. testified that Miniel's religious devotion seemed sincere. See Trans. vol. 28, at pp. 100-01. Cortez testified that those in society who accept their guilt and seek to be an instrument for good in society should be given a second chance. See Trans. vol. 28, at p. 102. The jury retired to consider the special issues on October 11, 1988.7 On October 12, 1988, the jury returned affirmative answers to the special issues, see Trans. vol. 28, at pp. 159-60, and the trial court sentenced Miniel to death. See Trans. vol. 28, at pp. 162-63. Miniel appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed on January 22, 1992. See Miniel v. State, 831 S.W.2d 310 (Tex. Crim. * The special issues were as follows: Special Issue No. 1 Was the conduct of the defendant, Peter J. Miniel, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result? Special Issue No. 2 Is there a probability that the defendant, Peter J. Miniel, would commit criminal acts of violence that would constitute a continuing threat to society? Trans. vol. I-A, at pp. 338-39. A-39 App. 1992).> Miniel sought a rehearing, which the court denied on April 15, 1992. Miniel then filed a petition for wnit of certiorari in the Supreme Court of the United States, which was denied on October 5, 1992. See Miniel v. Texas, 506 U.S. 885 (1992). Miniel filed an application for writ of habeas corpus in state court on June 15, 1993. On November 8, 1996, Miniel filed an amended application. The State did not respond to Miniel's application until March 9, 1999. The state habeas court did not hold an evidentiary hearing on Miniel's claims. On July 28, 1999, the state habeas court entered detailed findings of facts and conclusions of law recommending that relief be denied. See Ex parte Miniel, No. 450033-A, Findings of Fact, Conclusions of Law and Order (337th Dist. Ct., Harris County, Tex., July 28, 1999). The Court of Criminal Appeals denied relief on December 15, 1999. See Ex parte Miniel, No. 42,833-01 (Tex. Crim. App. Dec. 15, 1999). Miniel filed a petition for writ of habeas corpus in this court on December 14, 2000. See Petition for Writ of Habeas Corpus (Docket Entry No. 7). Miniel alleges that: 1) his trial counsel rendered ineffective assistance in violation of the Sixth Amendment because (a) they failed to investigate and develop mitigating circumstances relevant to his life, specifically his family background and social, medical, and mental history (pp. 4-14, 19-30); (b) they made mistakes in jury selection and voir dire examination of prospective jurors (pp. 30- 41); * Robert Rodriguez represented Miniel on direct appeal. A-40 (2) (3) (c) they failed to object to the State's suggestion that the law of the parties applied to the punishment phase of trial (pp. 42-48) ; (d) they entered into an agreement not to cross- examine an important witness (pp. 48-51); (e) they failed to correct legal mischaracterizations __ by the State (j. 51) ; (f) they confessed Miniel's guilt in closing arguments (pp. 51-55) ; (g) they emphasized the graphic nature of the crime (pp. 55-56) ; (h) they failed to object to the introduction of prejudicial evidence (pp. 56-57) ; (i) they failed to effectively ross-examine witnesses (p. 57); (J) they failed to offer any evidence to support the theory that Miniel's conviction was involuntary (pp. 57-58) ; (k) they failed to adequately plead for his life during closing arguments (p. 58) ; the State presented false testimony at trial (pp. 59-64) ; the trial court failed to preserve his Sixth Amendment rights by not inquiring into his dissatisfaction with trial counsel's representation (pp : 65 -68 ) ; A-41 (4) (5) (6) (7) (8) (9) (10) (11) (12) Texas' system for appointing capital counsel violated the Sixth Amendment guarantee of effective representation (pp. 69-74) ; trial counsel's alleged agreement not to cross- examine a prosecutorial witness violated Miniel's s right to confront witnesses against him (pp. 75-77) ; the State engaged in a pattern of misconduct (pp. 78-82) ; the trial court erroneously refused to excuse venireperson Patrick O'Rourke (pp. 83-90) ; the trial court erred in excusing venireperson Kathy Hernandez for cause (pp. 91-97) ; the trial court erroneously refused to excuse venirepersons Frederick Jones, Joseph Foster, Jr., and Dorothy Campbell for cause (pp. 98- 106) ; the State misled the jury into believing that the law of the parties applied at the sentencing phase of trial (pp. 107-14) ; the trial court erroneously failed to instruct the jury that the law of the parties did not apply at the punishment phase (pp. 115-16) ; the trial court's failure to instruct the jury on the vague special issues violated the Constitution (pp. 117130) ; (13) the jury instructions misled the jury concerning the effect of a "no" vote by a single juror (pp. 131-33) ; (14) the admission of Miniel's s coerced confession violated the Fifth and Fourteenth Amendments (pp. 134-38) ; (15) the trial court violated his right to a speedy trial by delaying his trial (pp. 139-41) ; (16) the special issues precluded the presentation and consideration of mitigating evidence (pp. 142- 48) ; (17) the trial court unconstitutionally refused to give his requested instruction on mitigation (pp. 149- 50) ; (18) the trial court violated his due process rights by failing to require the jury to consider prior unadjudicated offenses only if proved beyond a reasonable doubt (pp. 151-54) ; (19) the trial court violated the equal protection clause by allowing the State to admit unadjudicated offenses in the punishment phase (pp. 155-58) ; (20) the trial court violated the Constitution by failing to instruct the jury about Texas’ parole law (pp. 159-63) ; (21) the special issues unconstitutionally required the jury to consider whether there was a "probability" that Miniel would commit future violent acts (pp. 164-65) ; A-43 ee ee eee (22) the Texas rule requiring the expenditure of peremptory challenges to preserve voir dire error violated the equal protection clause (pp. 166-67) ; (23) the Texas capital sentencing _ statute unconstitutionally violated his right to have the jury determine his fate (pp. 168-69) ; and (24) his appellate counsel rendered _ ineffective assistance by (a) failing to raise voir dire errors on direct appeal (pp. 170-71) ; (b) failing to raise issues relating to Miniel's dissatisfaction with trial counsel (p. 171); and (c) failing to raise a speedy trial claim (p. 171). See Petition for Wnt of Habeas Corpus (pages indicated) (Docket Entry No. 7). Cockrell argues, that she is entitled to summary judgment on Miniel's claims. Cockrell contends that several of Miniel's claims are barred under the procedural default doctrine. Cockrell also argues that, under the standard of review applicable to state court determinations on habeas review, the federal court should not grant habeas relief. Additionally, Cockrell argues that Miniel's s claims are meritless. A-44 II. Standard of Review Because Miniel filed his federal petition for writ of habeas corpus on December 14, 2000, it is subject to review under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective DeathPenalty Act of 1996 ("AEDPA") , Pub. L. No. 104-132, 110 Stat. 1214. See Nobles v. Johnson, 127 F.3d 409, 415 (Sth Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Under the AEDPA, a court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court decision: (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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (West Supp. 1999). Under the AEDPA, federal review of a state court determination differs depending on whether the issue is one of law, one of fact, or a mixed question of law and fact. See Williams v. Cain, 229 F.3d 468, 474 (Sth Cir. 2000), cert. denied, s (2001). For questions of law or mixed questions of law and fact adjudicated on the merits in state court, this court may grant federal habeas relief under 28 U.S.C. 2254 (d) (1)only if the state court decision was contrary to, or-involved an unreasonable application of, clearly established Supreme Court precedent. See Martinv. Cain, 246 F.3d 471, 475 (Sth Cir.), cert. denied, S.Ct. (2001). A state court decision will be contrary to the Supreme Court's clearly A-45 iii Ti a ee eee established precedent "if the state court either ‘applies a rule that contradicts the governing law set forth in (the Supreme Court],' or ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [its] precedent. I" Penry v. Johnson, U.S. __—, 121 S. Ct. 1910, 1918 (2001) (quoting Terry Williams v. Taylor, 529 U.S. 362, 406 (2000)).* The "unreasonable application" standard permits federal habeas relief only if a state court decision "identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case." Terry Williams, 529 U.S. at 406."In applying this standard, we must decide (1) what was the decision of the state courts with regard to the questions before us and (2) whether there is any established federal law, as explicated by the Supreme Court, with which the state court decision conflicts." Hoover v. Johnson, 193 F.3d 366, 368 (Sth Cir. 1.99-9). "[E] ven if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is, also objectively unreasonable." Penry, 121 S. Ct. at 1918; see also Gardner v. Johnson, 247 F.3d 551, 560 (Sth Cir. 2001) (stating that the AEDPA mandates relief in the case of a state court decision "that is not merely wrong but is so wrong that it is 'unreasonable""). * On April 18, 2000, the Supreme Court issued two separate opinions involving the AEDPA, both originating in Virginia, in which the petitioners had the same surname. Terry Williams v. Taylor, 529 U.S. 362 (2000), involves § 2254(d) (1) and Michael Williams v. Taylor, 529 U.S. 420 (2000), involves S 2254 (e) (2). To avoid confusion, this court will include the full name of the petitioner when citing these two cases. A-46 The AEDPA precludes federal habeas relief on factual issues unless the state court's adjudication of the merits was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. 2254(d)(2). The state court's factual determinations are presumed correct unless rebutted by "clear and convincing evidence.” 28 U.S.C. § 2254(e) (1). III. Procedural Bar Cockrell argues that several of Miniel's claims are procedurally barred.. "[A] federal court may not consider a state prisoner's federal habeas claim when the state court based its rejection of that claim on an adequate and independent state ground.” Martin v. Maxey, 98 F.3d 844, 846 (Sth Cir. 1996) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The Supreme Court has held that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.° "This doctrine ensures that federal courts give proper respect to state procedural rules." Glover v. * To demonstrate a fundamental miscarriage of justice in this context, the petitioner must show that he is actually innocent of the crime of which he was convicted. See Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992). Miniel makes no A-47 Cain, 128 F.3d 900, 902 (Sth Cir. 1997) (citing Coleman, 501 U.S. at 750-51), cert. denied, 523 U.S. 1125 (1998) ; see also Edwards v. Carpenter, 529 U.S. 446, 450 (2000) (finding the cause and prejudice standard to be "grounded in concerns of comity and federalism"). A claim may also be procedurally barred if it has not been reviewed by the state courts. See Horsely v. Johnson, 197 F.3d 134, 137 (Sth Cir. 1999). "A procedural default . . . occurs when a prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred;"" Nobles, 127 F.3d at 420 (quoting Coleman, 501 U.S. at 734 n.1).° Texas courts considering unexhausted claims on a successive habeas petition would find them procedurally defaulted. Article 11.071 § 5(a) of the Texas Code of Criminal Procedure prohibits a Texas court from considering a successive habeas petition on the merits unless the petition satisfies one of the narrowly-defined exceptions. The Fifth Circuit has held that article 11.071 is an adequate state procedural bar, finding that the rule is strictly and regularly enforced. See Barrientes v. Johnson, 221 F.3d 741, 759 (Sth Cir. 2000), cert. dismissed, 121 S. Ct. 902 (2001) ; Muniz v. attempt to show that he was actually innocent of Manier's murder. ° "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254 (b) (2). This court, however, cannot grant relief under the AEDPA if a petitioner has failed to exhaust the available state court remedies. See 28 U.S.C.§ 2254 (b) (1) (A). A-48 Johnson, 132 F.3d 214, 221 (5th Cir.) , cert. denied, 523 U.S. 1113 (1998). The court will consider Cockrell's procedural default defense as the court addresses each claim. IV. Analysis A. Russell's Testimony In his second claim for relief Miniel alleges that the State presented false evidence at trial and suppressed exculpatory evidence from him.’ Miniel bases this claim on Russell's trial testimony. Specifically, Miniel points to Russell's testimony concerning their plan to steal from Manier. See Trans. vol. 25, at pp. 104-05. The State used Russell's testimony to demonstrate that Miniel killed Manier in the course of a robbery.® * * * * * within those cases in which a defendant must show "specific prejudice to his defense." Doggett, 505 U.S. at 656. ’ The operative facts underlying Miniel's first claim for relief, that trial counsel rendered ineffective assistance of counsel, echo those raised as substantive constitutional violations. For the sake of economy, the court will address the substantive claims first, and will then address Miniel's ineffective assistance claims. * In virtually every claim, Miniel argues that his claims arise under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The (continued...) A-49 Miniel fails to demonstrate "actual prejudice in his ability to prepare and present his defense." Id. Miniel has not shown that any witnesses died or disappeared during the wait. Miniel only argues that "fading memories" impaired his ability to crossexamine witnesses. Miniel offers no concrete evidence of impaired recollection. Nor does Miniel point to any testimony tainted by the passage of time. Miniel has failed to show "actual prejudice" resulting from the delay. This factor we [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/documents/brief%3Amicro_IA40386001_0763%3A1. Public record. Not legal advice.