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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 22, 2013

                                       No. 12-70028                        Lyle W. Cayce
                                                                                Clerk

TOMMY LYNN SELLS,

                                                  Petitioner-Appellant
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-465


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Petitioner Tommy Lynn Sells (“Sells”) appeals the district court’s denial
of additional funding and seeks a certificate of appealability (“COA”) to prosecute
his application for habeas corpus challenging the constitutionality of his Texas
state court death sentence. Sells was denied relief on direct appeal, in three state
habeas corpus proceedings, and finally by the district court, and we now




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-70028

AFFIRM the district court’s denial of additional funding and DENY Sells’s
motion for a COA.


                                       I.
                                 A. The Crime
      The facts underlying Sell’s conviction are not in dispute. Early in the
morning on December 30, 1999, Sells secretly entered the Del Rio, Texas trailer
home of Terry Harris, an acquaintance of Sells. Sells was familiar with Harris’s
home, having previously visited Harris there. Armed with a butcher knife, Sells
explored the residence. Although Harris was out of town, the residence was
occupied by five people on that morning: In one bedroom was Harris’s wife,
asleep with a young girl; in another bedroom was a young boy; and in one of the
bedrooms was a bunk bed occupied by Harris’s thirteen-year-old daughter,
Kaylene Harris and her family friend, eleven-year-old Krystal Surles. Seeing the
girls asleep, Sells lay down next to Kaylene on the bottom bunk and cut off her
underwear. When he began to grope Kaylene and touch her genitals, she
snapped awake and yelled for Krystal to go get help.
      Sells jumped up at the same time as Kaylene and situated himself between
Kaylene and the bedroom door. When she attempted to open the door, Sells
stabbed Kaylene with the knife he was still wielding. Sells then turned on the
bedroom light and lunged at Kaylene again with the knife, stabbing her a total
of sixteen times and slitting her throat multiple times; Kaylene died almost
immediately. Sells then remembered Krystal still in the top bunk and hurriedly
slit her throat before leaving the room. As he exited the trailer, he wiped his
fingerprints off a doorknob and took with him two window screens he thought
might contain his fingerprints. Sells then drove back to his house, stopping to
discard the knife and window screens in a field.



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         Meanwhile, a wounded Krystal pretended to be dead until Sells left the
home. Believing everyone in the Harris trailer to be dead, Krystal walked to a
neighbor’s house where she awoke the neighbors and indicated in writing that
help was needed at the Harris residence. After receiving care for her injuries,
Krystal was able to supply the police with a description of her assailant, from
which a composite drawing was made. The attacker was promptly identified as
Tommy Lynn Sells, who was located and arrested two days later.
         Upon being arrested, Sells immediately confessed to the murder. In a
videotaped statement of his confession, Sells indicated that he was glad to have
been caught so that he would not hurt others, and briefly alluded to another
young girl that he may have murdered in Kentucky. That same day, Sells
voluntarily accompanied police to the Harris residence. There he led them
through a videotaped narrative re-enactment of his crime, describing in detail
how he murdered Kaylene Harris and attempted to murder Krystal Surles.
Multiple forms of evidence corroborated Sells’s confession and Krystal’s
uncontradicted testimony, including: the location of the murder weapon; the
medical examiner’s testimony regarding Kaylene’s injuries; forensic tests
confirming the presence of Sells’s blood and clothing fibers on Kaylene; and
forensic tests confirming the presence of Kaylene’s blood and clothing fibers on
Sells.
         Sells was subsequently indicted for the murder of Kaylene Harris and the
attempted murder of Krystal Surles. At his ensuing jury trial, Sells pled guilty
to the attempted murder charge and presented no evidence regarding his guilt
in Kaylene’s murder. After deliberating less than two hours, the jury found Sells
guilty of murder on September 18, 2000.1


         1
          The trial and story of Sells has garnered a substantial amount of national media
attention, due largely to Sells’s claim to have committed as many as seventy murders in his
lifetime.

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                                  B. Sentencing
      At the punishment phase of Sells’s trial, the state of Texas sought the
death penalty. As evidence of Sells’s incapacity for rehabilitation and continuing
proclivity for violence, the state first offered the testimony of Danny Calderon
(“Calderon”), a prison inmate who had been housed next to Sells for about two
months. Calderon testified that during their incarceration together, Sells became
angry with him and threatened to maim and kill him. In response to Sells’s
threats, jail officials had to relocate Calderon to a different part of the facility
away from Sells.
      The prosecution next called psychologist Dr. Frederick Gary Mears (“Dr.
Mears”), who presented expert testimony based primarily on his review of Sells’s
records and the details of Kaylene Harris’s murder. Dr. Mears testified that
(1) Sells was “off the scale” in terms of the likelihood of future violence, (2) the
past is the best predictor of an individual’s future violent behavior, (3) Kaylene’s
autopsy revealed a number of postmortem wounds consistent with intentional
body desecration and mutilation, (4) the nature of many of Kaylene’s non-fatal
wounds suggested Sells derived pleasure from the brutality of the murder, (5)
Sells qualified as a highly manipulative, antisocial personality, (6) consistent
with his antisocial personality, Sells displayed a cavalier attitude during his
confessions and narrative re-enactment of the crime indicative of a lack of
emotion and an absolute indifference to death, (7) Sells’s criminal history
demonstrated an escalation in violence over time, and (8) Sells displayed no
remorse for the murder of Kaylene and attempted murder of Krystal.
      The final witness offered by the prosecution was a state fingerprint
analyst, who testified that Sells’s fingerprints positively verified his out-of-state
criminal record. Those records indicated that Sells had been convicted of
automobile theft in Wyoming in 1990 and malicious wounding in West Virginia
in 1993.

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      In response, the defense called a jail administrator who testified that Sells
had only two disciplinary referrals during his eight-month stay in the Texas jail.
The defense then called its own psychologist, Dr. Windel Lee Dickerson (“Dr.
Dickerson”). Dr. Dickerson testified that he had interviewed Sells at length,
listened to an interview with Sells’s mother, reviewed Sells’s prison records, and
spoken with multiple people who had known Sells throughout his life. Based on
his investigation, Dr. Dickerson testified that (1) he suspected Sells had been
sexually abused as a child by a local pedophile, but that Sells would not discuss
the subject, (2) Sells had a profound history of substance abuse that began as
early as age seven, (3) a brain-activity scan revealed a widespread pattern of
“diffuse abnormality” in Sells’s brain functions, (4) psychological testing
confirmed that Sells was a very seriously disordered individual, and (5) rather
than having a true antisocial personality, Sells had a borderline personality
disorder with schizoid, avoidant, and antisocial features and possible brain
damage. Moreover, Dr. Dickerson opined that it was not possible to reliably
predict Sells’s propensity for future violence. Dr. Dickerson summarized his
testimony as follows:
      What my examination has revealed to this point is, there is a
      history of life experience which could be— which could be considered
      instigators to violence, things that prompt him. There are conditions
      that are present in his mind and body which I think dramatically
      affect his ability to guide and direct his own behavior and resist
      those instigations [sic] to violence. Those same things that reduce
      his capacity for self-restraint have also altered his ability— I think
      his ability to get a wrap around a lot of bad things that has [sic]
      happened in his life and reconstruct them, reposition them in his
      life in such a way that they do not cause him the problems that they
      have caused, so I think when I talk about Tommy Lynn Sells, I’m
      talking about somebody who has got a lot of problems that give us
      cause to be very seriously concerned.




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                                   No. 12-70028

Dr. Dickerson testified further that medications had helped control Sells’s
propensity for violence during previous incarcerations. In his opinion, the Texas
prison system could isolate and manage Sells to such a degree that he did not
pose a threat to other prisoners. For example, Dr. Dickerson observed that many
of the normal prompters of violence are not present in prison, such as weapons,
street drugs, alcohol, personal stress, and financial responsibilities. With proper
supervision, medication, and mental illness treatment, Dr. Dickerson testified
that prison would greatly limit Sells’s ability to place others in danger, especially
as he aged.
      Upon cross-examination, Dr. Dickerson conceded that testing of Sells
revealed an extreme lack of empathy, and that such individuals are ordinarily
very angry, irritable, unable to express their feelings, and have a low tolerance
for personal frustration. Dr. Dickerson further confirmed that although Sells
was paranoid and exhibited a host of psychological problems, medical testing
revealed no brain tumors or physical seizure disorders. Moreover, he admitted
that Sells’s crime was very opportunistic. Dr. Dickerson claimed not to
remember a videotaped statement wherein Sells stated that he was glad he had
been caught because he feared hurting other people. Dr. Dickerson also admitted
that inmates are free to refuse medication and interfere with their treatment,
often do obtain weapons, and can always potentially escape.
      In response to the defense’s evidence, the prosecution summoned one
rebuttal witness, Royce Smithey (“Smithey”), the chief investigator for the Texas
Special Prison Prosecution Unit. Smithey testified that prison and prisoner
segregation can reduce but do not eliminate the risk of violence. Moreover,
“administrative segregation” of a prisoner is merely a prisoner classification, not
a type of separate facility. Thus, even segregated prisoners ordinarily have
contact with other prisoners and guards. Nonetheless, Smithey conceded that it
is a small fraction of prisoners who account for most of the violence in the prison

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                                  No. 12-70028

system. In response, the defense attempted to present a videotape documenting
one of the administrative segregation facilities used by the Texas prison system.
The defense claimed that the tape demonstrated that Sells could be effectively
isolated to prevent harm to others, but the trial court excluded the evidence as
duplicative and irrelevant.
      After hearing the testimony, the jury returned a verdict supporting the
death penalty for Sells. Specifically, the jury found beyond a reasonable doubt
that there was a probability that (1) Sells would commit criminal acts of violence
that constituted a continuing threat to society, and (2) taking into consideration
all of the evidence, including the circumstances of the offense, and the
petitioner’s character, background, and personal moral culpability, there were
insufficient mitigating circumstances to warrant a sentence of life imprisonment.
                        C. Post-Conviction Proceedings
      Sells immediately appealed his conviction to the Texas Court of Criminal
Appeals (“TCCA”), which affirmed both his conviction and his sentence. See Sells
v. State, 121 S.W.3d 748 (Tex. Crim. App.), cert. denied, 540 U.S. 986 (2003).
Among the specific objections addressed by the court and rejected on direct
appeal was the trial court’s exclusion of the administrative segregation
videotape.
      Sells subsequently applied for a state writ of habeas corpus, relying solely
on a claim of ineffective assistance of trial counsel (“IATC”). Specifically, Sells
alleged that his trial counsel was ineffective because the attorney failed to
investigate and present unspecified mitigating evidence and called too few
witnesses at the trial’s punishment phase. In support of his IATC claim, Sells
offered two exhibits: (1) an affidavit by his state habeas investigator, Ann
Matthews, in which she opined that Sells’s trial counsel was pursuing book
rights, fame, and unrelated murder confessions more aggressively than he was



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pursuing Sells’s defense, and (2) an affidavit by an individual named Bob Schanz
alleging that Sells intended to confess to another murder in Missouri.
      In response to Sells’s IATC evidence, the state presented an affidavit by
Sells’s trial counsel, which alleged: (1) the defense team’s court-appointed
investigator had in fact spoken with “various family members of Tommy Lynn
Sells and did not find any helpful mitigation evidence that was not already
known,” (2) at the defense team’s behest, Sells had undergone a brain PET scan
which revealed no potentially-mitigating signs of brain damage or schizophrenia,
(3) there had never been any discussion of book royalties or publication rights,
(4) the defense team made a strategic decision not to call any mitigation
witnesses besides Dr. Dickerson because of concerns that they might have
knowledge of extraneous offenses committed by Sells which could have been
raised and used by the prosecution, and (5) Sells endorsed this strategic decision.
      In June 2005, the state habeas trial court issued an order and
recommended that Sells’s habeas corpus petition be denied. The TCCA adopted
the findings and recommendation of the trial court, and Sells’s habeas corpus
petition was denied. See Ex parte Tommy Lynn Sells, WR-62, 552-01 (Tex. Crim.
App. 2005).
      Sells then filed his federal habeas corpus petition in federal district court
in August 2006. However, the petition was immediately stayed so that Sells
could file a second state habeas corpus application, arguing this time that he was
mentally retarded and exempt from execution under Atkins v. Virginia, 536 U.S.
304 (2002). The TCCA denied investigative funding and dismissed the petition,
finding that Sells had failed to make a threshold showing of evidence to support
a finding that he is mentally retarded. See Ex parte Tommy Lynn Sells, WR-62,
552-02, 2007 WL 1493151 (Tex. Crim. App. 2007). Sells then returned to federal
court, which granted him funding to investigate and prepare his Atkins claim.



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      After attempting to develop an Atkins claim, Sells’s defense counsel
decided it was not worth pursuing. However, his defense counsel alleged that
during the investigation, new evidence emerged relating to Sells’s chronic
childhood sexual abuse and a possible fetal alcohol syndrome disability.
According to Sells, this was mitigating evidence that could have justified a
sentence other than death, and which Sells’s trial counsel should have
uncovered. Sells thus requested another stay in federal court to permit him to
return to Texas state court and exhaust his IATC claim.
      In September 2010, Sells filed a third state habeas corpus application,
asserting several new IATC claims. In this petition, Sells alleged deficient
assistance of counsel arising out of, among other things: (1) trial counsel’s failure
to seek a continuance to investigate potential mitigating evidence in Missouri,
(2) trial counsel’s failure to subpoena out-of-state witnesses to testify as to Sells’s
childhood, (3) trial counsel’s failure to develop and present evidence that Sells
suffered from fetal alcohol syndrome, (4) trial counsel’s failure to obtain Sells’s
mental health records and seek a mental health evaluation of Sells, (5) trial
counsel’s failure to ask defense expert Dr. Dickerson questions that might have
“personalized” Sells, (6) trial counsel’s failure to obtain adequate expert and
investigative funding from the trial court, and (7) first habeas corpus counsel’s
failure to present all of these claims. In support of his petition, Sells attached a
host of documentary evidence, including affidavits, sworn statements, and
authenticated documents relating to Sells’s mental capacity, background,
substance abuse, childhood, and other potentially mitigating factors. Despite the
addition of new evidence, the TCCA dismissed Sells’s petition pursuant to the
Texas writ abuse statute. See TEX. CODE CRIM. PROC. art. 11.071 § 5.
      In December 2010, the federal district court lifted the stay on Sells’s
petition and directed him to file an amended habeas petition setting forth all of
his exhausted claims for relief. Sells immediately filed motions for additional

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time and funding to develop the claims from his third state habeas petition,
which the district court denied. In February 2011, Sells finally filed the instant
amended habeas corpus petition in which he again alleged IATC arising out of
the same issues he raised in his third state habeas petition. This time, however,
Sells attached thirty-four exhibits to support his IATC claims. In addition, Sells
argued that the exclusion of the administrative segregation videotape violated
his Eighth and Fourteenth Amendment rights.
      Responding to Sells’s multiple claims that his trial counsel failed to
adequately investigate and present mitigating evidence during the trial’s
punishment phase, the district court found that Sells’s primary support for these
claims was a “plethora of documents” that he had never presented to any state
court. Specifically, Sells’s new evidence included extensive Missouri penal
system records and criminal records reflecting Sells’s behavioral problems as a
youth, similar records from West Virginia documenting a sexual assault
committed by Sells and diagnosis of antisocial behavior, and several expert
reports concerning fetal alcohol syndrome spectrum disorders. The district court
found that Sells’s new “voluminous documents substantially alter the context
and content of the ineffective assistance claims” Sells had presented to the state
habeas courts. As such, Sells had not fairly presented his claims to the state
court, and they were therefore unexhausted and not subject to federal habeas
review.
      Moreover, the district court found that to the extent any of Sells’s IATC
claims did not depend on new evidence, they were still unexhausted by virtue of
the third state habeas court’s refusal to consider them. Because the Texas state
court dismissed Sells’s third state habeas petition for abuse of the writ, his
corresponding habeas claims were unaddressed and procedurally barred under
Texas law, and therefore incapable of exhaustion. Accordingly, Sells’s IATC
claims were not subject to federal habeas review. Regardless, the district court

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alternatively found that each of Sells’s IATC claims failed on the merits anyway.
Reviewing each of Sells’s IATC claims, the district court concluded that none of
the alleged errors either demonstrated a constitutionally deficient level of
representation or had caused actual prejudice to Sells. Finally, the district court
also rejected Sells’s argument that his constitutional rights had been violated by
the trial court’s exclusion of the administrative segregation videotape.2
                                             II.
       Before a federal habeas petitioner can appeal the district court’s denial of
his petition, he must first obtain a certificate of appealability (“COA”). See 28
U.S.C. § 2253(c). To obtain a COA, the petitioner must make “a substantial
showing of the denial of a constitutional right.” See id. § 2253(c)(2). “Where a
district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). However, when the district court denies a habeas petition on procedural
grounds, a COA should only issue if “the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. (emphasis
added).
       No COA is necessary to appeal the district court’s denial of funds to a
habeas petitioner, and we review that portion of the district court’s order for
abuse of discretion. See Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005).




       2
          Although not challenged in this petition for a COA, the district court also rejected
each of the other errors alleged by Sells in his federal habeas petition.

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                                              III.
       Sells now challenges the district court’s denial of habeas relief, and seeks
a certificate of appealability with respect to two issues: (1) whether Sells’s trial
counsel provided ineffective assistance at the sentencing phase of his trial, and
(2) whether the exclusion of the administrative segregation videotape violated
Sells’s Eighth and Fourteenth Amendment rights. In addition, Sells argues that
the district court improperly denied him sufficient funding to develop mitigating
evidence that would have supported a sentence less than death.
                                               A.
       Sells first contends that the district court erred in its determination that
his IATC claim was unexhausted and not subject to federal review.
Alternatively, Sells contends that if his claim is unexhausted, it may still be
entertained because he has established cause and prejudice for his procedural
default.
                                               1.
       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) precludes
a federal court from granting a state prisoner’s application for a writ of habeas
corpus unless “the applicant has exhausted the remedies available in the courts
of the state.” 28 U.S.C. § 2254(b)(1)(A). This “exhaustion requirement is satisfied
when the substance of the federal habeas claim has been fairly presented to the
highest state court.”3 Under this standard, the mere addition of new evidence is
not itself enough to render a habeas petitioner’s claim unexhausted: “[D]ismissal
is not required when evidence presented for the first time in a habeas proceeding
supplements, but does not fundamentally alter, the claim presented to the state




       3
          Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (quoting Mercadel v. Cain, 179
F.3d 271, 275 (5th Cir. 1999)), abrogated in part as stated in Lewis v. Thaler, 701 F.3d 783, 790
(5th Cir. 2012).

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courts.”4 Moreover, the fact that new evidence places a habeas petitioner’s claim
in a comparatively stronger evidentiary posture than it was in state court is not
dispositive. Morris, 413 F.3d at 496. However, evidence that places the claims
in a “significantly different legal posture” must first be presented to the state
courts. See id. at 491.5
       The determination of whether additional evidence fundamentally alters
or merely supplements the state petition is necessarily case and fact specific. Id.
However, our decision in Anderson v. Johnson illustrates the type of facts which
support a finding that new evidence is merely supplemental. 338 F.3d 382. In
Anderson, the highest state court denied Anderson’s petition without holding an
evidentiary hearing. Id. at 388–89. In his ensuing federal petition, he presented
additional evidence in the form of an affidavit from a key eyewitness not called
at his trial. Id. Though the evidence had not been considered by the state court,
we noted that his state post-conviction brief was “remarkably detailed in both
fact and law” and contained specific references to the testimony that was later
offered in a federal affidavit. Id. We therefore determined that the affidavit did
not “fundamentally alter” his ineffective assistance of counsel claim and
therefore held that Anderson had properly exhausted state remedies. Id.6


       4
         Morris, 413 F.3d at 491 (emphasis in original) (quoting Anderson v. Johnson, 338
F.3d 382, 386 (5th Cir. 2003)).
       5
         See also Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir. 2003) (“A habeas petitioner fails
to exhaust state remedies ‘when he presents material additional evidentiary support to the
federal court that was not presented to the state court.’” (quoting Graham v. Johnson, 94 F.3d
958, 968 (5th Cir.1996))).
       6
          See also Dowthitt v. Johnson, where we considered whether Dowthitt had exhausted
his IATC claims arising out of his counsel’s failure to present sufficient mitigating evidence
of his alleged mental illness. 230 F.3d 733, 746 (5th Cir. 2000), abrogated in part as stated in
Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir. 2012). We found the exhaustion requirement
satisfied because Dowthitt had presented detailed assertions of his paranoid schizophrenia to
the state courts, even though he later offered additional affidavits by mental health experts
opining on that same diagnosis to the federal court. Id.

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       In other cases, however, we have consistently refused to consider a habeas
petitioner’s claims exhausted where the petitioner provides substantial amounts
of new evidence, the claims and allegations before the state court were
conclusory and undeveloped, the petitioner offers new evidence that could not
have been derived from the state court record, and the petitioner offers new
evidence which alters the nature of his claims. For example, in Ibarra v. Thaler,
we considered whether to grant a COA with regard to habeas petitioner Ibarra’s
claim of mental retardation. 691 F.3d 677, 681–82 (5th Cir. 2012). However, the
only evidence Ibarra presented to the state court was the affidavit of his
investigator, which detailed facts she had discovered regarding Ibarra’s alleged
early adaptive deficits. Id. at 682. When Ibarra filed his federal habeas petition,
he attempted to introduce new evidence, including an authenticated expert
report and affidavits from his family and childhood teacher, none of which was
a part of the state court record. Id. We concluded that the quantity and quality
of Ibarra’s new evidence fundamentally altered Ibarra’s claim of mental
retardation and rendered his claim unexhausted. See id.7
       In the instant case, Sells’s IATC claims fit into the class of cases in which
new evidence renders a petitioner’s claims unexhausted. When Sells filed his
habeas petition alleging the ineffective assistance of his trial counsel, he argued
that his attorney failed to investigate and present mitigating evidence about
Sells’s background. However, in support of this IATC claim, Sells focused on
allegations that his trial team had a conflict of interest arising out of their


       7
         See also Kunkle v. Dretke, 352 F.3d 980, 987 (5th Cir. 2003) (finding that habeas
claim was unexhausted when a detailed affidavit and expert report were used to “supplement”
a conclusory affidavit); Brown v. Estelle, 701 F.2d 494, 495–96 (5th Cir. 1983) (finding
petitioner’s claim unexhausted where he presented new affidavits which “added some
substantiation to contentions which previously had no serious corroboration”); Demarest v.
Price, 130 F.3d 922, 938–39 (10th Cir. 1997) (finding IATC claim not exhausted where
petitioner’s new evidence transformed his ineffective assistance of counsel claim into one that
was “significantly different and more substantial”).

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                                      No. 12-70028

pursuit of book and publicity rights. No new evidence was offered concerning
childhood abuse or fetal alcohol syndrome. However, Sells now asks us to
consider a bounty of evidence which no state court has yet had the opportunity
to evaluate, including: written statements by Sells’s mother, brother, childhood
family friend, schoolmate, and others; hospital records; Missouri prison system
records; a 1990 mental health evaluation; and the affidavits of at least two
mental health experts. We agree with the district court that this substantial
quantity of new evidence never considered by a state court fundamentally alters
Sells’s IATC claims and renders them unexhausted. Based on our caselaw,
reasonable jurists could not reach a different conclusion.
                                             2.
       This determination does not end our inquiry, however. Sells argues that
he attempted to present the substance of his instant IATC claims in his third
state habeas petition, but the state court refused to consider his petition as an
abuse of the writ. With his claims dismissed and procedurally defaulted under
Texas law, Sells is effectively precluded from exhausting his IATC claims in
state court. Nonetheless, in such cases, we may still consider a petitioner’s
unexhausted claims if he can demonstrate “cause for the default and actual
prejudice as a result of the alleged violation of federal law.”8
       The only cause for default which Sells alleges is the ineffective assistance
of his habeas counsel in failing to properly develop and investigate the ineffective
assistance of his trial counsel. Had Sells’s habeas counsel reasonably
investigated the deficiency of the trial counsel, then the new evidence which
renders Sells’s IATC claim unexhausted could have been presented to and
considered by the state court in the first state habeas proceeding. Although this
argument is only available under certain states’ procedural regimes, it is now

       8
        Johnson v. Cain, 712 F.3d 227, 234 (5th Cir. 2013) (quoting Woodfox v. Cain, 609 F.3d
774, 793 (5th Cir. 2010)).

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                                         No. 12-70028

undisputed that deficient counsel in an initial Texas state habeas proceeding can
constitute cause for default.9 However, to establish cause, Sells must first
establish the deficiency of his habeas counsel.
       Where a habeas petitioner alleges prejudice arising from the deficiency of
his habeas counsel in failing to properly assert the deficiency of his trial counsel,
he must demonstrate the constitutional inadequacy of both attorneys to be
entitled to relief. See Martinez, 132 S. Ct. at 1318.10 Conversely, the petitioner’s
failure to establish the deficiency of either attorney precludes a finding of cause
and prejudice.
       Ineffective assistance of counsel claims are governed by the standard laid
out in Strickland v. Washington:
       First, the defendant must show that counsel’s performance was
       deficient. . . . Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that
       counsel’s errors were so serious as to deprive the defendant of a fair
       trial, a trial whose result is reliable. Unless a defendant makes both
       showings, it cannot be said that the conviction or death sentence
       resulted from a breakdown in the adversary process that renders
       the result unreliable.11

In order to satisfy the performance prong, Sells must show that both his trial
and habeas counsels’ representation fell below an “objective standard of
reasonableness.” See Strickland, 466 U.S. at 688. Under the second prong, Sells
must show that there is “a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and

       9
           See Trevino v. Thaler, 133 S. Ct. ____, slip op. at 13–15 (2013).
       10
          To be clear, in cases like this, a prisoner must demonstrate the ineffective assistance
of his habeas counsel. However, “a prisoner must [only] demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Martinez, 132 S. Ct. at 1318.
       11
          Roberts v. Thaler, 681 F.3d 597, 610 (5th Cir. 2012) (quoting Strickland, 466 U.S.
668, 687 (1984)).

                                                16
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                                       No. 12-70028

mitigating circumstances did not warrant death.” Id. at 695. This showing is
intentionally difficult to satisfy: “In assessing prejudice under Strickland, the
question is not whether a court can be certain counsel’s performance had no
effect on the outcome . . . . Instead, Strickland asks whether it is ‘reasonably
likely’ the result would have been different.” Harrington v. Richter, 131 S. Ct.
770, 791–92 (2011).
       We begin by examining whether Sells can carry his burden of establishing
the constitutional inadequacy of his first habeas counsel, Terry McDonald
(“McDonald”). Sells argues that McDonald’s representation was deficient
because McDonald failed to diligently investigate and offer proof of the trial
attorney’s failure to develop and present mitigating evidence at sentencing.12 As
proof of McDonald’s incompetence, Sells points to the fact that the habeas
petition filed by McDonald was “only 22 pages,” only raised four claims, and was
supported by only two exhibits. Moreover, Sells argues that McDonald “virtually
abdicated his role” by delegating the mitigating evidence investigation to an
investigator; and the investigator’s efforts were inadequate because she
primarily relied on phone calls to contact potential witnesses.
       Sells fails to offer anything but conclusory assertions to show that
McDonald’s representation was objectively unreasonable. See Strickland, 466
U.S. at 688. Sells’s reliance upon the length of his habeas petition or the number
of claims it raises in no way establishes the unreasonableness of McDonald’s
actions. The fact that McDonald delegated the investigation of additional
mitigating facts to an experienced mitigation specialist is not troublesome at all.


       12
           Based on Sells’s federal habeas petition, the alleged shortcomings of trial counsel’s
mitigation investigation consist of counsel’s failure to: seek a continuance to investigate
potential mitigating evidence in Missouri, subpoena out-of-state witnesses to testify about
Sells’s childhood, offer mitigating psychological evidence, obtain Sells’s mental health records
and seek a mental health evaluation, and ask defense expert Dr. Dickerson questions that
might have “personalized” Sells.

                                              17
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                                         No. 12-70028

Nor have we been offered any reason why an investigator’s use of a telephone to
speak with potential witnesses should be considered a sign of constitutional
deficiency. To the contrary, the evidence demonstrates McDonald’s personal
efforts to locate mitigating evidence; McDonald’s affidavit indicates that he
reviewed at length the files of both the defense and the prosecution, but found
nothing useful. We also take note of the affidavit of Sells’s trial counsel in which
he states that the decision not to call further mitigation witnesses was
strategically designed to keep the prosecution from eliciting information about
Sells’s numerous extraneous offenses. Such a strategic decision is entitled to the
greatest degree of deference and challenging it would almost certainly have been
futile.13 Accordingly, Sells has not demonstrated that McDonald’s representation
fell below acceptable standards.
       Even if Sells could demonstrate the objective unreasonableness of
McDonald’s mitigation investigation efforts, he cannot demonstrate that he
suffered actual prejudice. Sells points to the mass of affidavits and reports he
has since mustered as the mitigating evidence which a reasonable investigation
should have uncovered. However, much of this evidence is of a type that would
not have shed any real mitigating light on Sells’s background.14 Other items of



       13
          “[A] ‘conscious and informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.’” Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006)
(quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004)).
       14
          For example: (1) ECF-103(2), the affidavit of Sells’s brother, Timmy Sells (stating
that Tommy got picked on as a kid, was not very intelligent, and could not be trusted with
many tasks); (2) ECF-103(3), the unsworn declaration of Sells’s brother, Timmy Sells (stating
that though Tommy worked as a mechanic, he was not capable of doing any complex work);
(3) ECF-103(7), the affidavit of Sells’s prison acquaintance, Danny Hunter (stating that
Tommy was slow, but he still earned his GED in prison); (4) ECF-103(10), neuropsychological
evaluation by Dr. Antoinette McGarrahan (positing that Sells was of below average
intelligence, abused drugs and alcohol, had antisocial personality disorder, and had borderline
personality traits).

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                                        No. 12-70028

evidence that Sells contends should have been discovered were duplicative,15
irrelevant,16 or even damaging.17 As the district court noted, the only new
allegations contained in the “mitigating evidence” offered by Sells are an isolated
statement that Sells may have been molested by his mother and grandmother,
and bald conjecture that Sells could have a fetal alcohol syndrome disability.
       As to Sells’s uncorroborated assertions that he had been molested by his
mother and grandmother, that is not the type of evidence that would reasonably
have been discovered by even the most thorough investigation by McDonald.
Knowledge about this alleged abuse was apparently limited to the parties
involved, yet Sells’s mother and grandmother have never confessed to it, and
Sells himself withheld the information from McDonald.
       Equally unconvincing is Sells’s assertion that evidence of a fetal alcohol
disability would likely have mitigated his sentence. Specifically, Sells argues
that his mother’s new admission that she drank occasionally18 while pregnant
with Sells, if properly utilized, “could have led to a diagnosis of Fetal Alcohol
Spectrum Disorder.” While Sells argues that the blameless nature of fetal


       15
          For example: (1) ECF-103(4), the affidavit of Sells’s mother, Nina Lovins (stating
that Sells was a very slow learner and a discipline problem and that he had been sexually
abused by a local man); (2) ECF-82(3), the declaration of Sells’s childhood friend, Paul Hunt
(stating that Sells was slow).
       16
         For example: (1) ECF-103(6), the Social Security Administration employment record
of Tommy Sells (summarizing earnings from January 1979–December 2000); (2) ECF-103(9),
the declaration of Sells’s step-son, Jonathan Levrie (stating that Sells worked at a local car
dealership and was not around much).
       17
           For example: (1) ECF-103(5), Missouri Department of Corrections psychiatric
evaluation (indicating that Tommy was of normal intelligence but potentially had a
personality disorder); (2) ECF-103(8), declaration of Sells’s ex-wife, Jessica Levrie Blanco Sells
(stating that Tommy could take care of himself, and that her daughter claimed to have been
molested by Sells); (3) West Virginia prison records (documenting the sexual assault
accusations against Sells by the victim of his malicious wounding crime).
       18
        The only testimony concerning Sells’s mother’s drinking was her admission that she
sometimes “drank screwdrivers on Friday nights” and “probably” drank other times.

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                                     No. 12-70028

alcohol impairment could have had a “powerful mitigating effect,” he ignores the
fact that the trial evidence already established that Sells suffered from serious
personality and adaptive impairments for which he bore no blame. In fact, the
trial court heard testimony from both sides concerning Sells’s psychological
evaluations and dysfunctionality, and so it is doubtful that Sells would have
derived any mitigating benefit merely by linking that diagnosis to fetal alcohol
syndrome. Moreover, we have previously found that evidence of fetal alcohol
syndrome-related deficiencies is not necessarily beneficial to a criminal
defendant. See Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012) (“The [fetal
alcohol disability] evidence that [petitioner] claims his counsel should have
presented is ‘double-edged’ because, although it might permit an inference that
he is not as morally culpable for his behavior, it also might suggest that he, as
a product of his environment, is likely to continue to be dangerous in the
future.”).19
       Considering the lack of mitigating evidence against the substantial
evidence in aggravation, we find that Sells has not demonstrated that his new
evidence would likely have resulted in a sentence less than death. See Williams
v. Taylor, 529 U.S. 362, 397–98 (2000). Because Sells cannot establish the
inadequacy of his habeas counsel or actual prejudice to his sentence, he cannot
establish cause for the default of his IATC claims. Accordingly, reasonable
jurists would agree that Sells has failed to establish cause for his procedural
default.




       19
           The Brown court reached that conclusion amid much more significant evidence of
fetal alcohol syndrome; the evidence showed that the petitioner’s mother drank on a “daily,
or near daily basis; that she drank heavily throughout her pregnancy with Brown [and] that
[she] was likely an alcoholic.” 684 F.3d at 494.

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                                  No. 12-70028

                                        B.
      Sells next argues that the state court’s exclusion of the administrative
segregation videotape violated his Eighth and Fourteenth Amendment rights.
      At trial, Sells had attempted to present the videotape as evidence that the
Texas prison system could successfully isolate Sells from other prisoners such
that he would not pose a continuing threat. The videotape purported to show the
physical facilities of an administrative segregation unit, and portrayed the
prison perimeter, inmate cells, day areas, recreation areas, medical facilities,
inmate transport, shackling, inmate strip searches, and inmate feeding. The
prosecution objected to the videotape as irrelevant and cumulative of the
testimony already offered about prison facilities. Despite the defense’s offer to
shorten the videotape, the court excluded the tape on the ground that it did not
portray the entirety of Texas prison operations. To the extent that it was
relevant, the trial court found that it was cumulative of defense testimony and
any relevance was also outweighed by the danger of misleading the jury as to
aspects of the prison system that might not necessarily apply to Sells. Sells re-
urged the error of excluding the videotape in a motion for new trial, again
without success. The TCCA affirmed the trial court’s decision on appeal.
      AEDPA provides that habeas relief may not be granted to a state prisoner
unless the state court’s 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.” 28 U.S.C.
§ 2254(d). Relying on these provisions, Sells makes three distinct arguments
based on the Texas court’s exclusion of the videotape: the state court’s decision
(1) was based on an unreasonable determination of the facts, (2) involved an
unreasonable application of Fourteenth Amendment due process precedent, and

                                        21
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                                       No. 12-70028

(3) involved an unreasonable application of Eighth Amendment cruel and
unusual punishment precedent.
                                              1.
       Sells’s first argument that the exclusion of the videotape was improper is
that it was based on an “unreasonable determination of the facts in light of the
evidence.” See 28 U.S.C. § 2254(d)(2). Under this standard, “It is not enough to
show that a state court’s decision was incorrect or erroneous. Rather, a
petitioner must show that the decision was objectively unreasonable, a
substantially higher threshold requiring the petitioner to show that a reasonable
factfinder must conclude that the state court’s determination of the facts was
unreasonable.”20 Additionally, under 28 U.S.C. § 2254(e)(1), “a determination of
a factual issue made by a State court shall be presumed to be correct,” and that
presumption must be rebutted “by clear and convincing evidence.” These
intersecting standards allow us to grant habeas relief based on a fact issue only
if the petitioner demonstrates both an incorrect factual determination by clear
and convincing evidence and that it compromised the objective reasonableness
of the court’s corresponding decision. See Valdez v. Cockrell, 274 F.3d 941, 951
n.17 (5th Cir. 2001).
       The only factual determination challenged by Sells is the TCCA’s
affirmance of the finding that the prison videotape is irrelevant and potentially
prejudicial. Sells contends that the videotape is directly relevant because it
shows the types of precautionary measures available within the Texas prison
system to preempt weapons and violence and to control inmate movements and
behavior. However, Sells’s contentions do little to address the reasoning of the
TCCA:



       20
         Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (quoting Blue v. Thaler, 665 F.3d
647, 654 (5th Cir.2011) (brackets and internal quotation marks omitted)).

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                                       No. 12-70028

       The videotape was not offered as information about the individual
       defendant or about how the individual defendant might be handled.
       Rather, as the judge noted, it portrayed only one aspect of an entire
       system and offered only general information about some procedures
       used in that system. That others have been controlled in the prison
       system or that certain procedures are in place without specifically
       connecting those procedures to appellant was not evidence of
       consequence to the jury’s factual determination of whether
       appellant would pose a continuing threat to society.

Sells, 121 S.W.3d at 766. Where we are concerned with the potential danger
posed by a particular prisoner in a particular setting, evidence of prison features
that may or may not be applicable to the prisoner in question is not relevant. See
Tennard v. Dretke, 542 U.S. 274, 284 (2004) (stating that relevance standard
applicable to mitigating evidence in capital cases is a “tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable”). In any case, the TCCA could certainly have
concluded that any relevance was outweighed by the misleading generalizations
implicit in the tape. Accordingly, reasonable jurists would agree that the state
court’s determination of the facts was not unreasonable.
                                             2.
       Sells’s second argument that the exclusion of the videotape was improper
is that it “involved an unreasonable application of clearly established”
constitutional due process precedent. See 28 U.S.C. § 2254(d)(1). “Under §
2254(d)(1)’s ‘unreasonable application’ language, a writ may issue ‘if the state
court identifies the correct governing legal principle from [the] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.’”21
       Here Sells contends that the TCCA misapplied Supreme Court precedent
interpreting the due process rights of criminal defendants. Specifically, Sells


       21
         Tucker v. Johnson, 242 F.3d 617, 621 n.5 (5th Cir. 2001) (quoting Williams v. Taylor,
529 U.S. 362, 413 (2000)).

                                             23
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                                         No. 12-70028

argues that the state court’s exclusion of relevant evidence deprived him of
valuable evidence essential to the fairness of his trial. As the Supreme Court has
emphasized, under a due process challenge, the relevant question is whether the
trial court’s error has “so infected the trial with unfairness as to make the
resulting conviction [or sentence] a denial of due process.”22 Moreover, the due
process inquiry considers the significance of the challenged evidence in the
context of the entire trial. Gonzales v. Thaler, 643 F.3d 425, 430–31 (5th Cir.
2011). “We have held that the Due Process Clause does not afford relief where
the challenged evidence was not the principal focus at trial and the errors were
not so pronounced and persistent that it permeates the entire atmosphere of the
trial.” Id. at 431.23
       It is readily apparent from the lengthy record that the videotape was not
the focus of Sells’s sentencing hearing. Furthermore, having already concluded
that the state court’s decision to exclude the evidence as irrelevant was not
improper, it necessarily follows that the decision did not “infect[] the trial with
unfairness.”24 Because the videotape evidence had little to do with whether Sells
individually posed a continuing threat to others (and therefore qualified for the
death penalty in Texas), reasonable jurists would agree that it was not patently
unfair to exclude it from his trial.25


       22
         Darden v. Wainwright, 477 U.S. 168, 180 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)).
       23
            (footnote omitted) (internal quotation marks omitted).
       24
            That the videotape evidence was not relevant to Sells’s defense or sentence
distinguishes it from the cases he cites in passing, in which the defendant was not permitted
to offer evidence probative of an issue in dispute. See, e.g., Sears v. Upton, 130 S.Ct. 3259, 3263
n.6 (2010); Crane v. Kentucky, 476 U.S. 683, 690–91 (1986); Gardner v. Florida, 430 U.S. 349,
362 (1977).
       25
          Because we reach this conclusion without taking into account the district court’s
discussion of Texas prison system procedures, we need not address Sells’s argument that such
discussion constituted improper use of judicial notice.

                                                24
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                                        No. 12-70028

                                               3.
       Sells’s third argument that the exclusion of the videotape was improper
is that it “involved an unreasonable application of clearly established” Eighth
Amendment “cruel and unusual punishment” precedent. See 28 U.S.C. §
2254(d)(1); U.S. CONST. amend. VIII. In the context of mitigating evidence in a
capital sentencing proceeding, the Supreme Court has clearly stated that the
Eighth Amendment only requires the admission of relevant evidence. See
Tennard, 542 U.S. at 284–85. Relevant mitigating evidence is “evidence which
tends logically to prove or disprove some fact or circumstance which a fact-finder
could reasonably deem to have mitigating value.” Id. at 284.26 It is only once this
requirement of relevance is met that the Eighth Amendment requires that the
jury be able to consider and give effect to a capital defendant’s mitigating
evidence. Id. at 285.27
       Again, because we have already determined that the videotape depicting
in a general way the Texas prison system in no way purports to document the
specific restrictions to which Sells would have been subject, it is not relevant to
the question of his future dangerousness. Because it is not relevant to mitigating
Sells’s sentence, the Eighth Amendment is not implicated.28 Id. Moreover, as the
Supreme Court has held, as long as any mitigating evidence is within “the
effective reach of the sentencer,” states are free to guide the sentencer’s
consideration of mitigating evidence.” Johnson v. Texas, 509 U.S. 350, 362 (1993)
(internal quotation marks omitted). While the state court may have regulated

       26
            (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)).
       27
            (quoting Boyde v. California, 494 U.S. 370, 377–78 (1990)).
       28
           We assume for purposes of this opinion that evidence relating to future
dangerousness in Texas, where such a finding is necessary to impose a death sentence, is
“mitigating evidence.” As the district court suggested, such evidence is arguably not mitigating
because it does not reflect on the defendant’s blameworthiness, culpability, character, prior
record, or the circumstances of the offense.

                                              25
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                                  No. 12-70028

the admission of the videotape due to its irrelevant and misleading nature, the
allegedly mitigating evidence in the video had already been presented to the jury
in the form of expert testimony on the ability of the Texas prison system to
control and contain prisoners like Sells. We therefore find that reasonable jurists
would agree that the TCCA’s exclusion of the videotape did not deprive Sells of
his Eighth Amendment rights.


                                        C.
      Sells lastly argues that the district court abused its discretion in denying
him funding to develop mitigating evidence that might have supported a
sentence less than death. Significantly, the district court’s denial of additional
funding came after the district court had already provided Sells five years and
$25,000 to investigate and develop his habeas claims. Despite the resources
already granted to Sells, he requested an additional $60,650 and now claims that
he was unable to prevail on the merits because his IATC claims remain
undeveloped.
      Under the relevant statute, a district court “may authorize [and] order the
payment of fees and expenses” for investigative, expert, or other services upon
a finding that they “are reasonably necessary for the representation of the
defendant.” 18 U.S.C. § 3599(f). This court construes “reasonably necessary” to
mean that a petitioner must demonstrate “a substantial need” for the requested
assistance. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004). However, “A
petitioner cannot show a substantial need when his claim is procedurally barred
from review.” Id. In the instant case, we have already determined that Sells is
procedurally barred from raising his IATC claims in federal court because they
are unexhausted and he cannot demonstrate cause and prejudice. Moreover,
Sells’s claims were already procedurally barred at the time the district court
denied his motion. In cases like this, our precedent is clear that a habeas

                                        26
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                                  No. 12-70028

petitioner is not entitled to investigative funds, and the district court did not
abuse its discretion in so holding.
                                      IV.
      For the reasons stated above, the district court’s judgment denying
additional funding is AFFIRMED and Sells’s motion for a COA is DENIED.




                                       27
