Dowthitt v. Johnson

Opinion

Revised November 21, 2000 1 IN THE UNITED STATES COURT OF APPEALS 2 FOR THE FIFTH CIRCUIT

3 ____________________

4 No. 00-20159 5 ____________________

6 DENNIS THURL DOWTHITT 7 Petitioner - Appellant 8 v.

9 GARY L. JOHNSON, DIRECTOR, 10 TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 11 INSTITUTIONAL DIVISION

12 Respondent - Appellee

13 _________________________________________________________________

14 Appeal from the United States District Court 15 for the Southern District of Texas 16 _________________________________________________________________ 17 October 16, 2000

18 Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit 19 Judges.

20 KING, Chief Judge: 21 Texas death row inmate Dennis Thurl Dowthitt appeals from 22 the district court’s denial of habeas corpus relief. In order to 23 obtain review of his claims, Dowthitt seeks a certificate of 24 appealability (COA) from this court, pursuant to 28 U.S.C. 25 § 2253(c)(2). We deny Dowthitt’s request for a COA.

26 I. FACTUAL AND PROCEDURAL BACKGROUND 27 At Dowthitt’s trial, the State presented evidence that 28 Dowthitt and his son, Delton Dowthitt (“Delton”), age 16, picked 29 up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on 30 June 13, 1990 in a bowling alley parking lot. According to 31 Delton’s testimony at Dowthitt’s trial, Dowthitt sexually 32 assaulted Gracie with a beer bottle and cut her throat with a 33 knife.1 Meanwhile, Delton strangled Tiffany with a rope.2 34 Following a jury trial, Dowthitt was convicted of the murder 35 of Gracie Purnhagen committed in the course of aggravated sexual 36 assault. On October 9, 1992, based on the jury’s answers, 37 Dowthitt was sentenced to death for capital murder. The Texas 38 Court of Criminal Appeals affirmed his conviction and sentence on 39 June 26, 1996. See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. 40 App. 1996). 41 On August 18, 1997, Dowthitt filed a state petition for 42 habeas relief. The state district court, on March 6, 1998, 43 entered findings of fact and conclusions of law and recommended 44 that habeas relief be denied. The Court of Criminal Appeals, 45 adopting most of the findings and conclusions, denied Dowthitt

1

The evidence indicated that Dowthitt cut Gracie’s throat once before and once after the sexual assault. Gracie was still alive during the assault.

2

Delton pled guilty to the murder of Tiffany Purnhagen.

Pursuant to a plea agreement, he was sentenced to 45 years and testified against his father at trial. In addition, the second murder charge for Gracie’s death was dropped.

3

46 habeas relief. See Ex Parte Dowthitt, No. 37,557 (Tex. Crim. 47 App. Sept. 16, 1998). On April 19, 1999, the United States 48 Supreme Court denied Dowthitt’s petition for a writ of 49 certiorari. See Dowthitt v. Texas, 119 S. Ct. 1466 (1999). 50 After obtaining appointment of counsel and a stay of 51 execution, Dowthitt filed his petition for habeas corpus relief 52 in federal district court on December 30, 1998. In response to 53 Dowthitt’s amended petition on February 12, 1999, the State moved 54 for summary judgment. The district court, on January 7, 2000, 55 held an evidentiary hearing on Dowthitt’s actual innocence claim. 56 On January 27, 2000, the district court filed a detailed and 57 careful Memorandum and Order and entered a final judgment, 58 denying Dowthitt habeas relief on all claims, dismissing his case 59 with prejudice, and denying Dowthitt’s request for a COA. After 60 the district court denied his Rule 59(e) motion, Dowthitt timely 61 appealed to this court, requesting a COA and reversal of the 62 district court’s judgment denying habeas relief.

63 II. DISCUSSION 64 Because Dowthitt’s petition for federal habeas relief was 65 filed after April 24, 1997, this appeal is governed by the Anti- 66 Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. 67 L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 68 773, 775 (5th Cir. 2000) (“Petitioners whose convictions became

4

69 final before the effective date of the AEDPA were given a grace 70 period of one year to file their federal habeas petitions, 71 rendering them timely if filed by April 24, 1997.”). Under 72 AEDPA, a petitioner must first obtain a COA in order for an 73 appellate court to review a district court’s denial of habeas 74 relief. See 28 U.S.C. § 2253(c)(1)(A). 75 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue 76 unless the petitioner makes “a substantial showing of the denial 77 of a constitutional right.” This standard “includes showing that 78 reasonable jurists could debate whether (or, for that matter, 79 agree that) the petition should have been resolved in a different 80 manner or that the issues presented were adequate to deserve 81 encouragement to proceed further.” Slack v. McDaniel, 120 S. Ct. 82 1595, 1603-04 (2000) (internal quotations and citations omitted); 83 see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000). 84 The formulation of the COA test is dependent upon whether 85 the district court dismisses the petitioner’s claim on 86 constitutional or procedural grounds. If the district court 87 rejects the constitutional claims on the merits, the petitioner 88 “must demonstrate that reasonable jurists would find the district 89 court’s assessment of the constitutional claims debatable or 90 wrong.” Slack, 120 S. Ct. at 1604. On the other hand,

91 [w]hen the district court denies a habeas petition on 92 procedural grounds without reaching the prisoner’s 93 underlying constitutional claim, a COA should issue 94 when the prisoner shows, at least, that jurists of 95 reason would find it debatable whether the petition

5

96 states a valid claim of a denial of a constitutional 97 right and that jurists of reason would find it 98 debatable whether the district court was correct in its 99 procedural ruling.

100 Id. (emphasis added); see also Hernandez v. Johnson, 213 F.3d 101 243, 248 (5th Cir. 2000). 102 Furthermore, “the determination of whether a COA should 103 issue must be made by viewing the petitioner’s arguments through 104 the lens of the deferential scheme laid out in 28 U.S.C. 105 § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 106 2000). We give deference to a state court decision for “any 107 claim that was adjudicated on the merits in State court 108 proceedings” unless the decision was either “contrary to, or 109 involved an unreasonable application of, clearly established 110 Federal law, as determined by the Supreme Court of the United 111 States,” 28 U.S.C. § 2254(d)(1), or the decision “was based on an 112 unreasonable determination of the facts in light of the evidence 113 presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). 114 The “contrary to” requirement “refers to the holdings, as 115 opposed to the dicta, of . . . [the Supreme Court’s] decisions as 116 of the time of the relevant state-court decision.” (Terry) 117 Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). The inquiry 118 into whether the decision was based on an “unreasonable 119 determination of the facts” constrains a federal court in its 120 habeas review due to the deference it must accord the state 121 court. See id.

6

122 Under the “contrary to” clause, a federal habeas court 123 may grant the writ if the state court arrives at a 124 conclusion opposite to that reached by . . . [the 125 Supreme Court] on a question of law or if the state 126 court decides a case differently than . . . [the 127 Supreme Court] has on a set of materially 128 indistinguishable facts. Under the “unreasonable 129 application” clause, a federal habeas court may grant 130 the writ if the state court identifies the correct 131 governing legal principle from . . . [the Supreme 132 Court’s] decisions but unreasonably applies that 133 principle to the facts of the prisoner’s case.

134 Id. 135 Section 2254(d)(2) speaks to factual determinations made by 136 the state courts. See 28 U.S.C. § 2254(e)(1). While we presume 137 such determinations to be correct, the petitioner can rebut this 138 presumption by clear and convincing evidence. See id. Absent an 139 unreasonable determination in light of the record, we will give 140 deference to the state court’s fact findings. See id. 141 § 2254(d)(2). 142 Dowthitt seeks a COA from this court on the following 143 issues3: (1) actual innocence, (2) ineffective assistance of 144 counsel, (3) admission of DNA evidence without a factual 145 predicate, (4) State misconduct, (5) failure to instruct the jury

3

Dowthitt states in his opening brief that he does not appeal all of the issues decided by the district court; he also states that he does not appeal all of the sub-issues within the issues he does appeal. As such, he preserves only the briefed issues for this appeal. See 28 U.S.C. § 2253(c)(3) (“certificate of appealability . . . shall indicate which specific issue or issues” are the basis for relief); see also Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that issues not briefed on appeal are deemed waived).

7

146 on lesser-included offenses, and (6) the district court’s limited 147 evidentiary hearing.

148 A. Actual Innocence 149 “Claims of actual innocence based on newly discovered 150 evidence have never been held to state a ground for federal 151 habeas relief absent an independent constitutional violation 152 occurring in the underlying state criminal proceeding.” Herrera 153 v. Collins, 506 U.S. 390, 400 (1993).4 Rather, a claim of actual 154 innocence is “a gateway through which a habeas petitioner must 155 pass to have his otherwise barred constitutional claim considered 156 on the merits.” Id. at 404. In order for Dowthitt to obtain 157 relief on this claim, “the evidence must establish substantial 158 doubt about his guilt to justify the conclusion that his 159 execution would be a miscarriage of justice unless his conviction 160 was the product of a fair trial.” Schlup v. Delo, 513 U.S. 298, 161 316 (1995) (emphasis added). 162 The Herrera Court did assume, arguendo, “that in a capital 163 case a truly persuasive demonstration of ‘actual innocence’ made 164 after trial would . . . warrant habeas relief if there were no 165 state avenue open to process such a claim.” 506 U.S. at 417. 166 However, this circuit has rejected this theory. See Graham v.

4

“This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact.” Id.

8

167 Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 120 S. 168 Ct. 1830 (2000). 169 Thus, Dowthitt must first raise substantial doubt about his 170 guilt, which would then cause us to examine any barred 171 constitutional claims.5 Dowthitt’s main argument in support of 172 his innocence is that his son Delton confessed to killing 173 Gracie.6 Dowthitt bases this claim on the following: a signed 174 declaration by his nephew Billy Sherman Dowthitt that Delton told 175 him that “Delton killed his girlfriend”; an unsigned affidavit of 176 David Tipps, a former prison inmate in Delton’s prison block, 177 stating that Delton claimed to have killed both girls; a signed 178 affidavit by Joseph Ward, a defense investigator, who states he 179 drew up the affidavit that Tipps later refused to sign out of 180 fear for himself; a signed affidavit of James Dowthitt, 181 Dowthitt’s brother, that his son Billy told him that Delton said 182 he had killed both girls; and Dowthitt’s own written proffer of 183 innocence.

5

See section II.C, infra, which discusses a procedurally barred claim.

6

In his reply brief, Dowthitt also simply lists other arguments in support of his actual innocence claim, such as Delton’s prior violent conduct and the lack of physical evidence.

However, because he did not address these sub-issues in his opening brief, we will not consider them. See Pyles v. Johnson, 136 F.3d 986, 996 n.9 (5th Cir. 1998) (“An appellant abandons all issues not raised and argued in his initial brief on appeal.”

(internal quotations and citation omitted)); see also Trevino v.

Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that inadequately argued issues are considered waived).

9

184 Not finding it necessary to conduct an evidentiary hearing, 185 the state habeas court rendered its decision based upon the 186 record. The court found that Delton “did not recant his trial 187 testimony” that Dowthitt killed Gracie and that Billy “never 188 stated that Delton . . . said he killed both girls.” 189 The federal district court did, however, hold an evidentiary 190 hearing on Dowthitt’s actual innocence claim. Delton again 191 testified in this evidentiary hearing that his father killed 192 Gracie and that he never told Billy otherwise. The court held 193 Dowthitt’s other proffered statements inadmissible hearsay and 194 found that even if Billy’s statement were to be considered, they 195 failed to provide any convincing account of the events. 196 Determining, in addition, that the state findings were not 197 unreasonable, the district court held that Dowthitt’s claim of 198 actual innocence fell far short of the threshold set by the 199 Supreme Court in Herrera. 200 We conclude that Dowthitt has not raised “substantial doubt” 201 as to his guilt. Dowthitt’s newly discovered evidence consists 202 solely of affidavits, and these affidavits are “particularly 203 suspect . . . because they consist of hearsay.” Herrera, 506 204 U.S. at 417. What Delton allegedly told others is hearsay and 205 does not fall under any exception to the hearsay rule. Cf. FED. 206 R. EVID. 804(b)(3) (statement against interest exception requires 207 that the declarant be unavailable, and in this case, Delton, far 208 from being unavailable, testified at trial and at the district

10

209 court’s evidentiary hearing). Not only do Dowthitt’s proffers 210 consist of hearsay (some with multiple levels), one is also 211 unsigned. As such, this evidence is not nearly strong enough to 212 raise a substantial doubt about Dowthitt’s guilt. Cf. Schlup, 213 513 U.S. at 331 (finding that the “sworn testimony of several 214 eyewitnesses that . . . [the petitioner] was not involved in the 215 crime” raised a sufficient issue that required an evidentiary 216 hearing). 217 In addition, even if we were to consider Billy’s hearsay 218 affidavit, we agree with the State that it does not possess 219 sufficient “indicia of reliability” due to its inconsistency with 220 the physical evidence. The physical evidence established that 221 Gracie (who was considered Delton’s girlfriend) died from knife 222 wounds to her throat after being sexually assaulted, while her 223 younger sister Tiffany was strangled. Billy, however, states 224 that Delton said he strangled his girlfriend, while Dowthitt 225 sexually assaulted and stabbed the “little girl.” As this does 226 not comport with the physical evidence, Billy’s statements do not 227 provide us with a convincing account of the events. 228 Furthermore, what Dowthitt puts forth is actually not “newly 229 discovered” evidence. He presented the substance of the 230 affidavits at his trial. In particular, as the state habeas 231 court found, “Delton’s first confession, in which he stated that 232 he killed both girls, was admitted in evidence.” Delton was 233 cross-examined as to his plea agreement and his prior

11

234 inconsistent confession.7 Thus, the jury had the opportunity to 235 take into account both versions of the murders and determine 236 which was more credible. The jury, with the ability to listen to 237 live testimony, was in a better position to judge the credibility 238 of the witnesses and the accounts of the events; absent a lack of 239 support in the record, we will not second guess their 240 determination. See United States v. Ramos-Garcia, 184 F.3d 463, 241 466 (5th Cir. 1999) (stating that the jury evidently did not 242 believe the alternative explanation of the events and that the 243 court would “‘not second guess the jury in its choice’”); United 244 States v. Kaufman, 858 F.2d 994, 1004 (5th Cir. 1988) (finding 245 that it was a “serious mistake . . . to second-guess judgments 246 that . . . [were made] firsthand”). 247 We find that Dowthitt’s proffered evidence establishing his 248 actual innocence fails to raise a substantial doubt as to his 249 guilt.

250 B. Ineffective Assistance of Counsel 251 Dowthitt must make a substantial showing of a denial of his 252 Sixth Amendment right to counsel to obtain a COA. His 253 ineffective assistance of counsel claim meets the threshold

7

During the State’s rehabilitation of Delton’s testimony, Delton’s attorney testified as to a prior consistent statement:

that, prior to the plea agreement, Delton had told him that his father killed Gracie. The state court, on direct appeal, found that the admission of the attorney’s testimony was not erroneous.

12

254 question under AEDPA, § 2254(d)(1), that the rule of law be 255 clearly established at the time of the state court conviction in 256 1992. This is so because the merits of an ineffective assistance 257 of counsel claim are governed by the well-established rule of 258 Strickland v. Washington, 466 U.S. 668 (1984). Dowthitt must 259 establish both prongs of the Strickland test in order to prevail. 260 First, he “must show that counsel’s performance was deficient.” 261 Id. at 687. Second, he “must show that the deficient performance 262 prejudiced . . . [his] defense.” Id. 263 Deficient performance is established by showing “that 264 counsel’s representation fell below an objective standard of 265 reasonableness.” Id. at 688; Hernandez v. Johnson, 213 F.3d 243, 266 249 (5th Cir. 2000). Moreover, as the Supreme Court has 267 counseled, a “fair assessment of attorney performance requires 268 that every effort be made to eliminate the distorting effects of 269 hindsight . . . and to evaluate the conduct from counsel’s 270 perspective at the time.” Strickland, 466 U.S. at 689. Thus, 271 our scrutiny of counsel’s performance is highly deferential. See 272 id. We must be particularly wary of “argument[s] [that] 273 essentially come[] down to a matter of degrees. Did counsel 274 investigate enough? Did counsel present enough mitigating 275 evidence? Those questions are even less susceptible to judicial 276 second-guessing.” Kitchens v. Johnson, 190 F.3d 698, 703 (5th 277 Cir. 1999).

13

278 Prejudice ensues when “there is a reasonable probability 279 that, but for the counsel’s unprofessional errors, the result of 280 the proceedings would have been different.” Clark v. Johnson, 281 --- F.3d ----, 2000 WL 1285270, *7 (5th Cir. 2000) (internal 282 quotations omitted) (quoting Strickland, 466 U.S. at 694). “A 283 reasonable probability is a probability sufficient to undermine 284 confidence in the outcome.” Strickland, 466 U.S. at 694. 285 In his ineffective assistance of counsel claim, Dowthitt 286 raises several sub-issues concerning his mitigation defense, 287 investigation, and closing arguments. We will examine each of 288 his claims in turn.

289 1. Failure to Present a Mitigation Defense 290 Based on Mental Illness

291 Dowthitt argues that trial counsel failed to present a 292 mitigation defense based on mental illness. In support of this 293 argument, Dowthitt points to several aspects of his life and 294 trial. He states that his habeas counsel located records 295 indicating he suffered from mental illness that were not 296 discovered by trial counsel. A 1964 re-admission form from 297 Austin State Hospital shows that a young Dowthitt was diagnosed 298 as having a “schizophrenic reaction” of a “chronic paranoid type” 299 and was committed temporarily. The admission history also states 300 that when Dowthitt was hospitalized due to an automobile accident 301 in August 1962, a test “showed slight brain damage.” In 302 addition, Dowthitt points to Sergeant Walter Blakeslee’s

14

303 statement of July 14, 1964 recommending that Dowthitt be 304 discharged from the Air Force. Blakeslee stated “it was evident 305 to . . . [him] that Airman Dowthitt was suffering from some 306 mental deficiency.” 307 Dowthitt also relies heavily on declarations from Dr. Paula 308 Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired 309 by habeas counsel. Lundberg-Love stated that her “clinical 310 impression was that . . . [Dowthitt] was not sadistic or 311 sociopathic.” She further wrote that Dowthitt’s “profile was 312 consistent with paranoid and schizophrenic features” and that he 313 suffers from depression. Sultan stated in her affidavit that the 314 interrogation videotapes showed Dowthitt’s “severe mental 315 problems” and that the trial mental health expert’s “examination 316 was cursory.” She also wrote that Dowthitt “functions quite 317 peacefully and successfully within the prison environment,” 318 rebutting the predictions made at trial about his potential for 319 future dangerousness. 320 Dowthitt argues that trial counsel’s affidavits provide 321 further support for their deficient performance with regard to 322 his mitigation defense. He states that, by their own words, 323 trial counsel did not investigate mental health defenses because 324 they “had no knowledge that Defendant suffered brain damage,” and 325 “he appeared sane and competent at all times.” Dowthitt further 326 quotes trial counsel’s affidavit: “During our many interviews 327 Defendant never appeared to be suffering from any mental problems

15

328 other than being upset and unhappy about his circumstances.” 329 Dowthitt asserts that such impressions on the part of trial 330 counsel were not reasonable because he was on anti-depressants 331 during that time, because his video-taped interrogation exposes 332 his unstable state of mind, and because the Lundberg-Love and 333 Sultan declarations confirm his mental illness. 334 Citing to Goss v. State, the State responds that Texas 335 caselaw has discounted mitigation evidence not relevant to the 336 crime or future dangerousness. 826 S.W.2d 162, 165 (Tex. Crim 337 App. 1992), cert. denied, 509 U.S. 922 (1993). The State further 338 argues that, even in the face of Dowthitt’s repeated denials of 339 any mental problems, trial counsel retained a psychiatrist to 340 examine Dowthitt. The State also points out that Dowthitt 341 received funds for neuropsychological expert assistance during 342 the state habeas corpus proceedings, but that no evidence from 343 that expert’s testing has ever been presented. 344 As for the reports of Lundberg-Love and Sultan, the State 345 asserts that they are precluded from consideration because they 346 were not presented to the state courts. Further, the State 347 claims that Dowthitt has not established cause and prejudice for 348 his failure to develop this evidence below. Finally, citing to 349 the district court’s findings, the State argues that even if the 350 reports were considered, they are insufficient because Lundberg- 351 Love and Sultan appeared to have formed their impressions from 352 speaking with Dowthitt’s habeas counsel.

16

353 In reply, Dowthitt argues that under the Supreme Court’s 354 decision in (Terry) Williams v. Taylor, the “nexus” requirement 355 for mitigation evidence is erroneous. He further states that 356 although the State continuously refers to “brain damage,” he is 357 contesting trial counsel’s failure with regard to “mental 358 illness.” And, Dowthitt asserts that the Lundberg-Love and 359 Sultan reports are not barred from consideration because he has 360 established “cause” via the denial of funding to obtain experts 361 by the state habeas courts. 362 As for Dowthitt’s brain damage claim, the state habeas court 363 found that Dowthitt was competent to stand trial, that no 364 neuropsychological expert had found that Dowthitt suffered from 365 brain damage, and that Dowthitt exhibited no signs of brain 366 damage. These findings8 are not unreasonable in light of the 367 record, and Dowthitt has not presented clear and convincing 368 evidence rebutting their presumption of correctness. Moreover, 369 Dowthitt concedes these findings in his reply brief by abandoning 370 his initial reliance, in part, on brain damage. He states that 371 “mental illness . . . is the mitigation evidence upon which . . . 372 [he] bases his ineffectiveness claims.” 373 As for the evidence indicating “mental illness” (the Austin 374 State Hospital and the Air Force records), we are bound by the

8

The state habeas court also found trial counsel’s affidavits, explaining that Dowthitt did not appear to be suffering from mental problems, to be credible.

17

375 state habeas court’s findings that these records included 376 “information which could have hurt . . . [Dowthitt’s] case.”9 377 Such information included, among other data, the following: that 378 Dowthitt attempted to rape his eight-year old niece, that he had 379 allegedly molested the same girl when she was five, that he had 380 an immature personality (as opposed to psychotic tendencies), and 381 that he “showed a temper and insisted on having his own way.” In 382 light of these details, the state habeas court’s findings are 383 clearly supported by the record. See 28 U.S.C. § 2254(d)(2). 384 Thus, even assuming arguendo that trial counsel were 385 deficient in failing to discover these medical records,10 386 Dowthitt was not prejudiced in his defense. See Buxton v. 387 Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989) (“Strickland allows 388 the habeas court to look at either prong first; if either one is 389 found dispositive, it is not necessary to address the other.”). 390 There is no “reasonable probability” that the outcome would have 391 been different because the evidence was double edged in nature.

9

The state habeas court also found that Dowthitt was not medicated during trial with any anti-depressant or other mindaltering medication.

10

We note that Dowthitt steadfastly denied to his trial counsel that he had any mental problems. See Strickland, 466 U.S. at 691 (“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.”). Still, trial counsel did retain a psychiatrist, Dr. Fred Fason, to examine Dowthitt; the Sixth Amendment does not require counsel to continue searching until they find an expert willing to provide more beneficial testimony on their behalf.

18

392 As such, trial counsel’s actions in not discovering and 393 presenting the records to the jury to bring out indications of 394 mental illness do not create a “probability sufficient to 395 undermine confidence in the outcome.” Strickland, 466 U.S. at 396 694. 397 The state habeas court did not make additional findings 398 dealing with Dowthitt’s asserted mental illness because Dowthitt 399 did not present any other evidence to that court. The Lundberg- 400 Love and Sultan affidavits were introduced for the first time to 401 the district court on federal habeas review. Thus, we must 402 initially answer the threshold question of whether we are 403 precluded from considering these affidavits. Although both the 404 State and Dowthitt argue this issue as one of “factual 405 development” under § 2254(d) and (e),11 it is more accurately 406 analyzed under the “exhaustion” rubric of § 2254(b).12 407 “We have held that a habeas petitioner fails to exhaust 408 state remedies when he presents material additional evidentiary 409 support to the federal court that was not presented to the state 410 court.” Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)

11

Section 2254(e) deals with when a petitioner is entitled to an evidentiary hearing in federal district court even though he has failed to develop the factual bases of his claims in state habeas proceedings.

12

Section 2254(b)(1)(A) states, in part, that “a writ of habeas corpus . . . shall not be granted unless it appears that the Applicant has exhausted the remedies available in the courts of the State.”

19

411 (emphasis added); see also Young v. Lynaugh, 821 F.2d 1133, 1139 412 (5th Cir. 1987), abrogation on other grounds recognized by 413 Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Brown v. 414 Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983). Furthermore, “we 415 are unwilling to . . . accommodate new factual allegations in 416 support of a previously asserted legal theory, even though these 417 factual allegations came into existence after the state habeas 418 relief had been denied.” Joyner v. King, 786 F.2d 1317, 1320 419 (5th Cir. 1986) (emphasis added). 420 Thus, we must first determine whether this claim is before 421 us “in a significantly different and stronger evidentiary posture 422 than it was before the state courts.” Joyner, 786 F.2d at 1320. 423 We find that Dowthitt does not allege “new facts” via the 424 affidavits of the two experts because “all crucial factual 425 allegations were before the state courts at the time they ruled 426 on the merits” of Dowthitt’s habeas petition. See Young, 821 427 F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion 428 in the case because petitioner did present significant new facts 429 in his federal petition). Dowthitt had presented to the state 430 habeas court his assertions of mental illness of the 431 schizophrenic, paranoid type. The Lundberg-Love and Sultan 432 affidavits add little to those claims. 433 While we find that consideration of these affidavits is not 434 precluded, we do not find them to demonstrate a substantial 435 showing of the denial of the Sixth Amendment right to counsel.

20

436 Even if trial counsel had obtained this information, Dowthitt 437 fails to demonstrate that such information would have altered the 438 jury’s judgment. Sultan’s affidavit is based on her review of a 439 portion of the paper record, and she did not personally interview 440 Dowthitt. We also agree with the district court’s assessment 441 that “much of Dr. Sultan’s initial declaration is based on her 442 discussions with habeas counsel rather than on independent 443 analysis” because her statements put forth information that she 444 could not have known otherwise.13 445 Lundberg-Love’s affidavit also presents similar problems. 446 She stated that she could have testified to Dowthitt’s mental 447 trauma “that he was experiencing as a result of witnessing Delton 448 sexually assault Gracie after he had cut her throat and killed 449 her sister prior to . . . [Dowthitt’s] arrival back at the murder 450 scene.”14 As the jury had decided not to believe Dowthitt’s 451 claims, this version of the murders would not be credited during 452 sentencing. Therefore, even assuming arguendo that trial 453 counsel’s performance was deficient,15 Dowthitt fails to make a

13

For example, Sultan states that Dowthitt “spent much of the interrogation hooked up to a polygraph machine, looking terrified and confused.” However, she does not list the interrogation videotapes among the materials that she reviewed.

14

Lundberg-Love also noted that she would have testified regarding the consequences of his mental illness.

15

We pause briefly to address the parties’ arguments regarding the “nexus” requirement for a mitigation defense. So far as the State is asserting that mitigating evidence “not connected to the crime or future dangerousness” cannot be

21

454 substantial showing of prejudice on this Strickland claim as he 455 does not demonstrate a sufficient probability that the alleged 456 errors of trial counsel undermined confidence in the outcome. 457 See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir.), cert. 458 denied, 527 U.S. 1055 (1999) (“The potential negative impact of 459 the retardation evidence, in addition to the cold-blooded nature 460 of the murder and . . . [defendant’s] other violent conduct, 461 persuades us that the outcome of the sentencing would not have 462 been different if counsel would have investigated further.”). 463 2. Failure to Competently Prepare and Use Dr. Fason 464 Dowthitt next asserts constitutional error with regard to 465 trial counsel’s inadequate development of Dr. Fred Fason’s 466 testimony. Counsel retained Dr. Fason, a psychiatrist, to 467 examine Dowthitt on several issues regarding Dowthitt’s mental 468 state. Dowthitt argues that trial counsel did not competently 469 prepare Dr. Fason and did not call Dr. Fason as a witness during 470 trial.

considered, it is not consistent with the Supreme Court’s most recent statement on this issue: “Mitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s deatheligibility case.” (Terry) Williams v. Taylor, 120 S. Ct. 1495, 1516 (2000). While the jury can take into account the “totality of available mitigation evidence,” id. at 1515, “a tactical decision not to present character evidence during the penalty phase of a capital murder trial because it would open the door for incidents of prior misconduct . . . [is] not unsound.”

Barrientes, 221 F.3d at 774.

22

471 The state habeas court noted the integrity of trial counsel 472 and found their affidavits to be credible. In their affidavits, 473 trial counsel stated that Dr. Fason had a “lengthy interview” 474 with Dowthitt and “spent many hours reviewing various tapes and 475 discussing this case” with counsel. Dowthitt, in turn, points to 476 Dr. Fason’s May 13, 1992 notes and states that they “indicate a 477 very short jailhouse interview.” He further asserts that he 478 “remembers” the interview being “exceedingly short.” Dowthitt 479 does not explain how the notes “indicate” the length of the 480 interview. Dowthitt’s personal beliefs, although they may be 481 genuine, do not present clear and convincing evidence that would 482 rebut the state court’s findings.16 483 Dowthitt also asserts that trial counsel did not request Dr. 484 Fason to conduct an evaluation for mitigation purposes. The 485 State responds, however, that a letter in trial counsel’s files 486 reveals that just such an evaluation was requested. Dowthitt has 487 failed to raise a substantial issue that trial counsel was not 488 reasonable in pursuing a mitigation defense. 489 In addition, Dowthitt contests trial counsel’s decision not 490 to call Dr. Fason to testify on Dowthitt’s behalf at trial. He

16

Dowthitt also refers to jailhouse records that would indicate the time spent in the particular interview. He contends that the State has not released them. However, he does not develop this argument further and, as such, has not adequately briefed this issue for our consideration. See Trevino v.

Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that inadequately argued issues are considered waived).

23

491 claims that Dr. Fason’s report would have demonstrated that he 492 was not dangerous. This assertion fails to meet the deficient 493 performance prong of Strickland. Although Dr. Fason’s report 494 contains some information relating to mitigating factors, 495 statements detrimental to Dowthitt are also included that clearly 496 indicate his unwillingness to testify in Dowthitt’s favor. Thus, 497 trial counsel’s decision not to put a witness on the stand who 498 himself is not entirely favorable toward Dowthitt, and 499 furthermore, who would have to respond with more damaging 500 information during the State’s cross-examination, is not 501 objectively unreasonable.17 Trial counsel also elicited 502 favorable information during cross-examination of the State’s 503 expert witness, Dr. Walter Quijano.18 This further supports the 504 conclusion that the trial counsel’s decision not to put Dr. Fason 505 on the stand was a matter of trial strategy. See Strickland, 466 506 U.S. at 699.

17

In addition, trial counsel’s affidavit, found credible by the state habeas court, states that Dr. Fason reported to them personally that he believed that Dowthitt was a very dangerous individual.

18

Dowthitt vehemently contests the beneficial impact of Quijano’s testimony on cross-examination. However, given the damage that could have been caused by Dr. Fason’s testimony and that some of Dr. Quijano’s statements could have been considered in Dowthitt’s favor by the jury, trial counsel’s decision was the result of strategic considerations, one which will not be secondguessed on federal habeas appeal.

In addition, Dowthitt notes that another capital case has recently been reversed due to Dr. Quijano’s improper testimony.

However, that does not automatically mandate a finding of error in this case.

24

507 Dowthitt also argues that trial counsel should have found 508 another expert who would be willing to testify to Dowthitt’s lack 509 of future dangerousness based on his mental condition. As the 510 district court noted, even in the face of Dowthitt’s steadfast 511 denial of any mental problems, trial counsel, “in an abundance of 512 caution,” retained a psychiatrist. Thus, the state habeas court 513 finding that trial counsel were “relentless” in their pursuit of 514 Dowthitt’s defense is not unreasonable. We also find that 515 “[t]rial counsel performed appropriately, recognizing the 516 possible issues regarding . . . [the defendant’s] mental 517 capacity, recognizing the need for expert assistance in exploring 518 these issues,” and employing a defense expert. White v. Johnson, 519 153 F.3d 197, 207 (5th Cir. 1998) (emphasis added). Under the 520 circumstances, trial counsel was not deficient by not canvassing 521 the field to find a more favorable defense expert. 522 Dowthitt has failed to make a substantial showing on this 523 ineffective assistance counsel claim. We find that reasonable 524 jurists would not debate the propriety of granting a COA on this 525 issue.

526 3. Failure to Present Dowthitt’s Mercy-Evoking Background as 527 Mitigation Through Family Members

528 Dowthitt claims that trial counsel committed constitutional 529 error by not presenting mitigation evidence via family members 530 during the punishment phase of the trial. He argues that the 531 following family members’ affidavits demonstrate that they would

25

532 have testified to Dowthitt’s abusive upbringing, his mental 533 difficulties, and his loving relationship with some of his 534 children: Darlene Glover, Dowthitt’s sister; Stacey Dowthitt, 535 Dowthitt’s step-son; and Danna Taft, Dowthitt’s wife. 536 As an initial matter, the State argues that consideration of 537 these affidavits is barred on federal habeas appeal because they 538 were not presented to the state courts. The State bases this 539 argument on § 2254(d) and (e). As we explained in section 540 II.B.1, this issue is more appropriately analyzed under the 541 § 2254(b) exhaustion framework. Thus, if the case is in a 542 significantly stronger evidentiary framework before the federal 543 habeas court than it was before the state habeas court, the 544 exhaustion requirement has not been satisfied. See section 545 II.B.1, supra. Dowthitt replies that the substance of these 546 affidavits was presented to the state courts through the 547 affidavits of the state habeas investigator detailing his 548 interviews with these family members. We agree with Dowthitt 549 that no “new facts” are presented to us and that the state habeas 550 court had the critical facts before it. See Young, 821 F.2d at 551 1139. Thus, the exhaustion requirement of § 2254(b) has been 552 satisfied.19

19

We note that the state habeas court found that Dowthitt failed to obtain affidavits of his family members and did not show that they could not be obtained without court order. We agree with the district court’s assessment that Dowthitt was not justified in not presenting those affidavits to the state habeas court. However, this impacts the need for a federal evidentiary

26

553 The state habeas court found that Dowthitt “did not want any 554 of his family testifying on his behalf.” Counsel will not be 555 deemed ineffective for following their client’s wishes, so long 556 as the client made an informed decision. See Autry v. McKaskle, 557 727 F.2d 358, 361 (5th Cir. 1984) (“By no measure can . . . [the 558 defendant] block his lawyer’s efforts and later claim the 559 resulting performance was constitutionally deficient.”). 560 Dowthitt contests the state habeas court’s finding by arguing 561 that he did not understand the import of mitigating evidence (and 562 trial counsel did not even discuss it with him). We agree with 563 the district court that Dowthitt’s personal belief (in a proffer 564 submitted at the January 7, 2000 hearing) does not present clear 565 and convincing evidence to rebut the state court’s finding.20 566 In addition, trial counsel, in an affidavit found to be 567 credible by the state habeas court, stated that they “attempted 568 to talk to anyone” who would cooperate21 and that many potential 569 witnesses did not want to become involved. Thus, trial counsel 570 attempted to delve into Dowthitt’s background, but were hindered 571 by external forces. Unlike trial counsel in (Terry) Williams v.

hearing under § 2254(e) and is not relevant to the exhaustion determination under § 2254(b). See, infra, section II.F.

20

We also note that in their affidavit, found credible by the state habeas court, trial counsel stated they “discussed the case in detail” with Dowthitt.

21

The state habeas court found that they did speak with Stacey Dowthitt.

27

572 Taylor, 120 S. Ct. 1495 (2000), counsel’s actions here would be 573 characterized as reasonable trial strategy because they attempted 574 to investigate Dowthitt’s background and were thwarted by 575 uncooperative potential witnesses. 576 Trial counsel further stated in their affidavit that some 577 people who did speak with them had knowledge of factors 578 detrimental to Dowthitt. We have held that the “failure to 579 present . . . evidence would not constitute ‘deficient’ 580 performance within the meaning of Strickland if . . . [counsel] 581 could have concluded, for tactical reasons, that attempting to 582 present such evidence would be unwise.” Williams v. Cain, 125 583 F.3d 269, 278 (5th Cir. 1997); cf. (Terry) Williams, 120 S. Ct. 584 at 1497-98 (finding that counsel’s tactical decision to focus on 585 defendant’s voluntary confession, without undertaking any sort of 586 investigation into defendant’s background, was not justifiable 587 trial strategy). 588 Thus, Dowthitt has not made a substantial showing that the 589 actions of his trial counsel were objectively unreasonable. As 590 he fails to demonstrate sufficient evidence to meet the deficient 591 performance prong of the Strickland test, he has not shown that 592 the issue is debatable among reasonable jurists. We therefore 593 deny Dowthitt’s request for a COA based on this ineffective 594 assistance of counsel claim.

595 4. Failure to Investigate for the Guilt/Innocence Phase and the 596 Punishment Phase

28

597 Dowthitt argues that trial counsel did not adequately 598 conduct their own investigation. In this regard, he makes the 599 following contentions: trial counsel did not interview any 600 significant State witnesses, “deferring” instead to the State’s 601 version of the events without performing independent analysis; 602 they did not discover that Darla Dowthitt’s own trial had been 603 repeatedly reset and did not inform the jury about her pending 604 felony case for indecency with a child; they failed to adequately 605 impeach Delton by not presenting his prior misconduct; and they 606 did not follow through on their own DNA testing. 607 The state habeas court found that, based on the credible 608 affidavits of trial counsel, “trial counsel extensively reviewed 609 the State’s file and evidence collected in this case.” Trial 610 counsel also stated in their affidavit that they hired DNA,22 611 fingerprinting,23 and psychiatric experts. The record 612 illustrates that these experts made findings in line with the 613 State’s evidence. We find that trial counsel did not blindly bow 614 to the State’s evidence and attempted to dispute it. That they

22

The State also asserts that Dowthitt has failed to present any exculpatory DNA evidence, despite court funding for further testing. Dowthitt responds that there was no residue left upon which to conduct such testing, “even at trial.” We question how Dowthitt can make this statement and yet fault trial counsel for allegedly not having their own DNA tests performed.

23

The state habeas court also found specifically that counsel hired a qualified fingerprint expert, who confirmed the State’s findings.

29

615 were not successful in their attempts does not render their 616 performance deficient. 617 The state habeas court also found that “trial counsel 618 investigated Delton’s background.” This finding is reasonable in 619 light of the record. Trial counsel knew about Delton’s prior 620 misconduct and actually attempted to admit evidence of this 621 during trial. The trial court, however, excluded them (after a 622 hearing on the issue) as violating Texas Rule of Criminal 623 Evidence 609(b). Dowthitt’s only response to this is that the 624 Texas rules of evidence should be found offensive to the 625 Constitution because they unfairly and arbitrarily prejudiced his 626 defense. 627 However, the very case that Dowthitt cites for support 628 recognizes that the fundamental fairness concept works to 629 discredit evidentiary rules in very limited circumstances. See 630 Fuller v. State, 829 S.W.2d 191, 207-08 (Tex. Crim. App. 1992). 631 The Fuller court emphasized that the Constitution does not easily 632 undo the rules of evidence:

633 Every rule of evidence works a hardship on some 634 litigants part of the time, and it is easy to 635 sympathize with the frustration of any party whose most 636 promising strategy turns out to be objectionable under 637 the law. But we are not at liberty to relieve every 638 such disappointment with an ad hoc suspension of the 639 Rules.

640 Id. at 207. The Fuller court noted that “the report Appellant 641 sought to introduce in this case is precisely the sort of thing 642 which the hearsay rule, in spite of its many exceptions, is still

30

643 specifically designed to exclude.” Id. at 208. Similarly, in 644 this case, Dowthitt sought to introduce evidence that went to the 645 heart of the rules of evidence against using prior misconduct to 646 show conformity with the alleged conduct.24 This is not the sort 647 of instance that demands the use of the Constitution to disregard 648 fundamental evidentiary rules. 649 We also find that trial counsel’s performance was not 650 deficient with regard to discovering Darla Dowthitt’s felony 651 indictment for indecency with a child. Trial counsel requested 652 and received a discovery order for the criminal record of all 653 State witnesses. Dowthitt falls far short of demonstrating 654 deficient performance in this regard. 655 Dowthitt has not made a substantial showing of ineffective 656 assistance of counsel due to inadequate investigation. As such, 657 he is not entitled to a COA on this claim.

658 5. Inadequate Closing Arguments at the Guilt/Innocence 659 Phase and the Penalty Phase

660 Dowthitt argues that trial counsel’s closing arguments were 661 inadequate because they undermined their own case by 662 misrepresenting facts and making unjustifiable concessions. He 663 focuses primarily on counsel’s comments regarding the DNA 664 results. Trial counsel stated in closing argument, in relevant 665 part:

24

We note that the State points out that trial counsel did elicit some evidence of past misconduct from Quijano and Delton.

31

666 The blood, all right. There’s been testimony there’s 667 some blood on the bottle . . . . We get down here to 668 Picture 75 and 76 and we get a spot on the bottom that 669 we know was blood because they scraped that spot off 670 and they sent it in and the DNA people said 95 probably 671 Gracie’s blood. But that’s on the bottom and that’s a 672 little tiny bit and does that mean that the bottle sat 673 down in or rolled around or came near or got on a piece 674 of bloody clothing or in some other matter connected 675 with the blood? We assume that 95 percent is close 676 enough that it is Gracie’s blood. It doesn’t tell us 677 how it got there.

678 State Trial Transcript, Vol. XXXIV at 1270-71 (emphasis added). 679 Dowthitt contends it was a plain misstatement to convey that 680 there was a ninety-five percent probability the blood was 681 Gracie’s because the DNA test merely revealed that ninety-five 682 percent of the population was excluded, with Gracie being among 683 the five percent possible contributors of the blood.25 Dowthitt 684 further points to his expert’s testimony on habeas that if the 685 jury had been informed of the significant number of people who 686 share that genetic profile, the jury would have more accurately 687 assessed the evidence. 688 The state habeas court found that “trial counsel were 689 zealous advocates for . . . [Dowthitt’s] defense during closing 690 argument.” Dowthitt falls far short of producing clear and 691 convincing evidence to rebut the presumption of correctness we 692 afford this finding under AEDPA. While counsel’s 693 characterization of the test results were not entirely on point,

25

The DNA testing also revealed that Dowthitt and Delton were part of the ninety-five percent excluded as possible contributors.

32

694 the closing arguments as a whole were thorough and effective. 695 The record demonstrates that trial counsel drove home the point 696 that the DNA evidence did not tie Dowthitt to the crime — that 697 the blood could have gotten on the bottle in any number of other 698 ways. We find without reservation that trial counsel’s 699 performance was sufficient in this regard. 700 Dowhtitt also argues that trial counsel was deficient during 701 the closing arguments for the penalty phase. Dowthitt faults 702 trial counsel for statements that Dowthitt suffered from a 703 “disease” that resulted in his acting in a “frenzy, like the 704 feeding of a shark or something.” Dowthitt also asserts that 705 trial counsel “‘argued’ against Mr. Dowthitt being a future 706 danger by positing that his only victims in prison would be 707 ‘effeminate men.’” 708 Dowthitt cannot manufacture deficient performance by 709 selectively extracting phrases from trial counsel’s closing 710 argument and mischaracterizing them. While we would not endorse 711 every aspect of trial counsel’s statements, nevertheless, taken 712 in full context, those statements for the most part were 713 beneficial because they went toward demonstrating that Dowthitt’s 714 actions were not deliberate26 and that he did not present a

26

Pursuant to Section 37.071(b) of the Texas Code of Criminal Procedure, the jury had to answer two special issues during the punishment phase. Special Issue No. 1 dealt with deliberateness: “[w]hether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or

33

715 continuing danger.27 Furthermore, we note we have held that 716 counsel’s acknowledgment of aspects of the case can be a proper 717 “effort to bolster credibility with the jury.” Kitchens v. 718 Johnson, 190 F.3d 698, 704 (5th Cir. 1999). We will not second 719 guess such strategic decisions under the teaching of Strickland. 720 Dowthitt’s assertions regarding trial counsel’s closing 721 arguments fail to demonstrate substantial doubt on his Sixth 722 Amendment right. As such, he is not entitled to a COA on this 723 ineffective assistance of counsel claim. 724 In sum, the state habeas court found “trial counsel were 725 relentless in the defense of their client in the face of a very 726 bad set of facts.” In addition, the court found that Dowthitt 727 failed “to show that the outcome of his trial would have been 728 different but for the alleged instances of ineffective assistance 729 of counsel.” Dowthitt has not presented clear and convincing 730 evidence to rebut the presumption of correctness we afford to 731 state court findings under AEDPA. Furthermore, our review also 732 reveals that the state court was not unreasonable in its finding 733 in light of the record. We therefore find that Dowthitt has not 734 demonstrated a substantial showing of the denial of his

another would result.”

27

Special Issue No. 2 dealt with future dangerousness:

“[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

34

735 constitutional right to counsel, and we deny his application for 736 a COA on this claim.

737 C. Admission of DNA Evidence Without a Factual Predicate 738 Dowthitt argues that he was denied due process of law under 739 the Fourteenth Amendment when DNA evidence28 was admitted at 740 trial without a proper factual predicate. Pointing to the lack 741 of a prior hearing to determine the admissibility of the DNA 742 evidence, Dowthitt asserts that his constitutional rights were 743 violated. The state habeas court found that Dowthitt “failed to 744 object to the trial court’s failure to hold a hearing on the 745 reliability of the DNA evidence and waived any error.”

746 In all cases in which a state prisoner has defaulted 747 his federal claims in state court pursuant to an 748 independent and adequate state procedural rule, federal 749 habeas review of the claims is barred unless the 750 prisoner can demonstrate cause for the default and 751 actual prejudice as a result of the alleged violation 752 of federal law, or demonstrate that failure to consider 753 the claims will result in a fundamental miscarriage of 754 justice.

755 Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state 756 procedural rule at issue in this instance is adequate because it

28

During the trial’s guilt/innocence phase, the State presented expert testimony regarding DNA testing performed on “blood scrapings” taken from a beer bottle discovered in Dowthitt’s auto shop. The expert testified that DQ alpha typing was done on the sample due to its small size. The State’s evidence indicated that although “typing” was far less determinative than DNA “fingerprinting,” it permitted a conclusion that Gracie was within the five percent of the population not excluded as contributors of the blood.

35

757 has been “strictly or regularly followed.” Amos v. Scott, 61 758 F.3d 333, 339 (5th Cir. 1995). “This Circuit has held that the 759 Texas contemporaneous objection rule is strictly or regularly 760 applied evenhandedly to the vast majority of similar claims, and 761 is therefore an adequate procedural bar.” Corwin v. Johnson, 150 762 F.3d 467, 473 (5th Cir. 1998). 763 As for the cause-and-prejudice exception, cause is 764 demonstrated by establishing that some objective external factor 765 “‘impeded counsel’s efforts to comply with the State’s procedural 766 rule.’” Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1999) 767 (quoting Coleman). Dowthitt maintains that cause existed for his 768 default. The failure to object he contends, is the result of 769 trial counsel’s ineffectiveness. “[C]ounsel’s ineffectiveness 770 will constitute cause only if it is an independent constitutional 771 violation.” Coleman, 501 U.S. at 755; see also Ellis v. Lynaugh, 772 883 F.2d 363, 367 (5th Cir. 1989) (citing Murray v. Carrier, 477 773 U.S. 478, 488 (1986)). Dowthitt puts forth two arguments to 774 establish that counsel’s ineffective assistance was of 775 constitutional dimension: (1) counsel’s failure to request the 776 hearing and (2) counsel’s concession that the blood from the 777 bottle was conclusively Gracie’s. 778 First, Dowthitt does not provide further detail (beyond his 779 assertion) as to why the failure to object rose to the level of a 780 Sixth Amendment violation. Because this issue is inadequately 781 briefed, we do not consider it on appeal. See Trevino, 168 F.3d

36

782 at 181 n.3. Furthermore, we have previously held that a mere 783 allegation “that . . . [trial counsel] provided ineffective 784 assistance of counsel in failing to so object[]” is not 785 sufficient to establish constitutionally prohibited conduct. 786 Washington v. Estelle, 648 F.2d 276, 278 (5th Cir. 1981) (stating 787 that it is “not for federal courts to speculate as to possibly 788 [sic] reasons for failure to object.” (internal quotations and 789 citation omitted)). Dowthitt’s second argument for cause also 790 fails because we found in section II.B.5 that trial counsel’s 791 statements regarding DNA evidence did not rise to the level of 792 constitutional error. 793 Dowthitt also cannot rely on the “fundamental miscarriage of 794 justice” exception to the procedural bar because he did not 795 demonstrate substantial doubt as to his actual innocence. See 796 section II.A, supra; see also Fearance v. Scott, 56 F.3d 633, 637 797 (5th Cir.), cert. denied, 515 U.S. 1153 (1995) (rejecting the 798 defendant’s attempt to expand the “narrow scope” of the 799 fundamental miscarriage of justice exception). 800 Thus, we find that Dowthitt’s claim regarding the admission 801 of DNA evidence is procedurally barred from federal habeas 802 review.29 We deny Dowthitt’s request for a COA on this claim

29

We also note that the state habeas court found, “[i]n the alternative, the State proved the reliability of the DNA evidence during the trial and there was no due process violation.”

37

803 because he does not demonstrate that reasonable jurists would 804 find it debatable that the procedural ruling was correct.30

805 D. State Misconduct 806 Dowthitt argues that state misconduct violated his right to 807 due process and a fair trial. In this regard, he makes the 808 following claims: intimidation of potential defense witness David 809 Tipps, breach in the chain of custody of the blood sample, 810 misrepresentation of the DNA evidence to the jury, failure to 811 disclose a felony indictment of State witness Darla Dowthitt, 812 and mischaracterization of Dowthitt’s interrogation statement 813 that he “was there the whole time.” We will address each of 814 these arguments in turn.31

815 1. Intimidation of Potential Defense Witness

30

As we find that the first prong of the Slack COA inquiry for procedural claims has not been met, we do not need to address the second prong.

31

As an initial matter, we note that the state habeas court found Dowthitt did not adequately brief his state misconduct claims and thus did not properly present them for review. This indicates a lack of exhaustion on Dowthitt’s part because he did not “fairly apprise the . . . state of the federal rights which were allegedly violated.” Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). However, as the state habeas court did not explicitly find that Dowthitt waived his misconduct claims and went on to make findings regarding those claims, we find that the state court had a “fair opportunity to pass upon the claim[s].” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.

1999) (internal quotatios and citation omitted).

38

816 Dowthitt first asserts that David Tipps, Delton’s jailmate, 817 would have testified that Delton claimed he killed both girls; 818 however, after a visit from two State investigators, Tipps 819 refused to testify. Dowthitt submits the affidavit of Joseph 820 Ward, his state habeas investigator, in support of the claim that 821 the State agents intimidated Tipps into not testifying. Ward 822 states in his affidavit that Tipps would not sign an affidavit 823 out of fear for himself. 824 We must first decide whether this claim was “adjudicated on 825 the merits in State court proceedings.” 28 U.S.C. § 2254(d). 826 The state trial court held a hearing outside the presence of the 827 jury on this issue, and Dowthitt contested the trial court’s 828 ruling on direct appeal. See Dowthitt v. State, 931 S.W.2d 244, 829 267 (Tex. Crim. App. 1996). However, Dowthitt did not raise this 830 issue in his state habeas proceeding, but did do so in his brief 831 to the federal district habeas court. 832 “When faced with a silent or ambiguous state habeas 833 decision, the federal court should ‘look through’ to the last 834 clear state decision on the matter.” Jackson v. Johnson, 194 835 F.3d 641, 651 (5th Cir. 1999). Although the state habeas 836 decision is silent on this particular misconduct claim, the Texas 837 Court of Criminal Appeals, on direct appeal, unambiguously dealt 838 with the issue. “Having determined that the issue was 839 adjudicated on the merits in state courts, we owe deference to

39

840 their disposition of the claim under § 2554.” Barrientes, 221 841 F.3d at 780. 842 The Court of Criminal Appeals determined that Tipps’s fears 843 of being a “snitch,” rather than a fear of prosecution, motivated 844 his decision not to testify in Dowthitt’s defense. It based this 845 holding, in part, on Tipps’s continued defiance even in the face 846 of the trial court holding him in contempt. We conclude that 847 reasonable jurists could not debate whether the decision of the 848 Court of Criminal Appeals was “contrary to, or involved an 849 unreasonable application of, clearly established . . . [Supreme 850 Court] law.” 28 U.S.C. § 2254(d)(1). As such, reasonable 851 jurists could not “debate whether (or, for that matter, agree 852 that) the petition should have been resolved in a different 853 manner.” Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). We 854 find that Dowthitt is not entitled to a COA on this state 855 misconduct claim. 856 2. Breach in the Chain of Custody of the Blood Sample 857 Dowthitt claims that the blood from which the DNA was 858 extracted originally came from a knife, and not a beer bottle, as 859 presented at trial. In support, he offers the photograph of an 860 evidence label that has the typewritten words “scrapings from 861 lock blade knife” crossed out and replaced with the handwritten 862 words “from bottle.” Dowthitt argues that the State thus

40

863 presented false testimony, violating his Fourteenth Amendment 864 rights. 865 The state habeas court made several findings in this regard, 866 including: “no blood scrapings other than those from a beer 867 bottle recovered from [Dowthitt’s] shop were submitted for 868 testing[]”; “‘scrapings from lock blade knife’ [on evidence 869 label] was in error[]”; “only scrapings from a bottle, and not a 870 knife, were submitted for DNA testing.” 871 These findings are not unreasonable “in light of the 872 evidence presented in the State court proceeding.” 28 U.S.C. 873 § 2254(d)(2). Given the high deference we accord to state court 874 determinations, we find that reasonable jurists would not debate 875 whether it should be have been resolved in a different manner, 876 and as such, we deny to issue a COA on this claim. 877 3. Misrepresentation of DNA Evidence to the Jury 878 Dowthitt argues that the State misrepresented the 879 conclusiveness of the DNA evidence to the jury during closing 880 arguments. He contests the following statement: “You know it is 881 Gracie’s blood on that beer bottle.” 882 First, we need to consider if this claim was adjudicated on 883 the merits during state proceedings for § 2254(d) deference 884 purposes. Dowthitt failed to object to this statement during 885 trial and did not raise it on direct appeal. He did argue the 886 issue during state habeas proceedings, but the state habeas court

41

887 made no findings in this regard. Therefore, we must examine the 888 following factors to determine whether an adjudication on the 889 merits occurred:

890 (1) what the state courts have done in similar cases; 891 (2) whether the history of the case suggests that the 892 state court was aware of any ground for not 893 adjudicating the case on the merits; and (3) whether 894 the state courts’ opinions suggest reliance upon 895 procedural grounds rather than a determination on the 896 merits.

897 Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). 898 As for the first factor, Texas courts have consistently held 899 that unless the prosecutor’s comments were “clearly calculated to 900 inflame the minds of the jurors and is of such character as to 901 suggest the impossibility of withdrawing the impression 902 produced,” the failure to object timely waives any error. Van 903 Zandt v. State, 932 S.W.2d 88, 93 n.1 (Tex. App. — El Paso 1996, 904 pet. ref’d). We find that the prosecutor’s argument in this case 905 does not fall within the exception to the failure to make a 906 contemporaneous objection. As Dowthitt did not object at trial, 907 the first factor points toward an adjudication on the merits. 908 Similarly, the history of the case also favors adjudication 909 on the merits. Rather than arguing the contemporaneous objection 910 rule, the State addressed this claim on the merits the first time 911 it was raised, in federal habeas proceedings. As for the third 912 factor, we have previously held that under Texas law, “a denial 913 of relief by the Court of Criminal Appeals serves as a denial of 914 relief on the merits.” Miller v. Johnson, 200 F.3d 274, 281 (5th

42

915 Cir. 2000). Thus, the state court’s denial of habeas relief does 916 not indicate a procedural adjudication. 917 We find that an “adjudication on the merits” under § 2254(d) 918 occurred with regard to this state misconduct claim. Therefore, 919 we conduct a deferential review, as mandated by AEDPA. We next 920 proceed to analyze whether Dowthitt made a substantial showing of 921 the denial of his due process and fair trial rights. 922 In habeas corpus proceedings, we review allegedly improper 923 prosecutorial statements under a strict standard. “The 924 statements must render the trial fundamentally unfair.” 925 Barrientes, 221 F.3d at 753. “[I]t is not enough that the 926 prosecutors’ remarks were undesirable or even universally 927 condemned. The relevant question is whether the prosecutors’ 928 comments so infected the trial with unfairness as to make the 929 resulting conviction a denial of due process.” Darden v. 930 Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and 931 citations omitted). 932 We have held that “[i]n the context of closing argument, 933 . . . [the prosecutor is not] prohibited from reciting to the 934 jury those inferences and conclusions she wishes the jury to draw 935 from the evidence so long as those inferences are grounded upon 936 evidence.” United States v. Munoz, 150 F.3d 401, 414-15 (5th 937 Cir. 1998), cert. denied, 525 U.S. 1112 (1999) (internal 938 quotations omitted). In this case, the prosecutor’s statement is

43

939 a reasonable one, requesting the jury to draw a desired 940 conclusion based upon the evidence.32 941 As such, we find that the state court denial of Dowthitt’s 942 claims reasonable under the standards set forth by § 2254(d). 943 Dowthitt does not demonstrate a substantial showing of the denial 944 of his due process rights and, therefore, is not entitled to a 945 COA in this regard. 946 4. Failure to Disclose Felony Indictment of State Witness 947 Dowthitt argues that the State failed to disclose that Darla 948 Dowthitt, Dowthitt’s daughter, was under felony indictment 949 (indecency with a child) when she testified for the prosecution 950 at the guilt/innocence phase of the trial. Pointing to the fact 951 that Darla’s own trial date was reset several times, Dowthitt 952 claims that an oral agreement had been struck between the State 953 and Darla. Thus, the nondisclosure violated the Supreme Court’s 954 mandate in Brady v. Maryland, 373 U.S. 83 (1963). The State 955 responds that no deal was struck for Darla’s testimony, and as 956 such, Dowthitt has no viable Brady claim. 957 The suppression of evidence material to guilt or punishment 958 violates a defendant’s fundamental due process rights. See id. 959 at 87. The Court has “since held that the duty to disclose such 960 evidence is applicable even though there has been no request by 961 the accused, and that the duty encompasses impeachment evidence

32

The State presented the DNA results and the testimony of experts explaining those results during trial.

44

962 as well as exculpatory evidence.” Strickler v. Greene, 527 U.S. 963 263, 280 (1999) (citations omitted). Such evidence is material 964 “if there is a reasonable probability that, had the evidence been 965 disclosed to the defense, the result of the proceeding would have 966 been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) 967 (internal quotations and citations omitted). 968 “To prevail on a Brady claim, the defendant must [thus] 969 demonstrate that (1) the prosecution suppressed evidence; (2) the 970 evidence was favorable to him; and (3) the evidence was ‘material 971 either to guilt or punishment.’” Vega v. Johnson, 149 F.3d 354, 972 363 (5th Cir. 1998), cert. denied., 525 U.S. 1119 (1999). In 973 this case, there is no dispute that the indictment existed and 974 the prosecution did not reveal it to the defense. This evidence 975 arguably would have been favorable to Dowthitt’s case. 976 While the first two prongs of the test have been satisfied 977 here, Dowthitt fails on the third prong — materiality. “The 978 existence of an indictment, as opposed to a conviction, is not 979 generally admissible to impeach.” Id. (citing as example 980 Michelson v. United States, 335 U.S. 469, 482 (1948)). “Under 981 Texas law, the existence of the indictment becomes admissible 982 only if the witness, on direct examination, misrepresents himself 983 as having no trouble with the law . . . . The only other 984 exception, for witnesses whose testimony might be affected by the 985 indictment . . . [is a] relationship between [the] prosecution

45

986 and [the witness’s] case.” Id. (internal quotations and citation 987 omitted). 988 First, Darla made no such misrepresentations, and thus the 989 first exception would not have applied. Dowthitt also cannot 990 rely on the second exception. The state habeas court found that 991 the “prosecutors did not offer Darla a deal for her testimony and 992 did not reset her case to avoid a felony conviction for 993 impeachment purposes.” We presume this finding to be correct 994 under § 2254(e)(1). Dowthitt has not clearly and convincingly 995 refuted the evidence in the record supporting the state court’s 996 determination that no suppression of evidence occurred because no 997 deal even existed.33 998 We find that Dowthitt fails to demonstrate the requisite 999 “reasonable probability” that the outcome would have been 1000 different. Thus, he does not make a substantial showing of the 1001 denial of a constitutional right and is not entitled to a COA on 1002 this claim. 1003 5. Mischaracterization of Dowthitt’s Interrogation Statement

33

Testifying at the punishment phase, Darla unequivocally stated that no deal existed, that she did not believe a deal existed, and that she would not make a deal because she was “not guilty.” The prosecutor filed an affidavit during state habeas proceedings also affirming that no deal was made with Darla to procure her testimony. In response, Dowthitt states that Darla eventually received a lenient sentence for a plea and early release from probation. This information, by itself, is not sufficient to overcome the above evidence to the contrary (as any number of factors could have accounted for the eventual disposition of her case).

46

1004 Detective Hidalgo testified during the guilt/innocence phase 1005 that Dowthitt stated during the interrogation, “I was there the 1006 whole time.”34 Dowthitt asserts that this statement was 1007 misrepresented as a admission of being present at the scene. He 1008 claims that the video of the interrogation demonstrates that 1009 Dowthitt was actually indicating disbelief by repeating the 1010 statement. 1011 As we have done in Part II.D.2 and II.D.3, supra, we must 1012 first determine whether an adjudication on the merits occurred in 1013 state courts. With no statement from the habeas court directly 1014 on point, we are directed to look through to the last clear state 1015 decision on the issue. See Jackson v. Johnson, 194 F.3d 641, 651 1016 (5th Cir. 1999). On direct appeal, the Texas Court of Criminal 1017 Appeals found that Dowthitt’s “admission to being present during 1018 the murders occurred around 1:00 a.m.” Dowthitt v. State, 931 1019 S.W.2d 244, 253 (Tex. Crim. App. 1996). Thus, we find that this 1020 issue was adjudicated on the merits in state proceedings, and we 1021 examine the result with the deference demanded by AEDPA. See 28 1022 U.S.C. § 2254(d).

34

The interrogation went, in relevant part, as follows:

Mr. Dowthitt: Man, I didn’t do nothing.

Hidalgo: But you were there, not soon after it happened, weren’t you? You weren’t far away.

Hendricks: He was there the whole time.

Hidalgo: And you know what’s bothering you?

Mr. Dowthitt: I was there the whole time.

47

1023 Beyond his assertions that he did not make an admission, 1024 Dowthitt does not demonstrate that the state court’s adjudication 1025 was unreasonable in light of the record.35 Thus, reasonable 1026 jurists would not “debate whether . . . the petition should have 1027 been resolved in a different manner.” Slack v. McDaniel, 120 S. 1028 Ct. 1595, 1603-04 (2000). Accordingly, we deny Dowthitt a COA on 1029 this claim.

1030 E. Instruction on Lesser-Included Offenses 1031 Dowthitt argues that the trial court erred in failing to 1032 instruct the jury on lesser-included offenses of murder, felony 1033 murder or aggravated sexual assault, thus violating his rights 1034 under the Fifth, Sixth, Eighth, and Fourteenth Amendments.36 He 1035 asserts that evidence existed that would support convictions on 1036 the lesser crimes, as opposed to capital murder: the beer bottle 1037 with Gracie’s blood indicated sexual assault, but not murder; the

35

Both the state court and the district court below reviewed the videotapes and disagreed with Dowthitt’s characterization of the statement.

36

We note that the state habeas court found Dowthitt “did not object to the absence of a lesser-included instruction.”

However, the court did not explicitly find that, as a matter of law, Dowthitt waived any error (which the court did with regard to the admission of DNA evidence). This, combined with the fact finding that Dowthitt was not guilty of the lesser-included offense, indicates that the state habeas court made its decision on the merits. We therefore do not find a procedural bar to this claim. Furthermore, “[h]aving determined that the issue was adjudicated on the merits in state courts, we owe deference to their disposition of the claim under § 2254.” Barrientes v.

Johnson, 221 F.3d 741, 780 (5th Cir. 2000).

48

1038 knife alleged to be the murder weapon was not connected to the 1039 sexual assault; and the jury knew that Delton confessed to 1040 killing both girls in his first confession. The State responds 1041 that one cannot base an argument for a lesser-included offense on 1042 the jury disbelieving portions of the State’s case. In reply, 1043 Dowthitt maintains, given that no relevant physical evidence 1044 actually connected him to the murder, the jury had before it 1045 multiple scenarios, which lead to different crimes. 1046 We do not agree because Dowthitt fails to make a substantial 1047 showing that his case met the requirements that would necessitate 1048 instructions on lesser-included offenses.37 Contrary to 1049 Dowthitt’s assertions, “[i]t is not enough that the jury may 1050 disbelieve crucial evidence pertaining to the greater offense. 1051 Rather, there must be some evidence directly germane to a 1052 lesser-included offense for the factfinder to consider before an 1053 instruction on a lesser-included offense is warranted.” Jones v. 1054 Johnson, 171 F.3d 270, 274 (5th Cir. 1999; see also Banda v. 1055 State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) (“The credibility 1056 of the evidence and whether it conflicts with other evidence or 1057 is controverted may not be considered in determining whether an 1058 instruction on a lesser-included offense should be given.”).

37

A state trial court may not, under Beck v. Alabama, 447 U.S. 625 (1980), refuse a lesser-included offense instruction “if the jury could rationally acquit on the capital crime and convict for the noncapital crime.” Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.), cert. denied, 486 U.S. 1061 (1988).

49

1059 As such, Dowthitt has not presented clear and convincing 1060 evidence to rebut the state habeas court’s finding that “there 1061 was no evidence showing that [Dowthitt] was guilty [only] of the 1062 lesser offenses of rape and murder.” Dowthitt thus fails to 1063 demonstrate that reasonable jurists would debate the propriety of 1064 not granting an instruction for lesser-included offenses. With 1065 no substantial showing on this claim, Dowthitt does not meet the 1066 requirement for a COA.

1067 F. District Court’s Evidentiary Hearing 1068 Dowthitt asserts that the district court erred in providing 1069 only a limited evidentiary hearing on his actual innocence claim 1070 and in not holding a hearing on his other claims. He argues that 1071 the lack of factual development below was not due to his actions 1072 or lack thereof. Dowthitt faults particularly the state habeas 1073 court judge’s actions. He states that the judge who presided 1074 over his state district court habeas proceedings, had recused 1075 himself from trial because one of the trial counsel was his own 1076 attorney in a divorce proceeding. The judge, however, did not 1077 recuse himself from the habeas proceedings, refused to conduct an 1078 evidentiary hearing on the habeas claims, and accepted verbatim 1079 the prosecution’s proposed findings. 1080 Section 2254(e)(2) guides our determination of whether these 1081 requested evidentiary hearings were appropriate in this case. 1082 “If an applicant had failed to develop the factual basis of a

50

1083 claim in State court proceedings,” the federal court may hold an 1084 evidentiary hearing if:

1085 (A) the claim relies on 1086 (i) a new rule of constitutional law, made 1087 retroactive to cases on collateral review by the 1088 Supreme Court, that was previously unavailable; or 1089 (ii) a factual predicate that could not have been 1090 previously discovered through the exercise of due 1091 diligence; and 1092 (B) the facts underlying the claim would be sufficient 1093 to establish by clear and convincing evidence that but 1094 for the constitutional error, no reasonable factfinder 1095 would have found the applicant guilty of the underlying 1096 offense.

1097 28 U.S.C. § 2254(e)(2). 1098 “Under the opening clause of § 2254(e)(2), a failure to 1099 develop the factual basis of a claim is not established unless 1100 there is a lack of diligence, or some greater fault, attributable 1101 to the prisoner or the prisoner’s counsel.” (Michael) Williams 1102 v. Taylor, 120 S. Ct. 1479, 1488 (2000). Furthermore, the 1103 (Michael) Williams Court associated the “failure to develop” 1104 standard with the cause inquiry for procedural default. See id. 1105 at 1494. 1106 Dowthitt argues that he exercised due diligence because he 1107 requested evidentiary hearings in state habeas proceedings, and 1108 those requests were denied. Thus, he asserts that his failure to 1109 develop his habeas claims are excused under § 2254(e)(2). We do 1110 not agree. Mere requests for evidentiary hearings will not 1111 suffice; the petitioner must be diligent in pursuing the factual 1112 development of his claim. As the state habeas court found,

51

1113 Dowthitt did not present affidavits from family members and did 1114 not show that they “could not be obtained absent an order for 1115 discovery or a hearing.” In response, Dowthitt now argues that 1116 his “proffers” of what would be presented at a hearing 1117 constituted due diligence. We do not find his argument 1118 persuasive. Given that the family members were willing to 1119 testify at a hearing, Dowthitt could have easily obtained their 1120 affidavits. A reasonable person in Dowthitt’s place would have 1121 at least done as much. Dowthitt’s arguments that lack of funding 1122 prevented the development of his claims are also without merit. 1123 Obtaining affidavits from family members is not cost prohibitive. 1124 Thus, Dowthitt has not rebutted the state habeas finding in this 1125 regard. 1126 We find that Dowthitt has not made a substantial showing of 1127 meeting the requirements set forth in § 2254(e)(2) that would 1128 entitle him to a federal habeas evidentiary hearing. As such, he 1129 is not entitled to a COA on this claim.38

38

Even if Dowthitt had met the § 2254(e)(2) standard, he would still have to clear another hurdle to obtain a COA. “After the [§ 2254(e)] standard is met, the district court’s denial is reviewed for abuse of discretion.” Clark v. Johnson, --- F.3d ----, 2000 WL 1285270, *9 (5th Cir. 2000). When the district court has “‘sufficient facts before it to make an informed decision on the merits of [the habeas petitioner’s] claim,’ it does not abuse its discretion in failing to conduct an evidentiary hearing.” Barrientes, 221 F.3d at 770; see also United States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984)

(“Where, as here, allegations contained in a habeas petition are either contradicted by the record or supported by conclusory factual assertions incapable of being tested in an evidentiary hearing, no hearing is required.”). Given that the district

52

1130 III. CONCLUSION 1131 For the foregoing reasons, we DENY Dowthitt’s request for a 1132 COA on all of his claims and VACATE the stay of execution.

court analyzed whether Dowthitt received a “full and fair hearing” in the state courts, found that Judge Alworth’s conduct was proper, and wrote a thorough opinion taking into account all credible evidence, reasonable jurists would not disagree that the district court acted well within its discretion.