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

                                                                               FILED
                                      No. 13-70005                       March 17, 2014
                                                                          Lyle W. Cayce
GREGORY RUSSEAU,                                                               Clerk


                                                  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 Eastern District of Texas
                             USDC No. 6:10-CV-449


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Texas death row inmate Gregory Russeau appeals the district court’s
denial of federal habeas relief on his ineffective assistance of counsel,
prosecutorial misconduct, and conflict of interest claims. We AFFIRM.
                                             I.
       On May 30, 2001, 75-year-old James Syvertson was murdered at his
automobile repair garage in Tyler, Texas. The evidence presented at trial


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-70005
established that he left home for work at around 7:00 a.m. He ate lunch at a
cafeteria around 11:00 a.m., and spoke with a customer around 11:30 or 11:45
a.m. about repairing a car for her employee, Bob Bruner. Bruner dropped his
car off at the garage around 12:30 p.m. When he arrived the doors to the
garage were locked and a gray Chevrolet Corsica and a gray Audi (both of
which belonged to Mr. Syvertson) were parked outside. Bruner called the
garage at about 1:30 p.m. but the call was not answered.
      Mr. Syvertson’s wife went to the garage that afternoon and saw Mr.
Syvertson’s gray Chevrolet Corsica, the gray Audi, and Bruner’s vehicle parked
outside. She knocked on the door but no one answered, so she left and went
shopping.
      Bruner returned to the garage to pick up his car at around 5:30 p.m.
because he had not heard from Mr. Syvertson. The same cars were parked
outside. No one responded when he knocked on the doors.
      According to credit card records introduced at trial, Mrs. Syvertson made
a purchase at 5:36 p.m. and then returned to her husband’s garage after
shopping. His gray Corsica was still parked outside. The office door was locked
and she got no answer when she knocked.
      Mrs. Syvertson was worried about her husband so she went home and
got her daughter, Jeanette Jones. They returned to the garage at about 7:00
p.m. When they arrived, Mr. Syvertson’s gray Corsica was gone, and the door
to the office was unlocked.     Mrs. Syvertson went inside and found her
husband’s body on the garage floor, next to a white Chevrolet Corsica, which
he apparently was working on at the time of his murder. The wallet he usually
carried and the keys he usually kept clipped to his belt loop were missing, and
one of his pants pockets had been turned inside out.
      Jones called 911 and, when told by the 911 operator to move her father’s
body, she discovered that it was stiff. The medical examiner determined that
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Mr. Syvertson died from blunt-force head injuries that were consistent with
being struck by a hammer or other object.         Based on the contents of his
stomach, she expressed an opinion that he died between 11:00 a.m. and 2:00
p.m.
       A crime scene investigator with the Tyler Police Department found
fingerprints and a palm print on the white Corsica next to Mr. Syvertson’s
body. The palm print was located in an area accessible only if the hood of the
car was open. Those prints were determined in a later examination to be
Russeau’s prints.    Russeau’s trial counsel hired a fingerprint expert, who
reviewed and agreed with the State’s expert’s findings.
       Several witnesses testified that they saw Russeau in the vicinity of the
garage on the day and evening of the murder. At about 7:30 that evening,
Russeau asked some friends for a ride to his mother’s house. On the way, he
pointed to a gray Corsica parked behind a house and told them that it was his
wife’s car and that it had broken down.          When the friends noticed the
emergency vehicles at Mr. Syvertson’s garage and wanted to drive past it,
Russeau urged them not to do so.
       Lashundra Hall testified that she saw Russeau smoking crack cocaine in
Longview, Texas on the evening of May 30. When she saw him again at about
3:20 a.m. the next morning, he was driving a gray Corsica. She got in the car
with him and they were stopped by Longview police about ten minutes later.
A Longview police officer testified that the title and registration documents for
the gray Corsica, which was confirmed as belonging to Mr. Syvertson, were
found in Russeau’s pocket.      Mr. Syvertson’s keys, which family members
testified that he always kept clipped to his belt loop, were in the ignition.
       After the police processed the crime scene, they released the garage to
the victim’s family. Tyler Police Detective Gregg Roberts asked the victim’s
son, David Syvertson, to go through the garage and search for anything that
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seemed to be missing or out of place. On June 4, David Syvertson found that
several tools were missing, and noticed that a hammer lying next to a container
on a shelf was out of place. He reported this information to Detective Roberts,
who collected the hammer, as well as the greasy bottle it was leaning against.
      On June 5, Detective Roberts obtained hair samples from Russeau’s
chest. Hair samples could not be taken from his head because it was shaved.
Detective Roberts testified that the nurse who plucked the hairs, Brenda Mills,
put them into an envelope that he provided to her. After collecting the hairs,
Detective Roberts took the samples to the Tyler Police property room.
      On June 6, Detective Roberts retrieved from the property room the
evidence bags containing the bottle, the hammer, and the envelope containing
Russeau’s chest hair samples, and took them to the Texas Department of
Public Safety Crime Lab in Garland, Texas. A criminalist at the Crime Lab
found two hairs on the top of the bottle. Detective Roberts testified that he did
not see any hairs on the bottle when he collected it from the garage, but he
explained that he did not conduct a thorough inspection because he did not
want to handle it much and risk disturbing any trace evidence that might be
present. On March 13, 2002, the Crime Lab reported that the DNA in the hairs
found on the bottle was consistent with Russeau’s DNA profile.
      Attorneys Clifton Roberson and Brandon Baade were appointed to
represent Russeau at trial. The prosecution’s theory of the case was that
Russeau murdered Mr. Syvertson between 11:30 a.m. and 1:00 p.m., and left
the scene with Mr. Syvertson’s wallet. After spending the afternoon buying
and smoking crack cocaine, he then returned to the garage at approximately
6:00 p.m., when he stole Mr. Syvertson’s gray Corsica. The defense theory was
that Detective Roberts planted Russeau’s hairs on the bottle retrieved from the
crime scene and that although Russeau stole Mr. Syvertson’s automobile, the
prosecution failed to prove that he had murdered Mr. Syvertson. The jury
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found Russeau guilty of capital murder committed during the course of a
robbery.
       At the punishment phase, Russeau’s brother and sister testified as
mitigation witnesses. Defense counsel then asked for an ex parte hearing. At
that hearing, defense counsel told the court they had three additional persons
they wanted to call as mitigation witnesses, but that Russeau had instructed
them not to call any more witnesses. 1 The trial court addressed Russeau, who
confirmed that his lawyers were following his instructions not to call any
additional witnesses. Russeau said he knew he was going to get the death
penalty anyway, and did not want to put any more stress on his family.
       The trial court sentenced Russeau to death after the jury answered
affirmatively the special issues on future dangerousness and whether Russeau
caused Mr. Syvertson’s death and answered negatively the special issue on
mitigation. The trial court appointed Don Killingsworth to represent Russeau
on direct appeal and appointed Jeff Haas to represent him in state post-
conviction proceedings.
       On October 15, 2004, while the direct appeal was pending, Haas filed a
state habeas application in the trial court. He asserted three claims: (1) the
trial court interfered with Russeau’s Sixth Amendment right to counsel,
resulting in the failure to offer mitigation evidence at the punishment phase;
(2) trial counsel provided ineffective assistance by failing to call witnesses to



       1 The three witnesses defense counsel wanted to call were (1) Russeau’s fourth grade
teacher, Irma Miller, to testify that Russeau was a slow learner and had learning disabilities;
(2) Phenicee Neal, the mother of Russeau’s child who was born with a birth defect, to testify
that Russeau had a special relationship with his daughter; and (3) Tyler Police Officer Ricky
Graham, to testify that in 1999, while Russeau was assisting the Tyler Police as a confidential
informant, he made accusations that members of the Tyler Police Department provided him
with crack cocaine, which led to an internal affairs investigation. The purpose of that
testimony was to establish a motive for the police to plant evidence to frame Russeau for Mr.
Syvertson’s murder.
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                                       No. 13-70005
contradict the State’s testimony at the guilt-innocence stage; 2 and (3) trial
counsel provided ineffective assistance by failing to develop the probability, if
not a possibility, that hair evidence was planted by the police.
       On December 2, 2004, the state trial court conducted an evidentiary
hearing on the claims raised in the state habeas application. Roberson and
Baade, Russeau’s trial counsel, testified at the hearing and, after being ordered
to do so by the trial court, answered questions about their discussions with
Russeau about trial strategy regarding the decision not to cross-examine Mrs.
Syvertson and their decisions with respect to the presentation of evidence in
support of the theory that police planted Russeau’s hairs on the bottle.
       On February 7, 2005, the trial court entered findings of fact and
conclusions of law, recommending that state habeas relief be denied. The court
found that it was a theme of the defense that Russeau’s hairs were planted on
the bottle retrieved from the crime scene. The court found that the credible
evidence is that the hairs were not planted by the Tyler Police Department and
that trial counsel effectively raised the allegation of evidence being planted by
the police.    The court concluded that the evidence, regardless of the hair
analysis, was sufficient to support the verdict and sentence and that the
inclusion of the hair analysis evidence did not result in an erroneous judgment,
did not result in a denial of Russeau’s rights, and did not support a finding of
ineffective assistance of counsel.
       While Russeau’s state habeas application was pending in the Texas
Court of Criminal Appeals (“TCCA”), that court affirmed his conviction on
direct appeal on June 29, 2005. Russeau v. State, 171 S.W.3d 871 (Tex. Crim.


       2  Russeau alleged that trial counsel rendered ineffective assistance at the guilt-
innocence phase by failing to challenge alleged inconsistencies between Mrs. Syvertson’s trial
testimony and a statement she had given to a police officer after the murder, regarding her
visits to the garage on the day of the murder, and by failing to develop the theory that the
police planted his hairs on the bottle.
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App. 2005).       However, the TCCA vacated Russeau’s death sentence and
remanded the case for a new punishment hearing on the ground that the
Confrontation Clause was violated by the admission of prison disciplinary
reports under the business records exception to the hearsay rule. Id. at 881.
The Supreme Court of the United States denied Russeau’s petition for a writ
of certiorari regarding his conviction. Russeau v. Texas, 548 U.S. 926 (2006).
      Although both Roberson and Baade had testified at the state habeas
evidentiary hearing and there were ineffective assistance claims regarding
their trial performance pending in the TCCA, the trial court appointed them
to represent Russeau at the new punishment hearing. In November 2005, the
trial court granted defense motions for appointment of an investigator and for
expert assistance for future dangerousness and mitigation issues.
      At a pretrial hearing on November 17, 2006, in preparation for Russeau’s
second punishment hearing, Russeau asked the trial court to appoint different
counsel. He maintained that Roberson and Baade had waived the attorney-
client privilege when they testified at the state habeas evidentiary hearing and
that, as a result, the prosecution understood the defense strategy. He also
argued that they had provided ineffective assistance at his first punishment
trial, and asserted that there had been a breakdown in communication
between them. The trial judge denied Russeau’s request for different counsel,
finding that Roberson and Baade had testified only because the trial court had
ordered them to do so in order to decide the ineffective assistance claims in
Russeau’s state habeas application. The trial court pointed out that it had
found that trial counsel were not ineffective and that the TCCA had reached
the same conclusion. (The trial court was mistaken—the TCCA had not yet
ruled on the claim at that time and did not adopt the trial judge’s findings on
it until 2011.)


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      At the second punishment hearing, conducted in April 2007, the State
called as witnesses Dr. Sue Stone, Dr. Tynus McNeel, and forensic psychologist
Edward Gripon, all of whom had also testified in the first punishment hearing,
to testify regarding Russeau’s future dangerousness.       All three of them
testified that, in the light of Russeau’s criminal and prison records and the
extreme nature of the murder, their professional opinion was that he would
probably be a future danger to society. The State also presented evidence of
Russeau’s extensive criminal history, as well as the testimony of Texas
Department of Corrections guards and local law enforcement officers who had
dealt with Russeau over the years regarding his disciplinary history and
conduct while in custody. The defense called only one witness at the second
punishment hearing, a Tyler Police detective who was presented in an effort to
cast doubt on Russeau’s guilt of the murder of Mr. Syvertson. Although the
record reflects that Russeau’s counsel had family members and other witnesses
ready to testify, Russeau, just as he did at his first punishment hearing,
instructed his counsel not to call any mitigation witnesses. The trial court
again sentenced Russeau to death after the jury answered affirmatively the
special punishment issues on future danger and causing the death of Mr.
Syvertson and answered negatively the special issue on mitigation. The trial
court appointed Jeff Haas to represent Russeau in state habeas proceedings
and appointed Don Killingsworth to represent Russeau on direct appeal.
      On May 21, 2009, Haas filed a second state habeas application, alleging
that trial counsel rendered ineffective assistance at the second punishment
hearing by (1) failing to argue that Russeau’s retrial on punishment only
violated the Sixth, Eighth, and Fourteenth Amendments; (2) failing to request
a hearing on the admissibility of the State’s expert testimony regarding future
dangerousness; and (3) failing to call any witnesses to challenge the State’s
experts’ testimony that future dangerousness can be predicted.          At the
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evidentiary hearing on November 20, 2009, Russeau attempted to raise four
additional claims, pro se, because Haas had refused to include them in the state
habeas application. His fourth pro se claim challenged the trial court’s refusal
to appoint new counsel to represent him at the second punishment hearing.
Although he did not identify the precise legal basis for the claim, he referred
to the attorney-client privilege and his allegations of ineffective assistance of
counsel in the first state habeas application.
       On July 1, 2009, the TCCA affirmed Russeau’s death sentence imposed
following the second punishment hearing. Russeau v. State, 291 S.W.3d 426
(Tex. Crim. App. 2009).
       On May 5, 2010, the trial court entered findings of fact and conclusions
of law, recommending that Russeau’s second state habeas application be
denied.    The court concluded that Russeau was not denied the effective
assistance of counsel as a result of the trial court’s refusal to appoint new
counsel for his defense in the second punishment trial. The court stated that
there had been no showing of any professional deficiency by trial counsel and
no reasonable probability that but for counsel’s unprofessional errors, the
result of the trial would have been different. The court found further that there
is nothing in the trial record that suggested that trial counsel were actually
alienated by Russeau’s claim that they rendered ineffective assistance in the
first trial.
       On August 25, 2010, the TCCA adopted the trial court’s findings and
conclusions and denied relief on all three claims raised in Russeau’s second
state habeas application.    Ex parte Russeau, No. WR-61389-02, 2010 WL
3430765 (Tex. Crim. App. Aug. 25, 2010). The TCCA acknowledged Russeau’s
attempt to raise four additional claims at the evidentiary hearing, but refused
to consider those claims on the merits, and expressly rejected the trial court’s
findings and conclusions as to those claims, because they were not properly
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presented in the state habeas application pursuant to the provisions of Article
11.071 of the Texas Code of Criminal Procedure. Id. at *1. The TCCA also
noted that Russeau did not have a right to hybrid representation. Id.
      In February 2011, the TCCA adopted the trial court’s findings and
conclusions and denied state habeas relief as to the claims raised in Russeau’s
first state habeas application. Ex parte Russeau, No. WR-61389-01, 2011 WL
1158777 (Tex. Crim. App. Feb. 16, 2011).
      On August 24, 2011, Russeau’s federal habeas counsel filed a skeletal
petition. They filed a supplemental petition on February 15, 2012, raising nine
claims for relief. The district court denied federal habeas relief, but sua sponte
granted a COA for three issues: (1) whether trial counsel rendered ineffective
assistance by failing to argue at trial that law enforcement planted evidence;
(2) whether Russeau’s hairs found on the bottle collected from the crime scene
were the product of prosecutorial misconduct in violation of his Fourteenth
Amendment due process rights; and (3) whether Russeau was denied due
process and the effective assistance of counsel during his second punishment
trial when the trial court appointed the same attorneys who represented
Russeau at his first trial while there were pending, unadjudicated claims of
ineffective assistance of counsel against those attorneys regarding their
performance at the first trial. Russeau v. Thaler, No. 6:10-CV-449, 2012 WL
6706019 (E.D. Tex. Dec. 26, 2012).
                                         II.
      The district court’s grant of a COA to Russeau gives this Court
jurisdiction to review the claims certified by the district court. See 28 U.S.C. §
2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). “In an appeal of
the district court’s denial of habeas relief, this court reviews the district court’s
findings of fact for clear error and its conclusions of law de novo, applying the
same standard of review that the district court applied to the state court
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decision.”   Roberts v. Thaler, 681 F.3d 597, 603 (5th Cir. 2012) (internal
quotation marks and citations omitted).
      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
§§ 101-108, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended at 28
U.S.C. §§ 2244, 2253-2266), provides that a district court may not grant habeas
relief with respect to any claim that was adjudicated on the merits in the state
court proceedings, unless the state court’s denial of relief
           (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).
      “A state court’s decision is contrary to Supreme Court precedent if: (1)
‘the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law’; or (2) ‘the state court confronts facts that
are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [that of the Supreme Court].’” Pippin v. Dretke,
434 F.3d 782, 787 (5th Cir. 2005) (alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 405 (2000)). “‘A state court’s decision is an unreasonable
application of clearly established federal law whenever the state court
identifies the correct governing legal principle from the Supreme Court’s
decisions but applies that principle to the facts of the prisoner’s case in an
objectively unreasonable manner.’” Id. (quoting Young v. Dretke, 356 F.3d 616,
623 (5th Cir. 2004)). “An unreasonable application may also occur if ‘the state
court either unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should apply.’” Id. at 787–

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88 (alteration in original) (quoting Young, 356 F.3d at 623). The state court’s
factual findings are presumed to be correct unless a petitioner “rebut[s] the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
      A federal court may not grant habeas relief to a state prisoner unless
“the applicant has exhausted the remedies available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A). However, habeas relief may be denied on the merits,
notwithstanding the petitioner’s failure to exhaust state court remedies. 28
U.S.C. § 2254(b)(2). “If a prisoner fails to exhaust state remedies and the court
to which the prisoner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally barred due
to the prisoner’s own procedural default, federal courts are barred from
reviewing those claims.” Woodfox v. Cain, 609 F.3d 774, 793 (5th Cir. 2010)
(internal quotation marks and citation omitted). Further, this Court “may not
review a habeas claim if the last state court to consider that claim expressly
relied on a state ground for denial of relief that is both independent of the
merits of the federal claim and an adequate basis for the court’s decision.”
Roberts, 681 F.3d at 604 (emphasis, internal quotation marks, and citation
omitted).     “Thus, as a rule, a state prisoner’s habeas claims may not be
entertained by a federal court when (1) a state court has declined to address
those claims because the prisoner had failed to meet a state procedural
requirement, and (2) the state judgment rests on independent and adequate
state procedural grounds.” Id. (alterations, internal quotation marks, and
citations omitted).
      A federal court may consider the merits of a procedurally defaulted claim
if the petitioner shows “cause for the default and prejudice from a violation of
federal law.” Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012) (citing Coleman
v. Thompson, 501 U.S. 722, 750 (1991)). In Martinez, the Supreme Court
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                                   No. 13-70005
answered a question left open in Coleman: “whether a prisoner has a right to
effective counsel in collateral proceedings which provide the first occasion to
raise a claim of ineffective assistance at trial.” 132 S. Ct. at 1315. The Court
held:
                Where, under state law, claims of ineffective assistance of
        trial counsel must be raised in an initial-review collateral
        proceeding, a procedural default will not bar a federal habeas court
        from hearing a substantial claim of ineffective assistance at trial
        if, in the initial-review collateral proceeding, there was no counsel
        or counsel in that proceeding was ineffective.
Id. at 1320. The standards of Strickland v. Washington, 466 U.S. 668 (1984),
apply in assessing whether initial-review habeas counsel was ineffective.
Martinez, 132 S. Ct. at 1318.
        Although Texas does not preclude prisoners from raising ineffective
assistance of trial counsel claims on direct appeal, the Court held in Trevino v.
Thaler, 133 S. Ct. 1911 (2013), that the rule of Martinez nevertheless applies
to Texas cases because “the Texas procedural system—as a matter of its
structure, design, and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial counsel on direct
appeal.” Id. at 1921.
        To succeed in establishing cause to excuse a procedural default of
ineffective assistance of trial counsel claims, the petitioner must show that (1)
his underlying claims of ineffective assistance of trial counsel are “substantial,”
meaning that he “must demonstrate that the claim[s] ha[ve] some merit,”
Martinez, 132 S. Ct. at 1318; and (2) his initial state habeas counsel was
ineffective in failing to present those claims in his first state habeas
application. See id.; Trevino, 133 S. Ct. at 1921.




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                                  No. 13-70005
                                       III.
      Having set forth the legal standards that govern our review, we now turn
to address each of Russeau’s claims.
                                       A.
      Russeau argues that his trial counsel rendered ineffective assistance by
(1) failing adequately to investigate and develop the issue of whether the police
planted the hairs found on the bottle; (2) failing to address whether the hairs
had been plucked or had fallen out; (3) failing to question the State’s witnesses
concerning what area of the body the hairs originated from; and (4) failing to
present expert testimony regarding how the hair samples were taken from
Russeau, what area of the body the hairs came from, and whether they were
plucked or fell out. Russeau argues that further testing by defense counsel to
determine whether any trace of follicular tissue might have been present on
the remaining hair shafts could have confirmed whether the hairs allegedly
found on the bottle after it was removed from the crime scene had been plucked
or had fallen out. He contends further that if Detective Roberts planted the
just-plucked hairs he obtained from Russeau on the bottle, then further testing
by the defense would have potentially exposed that fact. Russeau also
complains that defense counsel failed to question the State’s DNA expert about
whether she saw any follicular material on the hairs found on the bottle, which
would have suggested they were plucked from Russeau’s body and planted on
the bottle. Russeau asserts that he was prejudiced by defense counsel’s failure
to call an expert to corroborate his claim that the hairs found on the bottle were
plucked, because such testimony would have tied the hairs plucked from
Russeau’s body to the hairs on the bottle and would have further bolstered his
claim of police misconduct, likely resulting in an acquittal.
      The clearly established federal law governing ineffective assistance of
counsel claims is set out in Strickland v. Washington. “First, the defendant
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                                 No. 13-70005
must show that counsel’s performance was deficient.”             466 U.S. at 687.
“Second, the defendant must show that the deficient performance prejudiced
the defense.” Id. To show deficient performance, “the defendant must show
that   counsel’s   representation   fell    below     an   objective   standard    of
reasonableness.” Id. at 688. To demonstrate prejudice, a petitioner “must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “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.” Id. at 687.
       “Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Premo v. Moore, 131 S.
Ct. 733, 740 (2011); see also Harrington v. Richter, 131 S. Ct. 770, 785 (2011)
(“The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard. . . . A state court must
be granted a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.”).
       Russeau presented this claim in his first state habeas application. At
the post-conviction evidentiary hearing, trial counsel Brandon Baade testified
that it was one of the themes during trial that the hairs found on the bottle
had been planted. He acknowledged that the possibility of the hair having
been forcibly removed was important, but said that because the roots had been
removed from the hair shafts and had been consumed by the State’s DNA
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                                 No. 13-70005
testing, the defense expert could not make a determination whether the hairs
were plucked or how they may have been removed or what region of the body
they came from.     He said that he was not contacted by the prosecution
regarding the DNA tests that were going to be conducted and would consume
the roots of the hairs.   Roberson, Russeau’s other trial attorney, testified
similarly that the defense hair expert could not do anything with the hairs
because the roots had been consumed during the State’s testing.
      The TCCA adopted the trial court’s finding and conclusion that trial
counsel effectively raised the allegation of evidence being planted by the Tyler
Police Department, but that the credible evidence is that the hairs were not
planted by the police.
      The district court held that because Russeau offered no reason why his
attorneys should not have relied on the advice of their expert witness, he had
failed to establish that it was unreasonable for the state court to have found
that he had not overcome the strong presumption of his counsel’s competence.
      The district court correctly held that the state court’s denial of relief on
this claim was neither contrary to, nor an unreasonable application of,
Strickland. The record supports the state court’s finding that trial counsel
effectively raised the allegation that the hairs were planted on the bottle after
it was removed from the crime scene. In the opening statement at the guilt-
innocence phase of trial, defense counsel argued that if the State’s expert had
not consumed the roots of the hairs, it would have been possible to tell if the
hairs were plucked or just fell out. In cross-examination of Detective Roberts,
defense counsel elicited testimony that Roberts did not see any hairs on the
bottle when he collected it and that he did not count the number of hairs
plucked from Russeau by Nurse Mills. On cross-examination of Nurse Mills,
defense counsel elicited testimony that Nurse Mills did not count the number
of hairs she plucked from Russeau, that her initials were not on the envelope
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                                 No. 13-70005
containing the hair samples that she collected, and that it was possible that
she handed the hairs to Detective Roberts and allowed him to put them in the
envelope. On cross-examination of Anita Lewis, the custodian of the property
room at the Tyler Police Department, defense counsel elicited testimony that
she did not initial evidence when receiving it or releasing it because their
procedures did not require that, and that the way the hair samples were
packaged was not tamper-resistant. Officer Lewis also conceded on cross-
examination that Detective Roberts could have taken the evidence out of one
envelope and put it in another, and there would be no way for anyone to know.
On cross-examination of the State’s DNA expert, Lorna Beasley, defense
counsel elicited testimony that there was no way the Crime Lab could know
that evidence-tampering had occurred if the bottle arrived at the lab after
someone had put hairs on it.
      As the State points out, Russeau has not identified any specific evidence
that could have been uncovered by further investigation, has not explained
how further investigation would have resolved the question whether the hairs
discovered on the bottle retrieved from the crime scene were plucked or merely
fell out, and has not explained how a showing that the hairs found on the bottle
were plucked would have proved that they were planted by Detective Roberts.
Because the roots of the hairs found on the bottle were consumed during
testing by the Crime Lab, the defense expert could not have examined any
follicular material to determine whether it was consistent with forcible
extraction.
      Furthermore, Russeau cannot demonstrate that he was prejudiced by
the alleged deficiencies in counsel’s performance, because his hair was not the
only evidence that placed him at the scene of the crime on the day of the
murder. Russeau’s finger and palm prints were found on the white Corsica
inside the garage, next to Mr. Syvertson’s body. The palm print was inside the
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                                  No. 13-70005
hood of the car and could only have been left there when the hood of the car
was open. Although Russeau points out that the white Corsica was parked
outside the garage for several days before the murder, he points to no evidence
that the hood was open and that the vehicle’s engine compartment was
accessible to his hands while the vehicle was parked outside.
      Additional evidence of Russeau’s presence at the crime scene on the day
of the murder is the testimony that Mr. Syvertson always carried his car keys
on his belt. When his body was discovered, the keys were no longer on his belt,
but were in Russeau’s possession when he was arrested early in the morning
of the day after the murder, driving Mr. Syvertson’s car. In the light of the
additional evidence placing Russeau inside the garage on the day of the
murder, the state habeas court reasonably could have concluded that the jury
would have convicted Russeau even without the hairs from the bottle, and its
denial of relief on this claim was not based on an unreasonable application of
Strickland. We therefore affirm the district court’s denial of federal habeas
relief on Russeau’s ineffective assistance of trial counsel claim.
                                       B.
      We now turn to consider Russeau’s claim that Detective Roberts planted
Russeau’s hairs on the bottle recovered from the crime scene, in violation of his
Fourteenth Amendment due process rights.
      As we have already noted, the trial court found, in adjudicating
Russeau’s ineffective assistance of counsel claim, that the police did not plant
evidence. The district court held that although Russeau had shown that it was
possible that the hairs found on the bottle could have been planted by Detective
Roberts, his evidence fell well short of showing that it was unreasonable for
the state court to have found that they were not. The district court denied
relief on the claim because the state court’s decision was not based on an


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                                  No. 13-70005
unreasonable determination of the facts in the light of the evidence presented
in the state court proceedings.
      Russeau contends that the state trial court’s decision is unreasonable
because it ignores the circumstantial evidence that strongly suggests that
Detective Roberts planted the hairs on the bottle and then lied about it at trial.
Russeau relies on the following circumstantial evidence to support his claim:
      (1) His head was shaved at the time the hair samples were taken, but
Nurse Mills, who obtained the hair samples, testified initially that she plucked
hairs from his head, then later admitted that she could only have plucked them
from his chest.
      (2) Neither Nurse Mills nor Detective Roberts counted the number of
hairs that were plucked from Russeau’s chest.
      (3) Nurse Mills did not seal the envelope containing the chest hairs in a
way that would allow a determination of whether Detective Roberts opened
and then resealed the envelope before it was taken to the Crime Lab.
      (4) No precautions were taken to seal the bottle in a way to prevent
tampering, and so there is no way to know whether Detective Roberts opened
the bag containing the bottle, placed Russeau’s hairs on the bottle, and then
resealed the bottle in a new bag with new evidence tape prior to delivering the
items to the Crime Lab.
      (5) Detective Roberts testified that when he collected the bottle from the
crime scene, he did not notice any hairs on it, yet the criminalist at the Crime
Lab found the hairs simply by looking at the bottle with a flashlight.
      Russeau argues that the hairs found on the bottle were the only evidence
linking him to the crime scene. He discounts the finger and palm prints that
he left on the white Corsica that Mr. Syvertson was repairing when he was
murdered, asserting that his prints may have been left on the vehicle during
the two or three days while it was parked outside the garage.
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                                  No. 13-70005
      The district court held that Russeau’s prosecutorial misconduct claim
was adjudicated on the merits by the state court. The State argues, however,
that to the extent Russeau raised the issue of evidence-planting in state court,
he did so only in the context of his Sixth Amendment ineffective assistance of
counsel claim, and he did not assert a prosecutorial misconduct or due process
claim. The State argues that Russeau’s allegation that the State knowingly
presented false testimony, even if sufficient to present a Fourteenth
Amendment claim, is not the same Fourteenth Amendment claim he presented
in his federal habeas petition. Finally, the State argues that even if Russeau
did exhaust the claim, the district court correctly denied habeas relief because
Russeau has not demonstrated that the state court unreasonably found that
the police did not plant evidence.
      In his state habeas application, Russeau asserted that it was possible
that the State proffered false testimony which, if true, requires a new trial if
the false testimony could have affected the jury’s verdict. In the alternative,
he claimed that trial counsel rendered ineffective assistance by failing to
present evidence to question the validity of the State’s evidence regarding the
hair analysis.    His proposed conclusions of law contained the following
proposed conclusions: “The destruction of the hair roots without allowing the
defense a chance to test the hair roots for follicular tissue violates due process”;
and “Defendant’s due process rights under the Fourteenth Amendment were
violated due to the destruction of the hair roots prior to his ability to have his
experts examine these hair roots for the presence or absence of follicular
tissue.”
      It is not necessary for us to decide whether Russeau exhausted this claim
because, even if the district court erred by holding that the claim was
adjudicated on the merits in state court, it did not err by denying relief on the
claim. See Rocha v. Thaler, 626 F.3d 815, 820 n.11 (5th Cir. 2010) (citing 28
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                                 No. 13-70005
U.S.C. § 2254(b)(2)) (“AEDPA allows a federal court to deny a habeas petition
on its merits even if the claims it contains are unexhausted.”).
      As the district court observed, the circumstantial evidence that Russeau
relies on establishes, at the most, a mere possibility that the hairs could have
been planted by Detective Roberts. There is considerable evidence in the
record to support the state court’s finding that the police did not plant the
hairs. Detective Roberts testified that he collected the bottle from the crime
scene, placed it in a bag, sealed the bag, and turned it in to the property room
at the Tyler Police Department. He said that he did not have access to the
property room and that he had not opened the bag after sealing the bottle in
it. After defense counsel insinuated, during cross-examination of the State’s
witnesses, that Detective Roberts had planted the hairs on the bottle, the
prosecution called Detective Roberts to the stand again, where he expressly
denied having tampered with any of the evidence. He testified that he had
been in law enforcement for seventeen years and had worked on fifty to sixty
murder cases and had never had such an allegation made against him in his
career. In closing argument at the guilt-innocence phase of the trial, the
prosecutor pointed out that there was no motive for Detective Roberts to risk
his career and going to prison for tampering with evidence.
      We agree with the district court that Russeau has not demonstrated that
the state court unreasonably found that the police did not plant the hairs on
the bottle. We therefore hold that the district court did not err by denying
federal habeas relief on Russeau’s prosecutorial misconduct claim.
                                       C.
      We now turn our attention to the final issue certified by the district court
and that is Russeau’s claim that the trial court’s refusal to appoint new counsel




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                                       No. 13-70005
for his second punishment trial violated his Sixth Amendment right to counsel 3
because Baade and Roberson, who represented him at the first trial, had a
conflict of interest as a result of his ineffective assistance claim against them
based on their performance at the first trial and their testimony at the state
habeas evidentiary hearing.
       Russeau did not present this claim in his second state habeas
application. Instead, he attempted to raise it pro se at his second state habeas
evidentiary hearing, notwithstanding the fact that he was represented by
counsel (Haas), who was present at that hearing. Russeau argued that Baade
and Roberson should not have been appointed to represent him at his second
punishment hearing because he had accused them of ineffective assistance in
his first state habeas application, and they had violated the attorney-client
privilege by testifying at the initial state habeas evidentiary hearing. 4 The
trial court agreed that Russeau’s allegations of ineffective assistance resulted
in a waiver of the attorney-client privilege with respect to those allegations,
but explained to Russeau that his counsel did not give up any rights. Instead,
they were ordered by the court to respond to the allegations of ineffective
assistance in his state habeas application. Construing his allegation as an




       3  Russeau’s federal habeas petition alleges a Fourteenth Amendment due process
violation, and the COA granted by the district court also refers to such a violation. However,
Russeau’s brief filed in this court is based solely on the Sixth Amendment; he does not
mention due process or the Fourteenth Amendment in connection with this conflict of interest
claim.
        4 Much of the testimony of Baade and Roberson at the first state habeas evidentiary

hearing dealt with Russeau’s allegations of ineffective assistance at the guilt-innocence phase
of the first trial. With respect to the punishment phase of the first trial, their testimony
described Russeau’s refusal to allow them to present the testimony of additional mitigation
witnesses and the testimony of a police officer regarding Russeau’s allegation that police
officers provided him with crack cocaine while he was working as confidential informant, to
establish a motive for the police to plant evidence to frame Russeau for Mr. Syvertson’s
murder. As we have noted, Baade and Roberson were prepared to present additional
witnesses at the second punishment trial, but Russeau again refused to allow them to do so.
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                                  No. 13-70005
ineffective-assistance claim, the trial court denied relief on the merits under
Strickland. On appeal, however, the TCCA held that the pro se claims raised
by Russeau at the evidentiary hearing were not properly presented to the trial
court in a writ application pursuant to the provisions of Article 11.071 of the
Texas Code of Criminal Procedure.
      The district court held that this claim was adjudicated on the merits by
the state court. It concluded that, assuming arguendo that Russeau’s pending
allegation of ineffective assistance created a conflict with his trial counsel at
the time of his second sentencing hearing, the issue was whether that assumed
conflict adversely affected his counsel’s performance. The district court held
that Russeau had provided neither explanation nor evidence as to how the
alleged conflict affected counsel’s performance. In the absence of any showing
of an adverse effect on counsel’s performance, the district court held that the
state court’s rejection of this claim was neither contrary to, nor the result of an
unreasonable application of clearly established federal law.
      Russeau argues that the district court erred by applying AEDPA
deference and instead should have reviewed his conflict of interest claim de
novo because he raised it for the first time in federal court. He asserts that as
a result of the “negligence” of his state habeas counsel, the claim was not
included in his state habeas application. The State counters that although the
district court reached the correct result in denying relief, the district court was
mistaken in concluding that the conflict of interest claim was adjudicated on
the merits, because the TCCA denied the claim for failure to comply with an
adequate and independent state procedural rule. Thus, the State contends
that Russeau is not entitled to de novo review of his conflict of interest claim
because it is procedurally defaulted and Russeau has not demonstrated cause
and prejudice to excuse the default.


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                                  No. 13-70005
      The record is clear that Russeau objected to the appointment of the same
attorneys before the trial court, which ruled against him on the merits, having
already found in the first habeas proceeding that those same attorneys did not
render ineffective assistance. However, the TCCA expressly refused to adopt
the trial court’s findings and conclusions as to this claim and held that it was
not properly presented in Russeau’s state habeas application as required by
Article 11.071 of the Texas Code of Criminal Procedure. Thus it appears that
the last state court to consider this claim expressly relied on a state procedural
ground for the denial of relief.     In his appellate brief filed in this Court,
Russeau did not acknowledge that the TCCA held that this claim is
procedurally defaulted, which perhaps explains why he did not contend that
Article 11.071 is not an independent and adequate state procedural ground for
the TCCA’s decision and why he has not attempted to excuse the procedural
default by showing cause and prejudice. In a Rule 28(j) letter filed on March
9, the day before oral argument, Russeau claimed for the first time that under
Martinez v. Ryan and Trevino v. Thaler, the negligence of his state habeas
counsel constitutes cause for his procedural default of this claim.
      We need not decide whether the district court erred by applying AEDPA
deference to this claim. Even if Russeau could prove cause and prejudice to
excuse the procedural default, and even assuming that Martinez and Trevino
apply to conflict of interest claims, Russeau’s claim of actual conflict of interest
is not “substantial,” as required by Martinez and Trevino. This is true because
he still has not shown that the alleged actual conflict adversely affected his
counsel’s performance at the second punishment hearing.
      Under the Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980) standard, to
prove a Sixth Amendment violation, a petitioner must show “that an actual
conflict of interest adversely affected counsel’s performance.”          Perillo v.
Johnson, 205 F.3d 775, 781 (5th Cir. 2000). An “actual conflict” means counsel
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                                 No. 13-70005
was “compelled to compromise his or her duty of loyalty or zealous advocacy.”
Id. An “adverse effect” may be established by “evidence that some plausible
alternative defense strategy or tactic could have been pursued, but was not
because of the actual conflict.” Id. (internal quotation marks and citation
omitted). If the defendant establishes the existence of an actual conflict that
adversely affected counsel’s performance, he is not required to establish
prejudice under Strickland.       Id. at 781–82 (“Assuming the defendant
establishes an actual conflict that adversely affected counsel’s performance,
prejudice is presumed without any further inquiry into the effect of the actual
conflict on the outcome of the defendant’s trial.”).       “In the absence of
[Sullivan’s] actual conflict exception, a defendant claiming that his attorney
had a conflict of interest must show a reasonable probability that the conflict
prejudiced the defense.” Bostick v. Quarterman, 580 F.3d 303, 306 n.2 (5th Cir.
2009) (alterations in original) (internal quotation marks and citations omitted).
      Russeau acknowledges that his case does not involve multiple
representation and that this court has limited the Sullivan standard to such
cases, see Beets v. Scott, 65 F.3d 1258, 1270–71 (5th Cir. 1995) (en banc).
Nevertheless, he contends that his case should be governed by Sullivan rather
than Strickland because it presents the “unique posture” in which the former
client is the complaining party in the subsequent proceeding. He thus contends
that all he needed to show was an adverse effect on counsel’s performance
under Sullivan, and not a reasonable probability that the alleged conflict
affected the outcome of his second sentencing hearing, as required by
Strickland. We will assume, for purposes of this opinion, that the Sullivan
standard applies. However, Russeau must still establish that the assumed
conflict adversely affected his counsel’s performance at the second punishment
hearing.


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                                  No. 13-70005
      Russeau maintains that under de novo review he has established a clear
conflict of interest that adversely affected the outcome of his second trial,
because trial counsel did virtually nothing to prepare for the second
punishment trial, but instead stood on the same evidence that resulted in him
getting the death penalty at the first trial. In support, he cites the transcript
of an ex parte hearing conducted at the close of his second punishment trial.
The transcript of that ex parte hearing is not included in the state court records
that were provided to this Court. The volume cited by Russeau consists of a
single page that says “Sealed Ex Parte Hearing.” According to Russeau, he
testified at that hearing that his counsel had not had a single face-to-face
meeting with him following the order for a new punishment trial, and defense
counsel conceded at that hearing that they had not personally visited Russeau
at the jail in advance of his retrial, but had spoken with him on the telephone
and in the courtroom because the facts of his case and the punishment evidence
had not changed since the first trial. Russeau argues that counsel abdicated
their obligations by failing to do any additional work on his case and by failing
to consult adequately with him, face to face, about his decision to not present
a mitigation defense.
      The State argues that trial counsel did not breach the attorney-client
privilege by testifying in response to Russeau’s allegations of ineffective
assistance, because his ineffective assistance claim operated as a limited
waiver of the privilege.     The State also contends that Russeau has not
demonstrated a conflict between his interest and trial counsel’s personal
interest.   The State contends that further investigation and discovery of
additional mitigation evidence could not have had any effect on the outcome of
the second sentencing hearing because Russeau prevented his lawyers from
putting on a mitigation case.      Citing the federal habeas petition, which
apparently quoted the sealed ex parte transcript that is not in the record before
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                                  No. 13-70005
this Court, the State contends that Russeau told the trial court: “If you notice,
I’m telling them to stop, because it doesn’t matter to me. . . . I know they don’t
like it. They want to do more for what – I don’t see it’s worth it to me.”
      The record contradicts Russeau’s assertion that Roberson and Baade did
virtually nothing to prepare for the second punishment trial. Their motions
for payment, submitted after the conclusion of the second punishment trial,
reflect that they had conferences with the mitigation specialist and their
mental health expert, and that they also consulted with Russeau’s family
members about testifying for Russeau. Although Russeau complains that
counsel did not consult adequately with him about his decision not to present
mitigating evidence, the record reflects that Russeau had ample opportunities
to discuss that decision with counsel, including their meeting with him at the
jail during the second sentencing hearing.        Furthermore, the trial court
addressed Russeau on the record and clarified that he had instructed his
lawyers not to call mitigation witnesses and that he had made that decision
freely, knowingly, and voluntarily.    In sum, Russeau has not presented any
“evidence that some plausible alternative defense strategy or tactic could have
been pursued, but was not because of the [assumed] actual conflict.” See
Perillo, 205 F.3d at 781 (internal quotation marks and citation omitted). Thus,
he has failed to establish that any conflict of interest resulting from trial
counsel’s representation at the second punishment hearing adversely affected
counsel’s performance. Accordingly, the district court did not err by denying
federal habeas relief on Russeau’s conflict of interest claim.
                                       IV.
      Russeau has not demonstrated that the state court unreasonably applied
Strickland when it denied relief on his claim that trial counsel rendered
ineffective assistance by failing to argue that the police planted his hairs on
the bottle retrieved from the crime scene. Although is not clear whether
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                                 No. 13-70005
Russeau exhausted his prosecutorial misconduct claim, we affirm the district
court’s denial of relief on that claim because the circumstantial evidence relied
on by Russeau is inadequate to demonstrate that the state court unreasonably
found that the police did not plant evidence. Finally, Russeau’s conflict of
interest claim fails because, even assuming that he has established an actual
conflict of interest under Sullivan and Beets, he cannot demonstrate that the
alleged conflict had any effect on counsel’s performance at the second
sentencing hearing. We therefore AFFIRM the district court’s denial of federal
habeas relief.
                                                                   AFFIRMED.




                                       28
