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


                                      No. 12-70013                              FILED
                                                                          October 3, 2014
                                                                           Lyle W. Cayce
RICHARD LEE TABLER,                                                             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 Western District of Texas
                              USDC No. 6:10-CV-34


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge: *
       Petitioner Richard Tabler was convicted in Texas state court of capital
murder and sentenced to death. While Tabler’s mandatory direct appeal was
pending with the Texas Court of Criminal Appeals, Tabler requested to waive
his remaining postconviction appellate rights and the trial court granted his
request after determining that he was competent to do so. Following the denial
of his direct appeal, Tabler attempted to reinstate his right to state habeas



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-70013
proceedings. The Court of Criminal Appeals denied the motion. Tabler then
filed a petition for habeas corpus relief in federal district court, which denied
his petition and found that a certificate of appealability (COA) should not issue.
Tabler now requests that this court grant a COA pursuant to 28 U.S.C. §
2253(c). For the reasons that follow, Tabler’s application for a COA is denied.
                          FACTS AND PROCEEDINGS
I. Conviction and Sentencing
      On March 21, 2007, Tabler was convicted of capital murder for the
shooting deaths of Mohamed-Amine Rahmouni and Haitham Zayed. During
the penalty phase of his trial, the State presented to the jury Tabler’s
confession that he murdered two women for spreading news of his crimes.
Tabler admitted to luring the women to a lake with the promise of drugs and
then shooting them each multiple times with the same gun used to murder
Rahmouni and Zayed. The jury heard further testimony that Tabler had a
history of threatening law enforcement officers and fellow inmates.
      Tabler’s trial counsel presented mitigating evidence in an attempt to
show that Tabler was “not normal” and therefore undeserving of the death
penalty. This evidence included: (1) testimony from Tabler’s mother and sister
about his difficult childhood, potential birth trauma, and history of psychiatric
treatment; (2) testimony from Dr. Meyer Proler, a clinical neurophysiologist,
concerning an abnormality of the left temporal frontal region of Tabler’s brain
that causes difficulty learning, planning, and weighing the consequences of
actions; (3) testimony from Dr. Susan Stone, a psychiatrist, that Tabler
suffered from a severe case of attention deficit hyperactivity disorder,
borderline personality disorder, and a history of head injuries, all of which
inhibited his ability to rationally assess situations and control his impulses;




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and (4) testimony from Dr. Deborah Jacobvitz, a psychologist, regarding the
impact of parental neglect and abandonment on Tabler’s development.
      In rebuttal, the state called Dr. Richard Coons, a psychiatrist, who
diagnosed Tabler as having antisocial personality disorder. Dr. Coons testified
that although individuals with antisocial personality disorder may lack
remorse or concern for others, they are not compelled to commit criminal acts.
Following the State’s rebuttal, both parties presented closing arguments.
During the State’s closing, the prosecutor argued that Tabler’s troubled
childhood did not mitigate his culpability because it was not related to the
crimes for which he was convicted. After three hours of deliberation, the jury
found that Tabler presented a continuing threat to society and that there was
insufficient mitigating evidence to warrant a sentence of life imprisonment in
lieu of a death sentence. See Tex. Code Crim. Proc. art. 37.071 § 2(b), (e). The
trial court accordingly sentenced Tabler to death.
II. State Postconviction Proceedings
      On April 24, 2007, attorneys David Schulman and John Jasuta were
appointed as Tabler’s postconviction counsel.         Tabler was provided with
separate counsel for his direct appeal, which ran concurrently with his
postconviction habeas relief. The State filed its original brief in Tabler’s direct
appeal on October 1, 2008. Tabler’s habeas petition was thus required to be
filed no later than November 17, 2008. See id. art. 11.071 § (4)(a) (application
for writ of habeas corpus must be filed within 180 days after the convicting
court appoints counsel or 45 days after the state’s original brief is filed on direct
appeal, whichever date is later).
      No petition for habeas relief was filed. On May 15, 2008, Tabler informed
his attorneys that he wished to waive his postconviction appellate rights. On
August 11, 2008, Tabler sent a letter to the Court of Criminal Appeals waiving
his right to any state habeas proceedings and volunteering for execution. The
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Court of Criminal Appeals referred the matter to the state trial court judge
who had presided over Tabler’s criminal trial. The state trial court ordered a
hearing on Tabler’s competency to waive his appeals and ordered that Tabler
undergo examination by Dr. Kit Harrison. Dr. Harrison examined Tabler on
June 28, 2008, and found him to be mentally competent. At Tabler’s September
30, 2008 competency hearing, the state trial court considered Dr. Harrison’s
evaluation; offered Tabler, his attorneys, and the State an opportunity to
present additional evidence relevant to the competency determination; and
questioned Tabler in open court to determine whether his waiver was knowing
and voluntary. During this questioning, the judge presented Tabler with the
letter he had written to the Court of Criminal Appeals and asked him to
explain his request. Tabler replied: “Basically, I’m asking the Court of Appeals
to drop all of my appeals after my direct appeal. And should my direct appeal
be denied, I’m asking for an execution date as soon as possible.” Upon Tabler’s
instruction, Schulman and Jasuta did not contest the State’s evidence of
competency.     The state court found Tabler competent to waive his
postconviction rights.
      On June 29, 2009—nine months after the competency hearing and eight
months after his habeas petition was due—Tabler requested that his
postconviction rights be reinstated. On September 16, 2009, the Court of
Criminal Appeals rejected Tabler’s motion, finding that his decision to waive
his state postconviction appeals was knowing and voluntary and that his
failure to file a timely writ of habeas corpus was attributable to his own
continued insistence on foregoing that remedy. The Court of Criminal Appeals




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denied Tabler’s direct appeal on the merits three months later and Tabler filed
a petition for certiorari with the United States Supreme Court.
III. Motion for Stay of Execution and Petition for Habeas Corpus in
Federal Court
      On February 2, 2010, Schulman and Jasuta filed a request to stay
execution on Tabler’s behalf in the Western District of Texas so that he could
exhaust his state court remedies.     The district court granted the motion
pending the Supreme Court’s decision on Tabler’s petition for certiorari. But
on June 2, 2010 Tabler personally filed a motion to reconsider the stay,
claiming that his attorneys had filed the motion without his permission, and
again stating his intention to proceed to execution.       Tabler’s motion to
reconsider was forwarded to the Supreme Court along with Schulman and
Jasuta’s supplemental filing, in which they argued that Tabler was not
competent to waive his federal appeals.
      Tabler’s continued attempts to drop his appeals prompted the district
court to hold a second competency hearing. The court appointed Dr. Richard
Saunders to perform Tabler’s psychological evaluation, who concluded after
examination of Tabler and review of his mental health history that Tabler was
mentally competent. The district court considered Dr. Saunders’ opinion and
testimony at Tabler’s August 17, 2011 competency hearing and determined
that Tabler was mentally competent to waive his rights. The court found that
Tabler “is not presently suffering from a mental disease, disorder or defect
which prevents him from understanding his legal position and the options
available to him or which prevents him from making a rational choice among
his options.” Schulman appeared to agree with this conclusion, stating to the
court at the hearing: “I don’t think he’s incompetent in a legal sense . . . we




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were never trying to say he’s not competent in the sense to stand trial or be
executed but just that his decisions are not voluntary.”
       Although Tabler was deemed mentally competent, the district court
ruled that his waiver was not voluntary. In October of 2008—more than one
month after his original state court competency hearing—Tabler made a
threatening phone call to a state senator while on death row. An inquiry into
the call ultimately led to an investigation into cell phone smuggling in the
prison, which purportedly resulted in threats and harassment from prison staff
and fellow inmates. Whether or not Tabler’s perception matched reality, the
district court found that Tabler genuinely believed his family would be harmed
if he did not volunteer for execution and therefore found his attempt to waive
his federal habeas relief involuntary. On October 11, 2011, the district court
denied Tabler’s renewed motion to stay and abate the federal habeas
proceeding to attempt to exhaust his extant state court claims because Tabler
had waived those claims, the Texas trial and appeals courts had found Tabler
competent to execute the waiver, and there was nothing to indicate that
another attempt at exhaustion would succeed. Tabler subsequently filed a
federal habeas petition on November 13, 2011.
       Tabler’s petition asserted fourteen grounds for relief. Because Tabler
waived his state court postconviction rights, the district court held that only
those issues raised on direct appeal and rejected by the Court of Criminal
Appeals were exhausted, leaving four potential grounds for relief. 1 The only
non-defaulted claims were that: (1) the death penalty is unconstitutional as
applied to Tabler because he is mentally ill; (2) the prosecutor’s closing


       1Although the Court of Criminal Appeals rejected six of Tabler’s challenges, Tabler
raised only four of those claims in his federal habeas petition. The other two claims—a
challenge to the jury instructions and the admissibility of Tabler’s confessions—were neither
raised as independent grounds of relief nor adequately briefed. Accordingly, those claims
were waived.
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                                     No. 12-70013
argument at the punishment phase requiring the jury to find a nexus between
mitigating evidence and the crimes of conviction violated the Eighth and
Fourteenth Amendments; (3) trial counsel’s failure to object to that
unconstitutional argument constituted ineffective assistance of counsel; and
(4) Texas’s “12-10 Rule” violates the Due Process Clause. The district court
denied the second claim because Tabler’s trial counsel failed to object at trial
and rejected the remaining three claims on the merits.
IV. Application for Certificate of Appealability
      Following the denial of Tabler’s habeas petition, Marcia Widder replaced
Schulman and Jasuta as Tabler’s habeas counsel on appeal. Tabler raises four
issues in his application for a certificate of appealability: (1) whether the state
court competency hearing in which Tabler waived his postconviction appeals
violated his due process rights; (2) whether Tabler’s postconviction counsel
failed to raise meritorious claims challenging his conviction and death sentence
in state and federal postconviction proceedings, thereby causing Tabler to
forfeit his right to have the federal district court determine if he received
effective assistance of trial and appellate counsel; (3) whether the district
court’s denial of his federal habeas petition without the benefit of the full state
court record requires remand; and (4) whether trial counsel’s failure to object
to the prosecutor’s purportedly unconstitutional closing argument constituted
ineffective assistance of counsel.
                             STANDARD OF REVIEW
      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Tabler must obtain a COA before he is permitted to appeal the
district court’s denial of his requested habeas relief. A COA will not issue
under AEDPA’s deferential standard of review unless the petitioner makes “a
substantial showing of the denial of a constitutional right.”            28 U.S.C.
§ 2253(c)(2). The requisite showing is made by demonstrating that “reasonable
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                                  No. 12-70013
jurists could debate (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (internal quotation marks omitted). Unless and until a COA
has issued, federal courts lack jurisdiction to rule on the merits of appeals from
habeas petitioners. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
      The standard of review for the issuance of a COA varies depending on
whether the district court rejected the petition on the merits or on procedural
grounds only. If the district court denied the claim for relief on the merits, the
petitioner “must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529
U.S. at 484. If the claim was denied on procedural grounds, the petitioner
bears the additional burden of showing “that jurists of reason would [also] find
it debatable whether the district court was correct in its procedural ruling.” Id.
      AEDPA provides that when a habeas claim has been adjudicated on the
merits in state court, a federal district court may not grant habeas relief unless
the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court,” or “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)(1),
(2). “The question under AEDPA is not whether a federal court believes the
state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007). A state court’s findings of fact are presumed to be correct




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unless the petitioner rebuts the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
                                        DISCUSSION
I. The State Postconviction Competency Hearing Did Not Violate
Tabler’s Due Process Rights
       As an initial matter, we need not reach Tabler’s due process claim
because it was not presented to the district court. Parr v. Quarterman, 472
F.3d 245, 261 (5th Cir. 2006) (“We generally will not consider an issue raised
for the first time in a COA application.”). Tabler’s Rule 59(e) motion requesting
that the district court amend its judgment because counsel effectively
abandoned him at the state competency hearing is not sufficient to have
preserved the issue for appeal. See Simon v. United States, 891 F.2d 1154,
1159 (5th Cir. 1990) (Rule 59(e) motions “cannot be used to raise arguments
which could, and should, have been made before the judgment issued.”). 2 But
because the adequacy of the state competency hearing is relevant to Tabler’s
claim of ineffective assistance of counsel and attendant argument that such
ineffective assistance provides cause for his procedural default, we will explain
here why his due process challenge also fails on the merits.
       Unlike the factual findings of the trial judge that derive from the
competency hearing, the adequacy of the fact-finding procedure itself is a
question of law that we review de novo. Mata v. Johnson, 210 F.3d 324, 327
(5th Cir. 2000). A competency hearing provides constitutional due process if
the hearing court (1) orders and reviews a current examination by a medical
or mental health expert, (2) allows the parties to present any other relevant



       2 Tabler’s further assertion that the adequacy of the state competency hearing was
raised in the district court because that court relied on the validity of the waiver in denying
Tabler’s request to stay his federal habeas proceedings lacks merit. Vague references to the
sufficiency of the state court’s findings are inadequate to have preserved the issue for appeal.

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evidence on the question of competency, and (3) if the judge—on the record and
in open court—questions the petitioner “concerning the knowing and voluntary
nature of his decision to waive further proceedings.” Id. at 331. 3
       There is no question that Tabler’s state hearing satisfied this standard.
First, the trial court appropriately ordered an evaluation of Tabler’s mental
health by Dr. Harrison following Tabler’s request to waive his right to
postconviction collateral proceedings. Dr. Harrison’s examination ten weeks
before Tabler’s competency hearing was sufficiently current to satisfy due
process concerns. See Murray, 243 F. App’x at 54 (five-month-old expert report
satisfied due process).
       Second, it is undisputed that the trial court provided Tabler and his
attorneys an opportunity to present any evidence they deemed relevant to the
competency determination.           The thrust of Tabler’s argument is that his
attorneys’ failure to accept the court’s invitation to challenge his competency
rendered the hearing non-adversarial and thus constitutionally deficient. But
as the term “due process” suggests, the inquiry is concerned only with whether
a meaningful opportunity to present evidence was provided, not whether such
evidence was in fact presented. Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(“The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” (internal quotation marks
omitted)); see also Mata, 210 F.3d at 331 (competency hearing affords




       3Mata involved review of a federal district court hearing to determine the competency
of a defendant seeking to waive his federal habeas rights. Because the standard is a
constitutional one, this court has applied the Mata test in reviewing an analog state hearing.
See Murray v. Quarterman, 243 F. App’x. 51, 53-54 (5th Cir. 2007).

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petitioner due process by “allowing the parties to present any other evidence
relevant to the question of competency.” (emphasis added)). 4
       Third, the court questioned Tabler in open court and on the record to
determine that his waiver was both knowing and voluntary. In response to
questions from the court, Tabler affirmed that he had conferred with his
counsel and did not wish to file a state habeas petition, and that he understood
that if his direct appeal was denied, he would be executed. The court also
showed Tabler the letter he had written to the Court of Criminal appeals
stating his intention to waive postconviction relief and asked Tabler to explain
his request. Tabler replied that he was “asking the Court of Appeals to drop
all of my appeals after my direct appeal. And should my direct appeal be
denied, I’m asking for an execution date as soon as possible.” After confirming
that Tabler had not changed his mind since authoring the letter, the court
warned Tabler that if he should reverse course and decide to file a petition, the
Court of Appeals would consider it untimely and might decline to entertain it,
to which Tabler replied that he understood. 5 This was clearly sufficient under
Mata. Mata F.3d at 330-31 (the trial court “should seek to elicit a narrative
response from the defendant that he has been advised of his rights, that he


       4 Tabler’s own citations, which focus on a state court’s denial of the opportunity to
present evidence of incompetence, demonstrate this basic proposition. See Ford v.
Wainwright, 477 U.S. 399, 412-14 (1986) (“Any procedure that precludes the prisoner or his
counsel from presenting material relevant to his sanity or bars consideration of that material
by the factfinder is necessarily inadequate.” (emphasis added)).

       5 Tabler also argues that the trial court misled him regarding the timeline for filing
his state habeas petition by suggesting that his petition for habeas corpus would not be due
until after the Court of Criminal Appeals ruled on his direct appeal. Even were this true,
such an error would be harmless. Tabler was not only represented by counsel who would
know the correct timeframe for filing the petition, but Tabler was also waiving that right.
Because he was forfeiting his right to pursue collateral relief, it is irrelevant that the court
provided ambiguous information as to the filing deadline. Tabler does not assert that the
court misled him regarding the substance of his habeas rights (which it did not).

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understands the details and has discussed the matter with his attorney, and
that he wishes to waive his constitutional protections.”).
       Finally, several of Tabler’s challenges to the state court competency
hearing are challenges to the court’s factual finding of competency, not the
process itself. 6 In this regard, Tabler offers only his attorney’s opinion that he
is incompetent, his criticism of Dr. Harrison’s testimony as unreliable, and the
district court’s finding in the federal competency hearing that Tabler’s
attempted waiver of his federal habeas rights was involuntary. As to Tabler’s
argument that the result of his federal competency hearing undermines the
state court conclusion, a defendant’s competency is determined at the time the
waiver is made. And the federal district court did in fact conclude that Tabler
was mentally competent.           The court only disregarded Tabler’s attempted
waiver because of the alleged threats to his life arising out of an incident that
occurred after he waived his state postconviction appeals. Tabler’s attorney’s
opinion that Tabler is incompetent and an undefined challenge to Dr.
Harrison’s evaluation do not approach the showing of clear and convincing
evidence needed to rebut the state trial court’s competency determination (and




       6 A defendant’s competency to waive habeas proceedings is determined by whether “he
has capacity to appreciate his position and make a rational choice with respect to continuing
or abandoning further litigation or on the other hand whether he is suffering from a mental
disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees
v. Peyton, 384 U.S. 312, 314 (1966). The capacity for “rational choice” in this context is
equivalent to the capacity for “rational understanding” in determining a defendant’s
competency to stand trial. Godinez v. Moran, 509 U.S. 389, 398 n.9 (1993); see also
Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir. 1985) (describing three-part test for
determining whether a defendant is competent to waive postconviction relief).
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the Court of Criminal Appeals’ affirmance). Tabler’s state competency hearing
and the resulting determination of competency did not deny him due process.
II. Tabler’s Postconviction Counsel Were Not Constitutionally
Ineffective and Tabler Waived Any Potential Claims of Ineffective
Assistance of Trial Counsel
      Tabler argues that he was denied the effective assistance of counsel in
both his state and federal habeas proceedings and that his counsels’
constitutionally-deficient performance qualifies as cause to excuse the
procedural default of his ineffective-assistance-of-trial-counsel claims.      To
prevail on an ineffective-assistance-of-counsel-claim, a petitioner must
demonstrate that (1) “counsel’s representation fell below an objective standard
of reasonableness” and that (2) “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Tabler,
through new counsel Widder, alleges that Schulman and Jasuta provided
ineffective assistance at his state competency hearing by failing to challenge
his competence, which in turn led to the waiver of his right to state habeas
proceedings in which he could have raised claims of ineffective assistance of
his state trial counsel. Because Schulman and Jasuta were also Tabler’s
federal habeas counsel, Tabler claims that they were further ineffective in his
federal habeas proceeding because they faced an ethical conflict in raising
claims about their own ineffectiveness in the state competency hearing.
      Insofar as Tabler is alleging that ineffective assistance of his habeas
counsel alone requires a remand to the district court to re-litigate his petition,
he is mistaken. It is well-established that there is no federal constitutional
right to counsel in postconviction proceedings. Coleman v. Thompson, 501 U.S.
722, 756-57 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). “Because
a petitioner does not have a constitutional right to counsel in post-conviction
habeas proceedings, it follows that a petitioner cannot claim ineffective
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                                  No. 12-70013
assistance of counsel in such proceedings.” Irving v. Hargett, 59 F.3d 23, 26
(5th Cir. 1995).
      In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court
recognized a “narrow exception” to the general rule that there is no right to
counsel in collateral proceedings, holding that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 1315; see also Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013) (Martinez
applies to Texas state habeas proceedings).       An attorney’s error on direct
appeal implicates the Sixth Amendment, and where an “initial-review
collateral proceeding is the first designated proceeding for a prisoner to raise
a claim of ineffective assistance at trial, the collateral proceeding is in many
ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance
claim.” Martinez, 132 S. Ct. at 1317. But the Court was clear that the Martinez
exception “does not extend to attorney errors in any proceeding beyond the first
occasion the State allows a prisoner to raise a claim of ineffective assistance at
trial, even though that initial-review collateral proceeding may be deficient for
other reasons.” Id. at 1320. Moreover, Martinez is an equitable rule, not a
constitutional one, and does not provide defendants a freestanding
constitutional claim to raise in a federal habeas petition. Id. at 1319.
      To fall within the Martinez exception and avoid procedural default of any
claim of ineffective assistance of trial counsel, Tabler must demonstrate (1)
that his state habeas counsel were ineffective in an initial-review collateral
proceeding, “where the claim should have been raised,” and (2) “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.” Id. at 1318. Because Tabler waived his state postconviction rights, the
only state habeas proceeding that occurred was the competency hearing. As
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Tabler could not have raised claims of ineffective assistance of trial counsel at
that hearing, no “initial-review collateral proceeding”—as defined in
Martinez—ever took place. The Supreme Court has not expressly extended the
reasoning of Martinez’s “narrow exception” to attorney errors that prevent an
initial-review collateral proceeding from being held (and thus prevent a
defendant from raising claims of ineffective assistance of trial counsel). But
we need not resolve that question here. Even if ineffective assistance of state
habeas counsel at a postconviction competency hearing provides cause for the
procedural default of ineffective-assistance-of-trial-counsel claims, Tabler fails
to demonstrate that the performance of his state habeas counsel and state trial
counsel was constitutionally deficient.
      To revive his ineffective-assistance-of-trial-counsel claims in federal
court (assuming Martinez applies), Tabler must first show that his habeas
counsels’ performance at his competency hearing was ineffective under
Strickland. But Schulman and Jasuta did not “abandon” Tabler at the hearing
as he now claims. To the contrary, they followed his explicit instructions.
“Neither the Supreme Court nor this court has ever held that a lawyer provides
ineffective assistance by complying with the client’s clear and unambiguous
instructions to not present evidence.” Wood v. Quarterman, 491 F.3d 196, 203
(5th Cir. 2007). The state trial court, the Court of Criminal Appeals, the
federal district court, and both doctors appointed to evaluate Tabler found him
mentally competent.     It was completely reasonable for habeas counsel to
conclude that Tabler was competent, as they subsequently represented to the
district court, and to comply with his directive not to argue otherwise. See Va.
Legal Ethics Op. No. 1737 (1999) (If a capital murder defendant is found
competent by a psychiatrist and desires a sentence of death rather than life




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                                      No. 12-70013
imprisonment, his attorney “is ethically bound to carry out the client’s
directive, even though such instruction is tantamount to a death wish.”). 7
       Martinez does not provide a vehicle to set aside procedural default of any
constitutional claim, but only preserves ineffective-assistance-of-trial-counsel
challenges forfeited because of ineffective assistance of habeas counsel. Even
if Tabler could show that his state habeas counsel were ineffective, he has not
made a “substantial showing” of his underlying claim of ineffective assistance
of trial counsel required by Martinez. Tabler has merely listed potential errors
in bullet point format. Holding that a list of hypothesized errors constitutes
the requisite “substantial showing” of ineffective assistance at trial would
transform Martinez from a “narrow exception” providing cause for procedural
default into a virtual requirement of complete review of the state trial on
federal habeas. We decline to do so.
       Tabler also offers a corollary ineffective assistance argument predicated
on his statutory right to counsel pursuant to 18 U.S.C. § 3599(a)(2). Citing
recent Fourth Circuit jurisprudence, Tabler asserts that he was denied
effective assistance in his federal habeas action because his state habeas
counsel also served as his federal habeas counsel, and thus were necessarily
impugned with an ethical conflict in identifying potential Martinez claims. The
Fourth Circuit has held that “if a federal habeas petitioner is represented by
the same counsel as in state habeas proceedings, and the petitioner requests
independent counsel in order to investigate and pursue claims under Martinez


       7 It is also doubtful that Tabler could establish prejudice. The same judge that
presided over Tabler’s competency hearing presided over his trial, and thus would have
already heard much of the evidence regarding Tabler’s mental health, including testimony
from four mental health professionals during the punishment phase. See Dennis ex rel. Butko
v. Budge, 378 F.3d 880, 894 (9th Cir. 2004) (“[J]udges who have an opportunity to observe
and question a prisoner are often in the best position to judge competency, especially . . .
where the judge has had more than one opportunity to observe and interact with the
prisoner.”).
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                                  No. 12-70013
. . . , qualified and independent counsel is ethically required.” Juniper v. Davis,
737 F.3d 288, 290 (4th Cir. 2013). “This is because a clear conflict of interest
exists in requiring petitioner’s counsel to identify and investigate potential
errors that they themselves may have made in failing to uncover
ineffectiveness of trial counsel while they represented petitioner in his state
post-conviction proceedings.” Fowler v. Joyner, 753 F.3d 446, 462 (4th Cir.
2014) (internal quotation marks and alterations omitted).
      Whatever the merits of the Fourth Circuit’s rule, it is not applicable here.
The purpose of appointing independent counsel is to investigate whether any
potential Martinez claims exist. Id. at 463. Tabler was appointed independent
counsel for his federal appeal who has had the opportunity to investigate and
present these claims. See id. (denying motion for remand and appointment of
independent counsel where independent counsel had already been provided).
Moreover, the Fourth Circuit’s rule was crafted for the typical Martinez
scenario, where state habeas counsel’s ineffectiveness is his failure to uncover
ineffectiveness of trial counsel. What is really at issue here is whether Tabler
was competent to waive his postconviction rights. Tabler is alleging that his
habeas counsel were ineffective for failing to challenge his competency—not for
failing to uncover ineffective assistance of trial counsel claims, which they
never had the opportunity to do. Because Tabler’s habeas counsel were not
ineffective in his competency hearing, he cannot prevail on his Martinez claim
even if he could otherwise make a substantial showing of ineffectiveness of
trial counsel (which he does not). See Martinez, 132 S. Ct. at 1318 (to excuse
procedural default of ineffective-assistance-of-trial-counsel claims, prisoner




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                                  No. 12-70013
must first show that his state habeas counsel was ineffective under
Strickland).
III. The District Court’s Denial of Tabler’s Habeas Petition Without
The Complete State Court Record Does Not Require Remand
      Tabler argues that the district court’s decision to deny his habeas
petition is rendered unreliable because the court did not have the entire trial
transcript when it made its rulings. Tabler requests that the entire case be
remanded so the district court can revisit its rulings with the full trial
transcript. But as this court has stated:
      There is nothing in the statute or in the Habeas Corpus Rules that
      requires a district court to review a state court record in its
      entirety. Indeed, federal courts do not sit as courts of appeal and
      error for state court convictions. Whether it is necessary to
      examine all of the state court proceedings is a decision left to the
      discretion of the district court judge. Here the district court was
      satisfied to make its decision upon a review of relevant portions of
      the state record. Dillard neither objected nor requested that
      additional transcripts be furnished, and no prejudice has been
      shown. We therefore hold that no error has been committed.

Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).
      Tabler’s attorneys supplemented his federal habeas petition with nearly
150 pages of exhibits and record excerpts, which the district court deemed
sufficient to address the issues presented. All that is required is that the
relevant portions of the record are available to the court. See Magourik v.
Phillips, 144 F.3d 348, 362 (5th Cir. 1998) (“Regardless of how deferential the
standard of review for state court fact findings . . . we fail to see how any review
at all can be conducted when the relevant portions of the state court record on
remand are not available for review.” (emphasis added)). Ruling that a remand
is required to allow review of materials deemed unnecessary by both the
district court and Tabler himself would be tantamount to requiring district
courts to review the entirety of the state court record before ruling on a habeas
                                        18
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                                       No. 12-70013
petition. This court has expressly rejected that requirement.
       Additionally, Tabler is unable to show prejudice from the lack of a
complete trial transcript.           Ten of his fourteen claims for relief were
unexhausted. Of the four exhausted claims, two of them—that executing the
mentally ill and Texas’s “10-2” rule are unconstitutional—are not fact-specific
challenges that would be aided by a detailed examination of the record.
Similarly, the issue of whether Tabler’s trial counsel’s alleged impermissible
jury argument was procedurally barred may be adjudicated by simply
reviewing a transcript demonstrating trial counsel’s failure to object. As to the
final claim for relief that trial counsel’s failure to object to the prosecution’s
closing argument constituted ineffective assistance of counsel, that is a legal
question fully capable of resolution on a partial transcript. 8 The district court
gave adequate consideration to Tabler’s properly presented claims.
IV. Tabler’s Trial Counsel Was Not Constitutionally Ineffective For
Failing To Object To The Prosecution’s Closing Argument
       Tabler’s final claim for relief is that his trial counsel was constitutionally
ineffective for failing to object to the prosecution’s argument that the jury
should not consider Tabler’s troubled childhood a mitigating circumstance
because it was unconnected to his crimes of murdering four individuals outside
of his family. Because the Court of Criminal Appeals rejected this claim on its
merits, Tabler must not only establish that counsel was ineffective under
Strickland, but also that the state court’s determination that counsel was not
constitutionally deficient was unreasonable. See Harrington v. Richter, 131 S.

       8 Tabler also suggests that the district court could not validly uphold the state court’s
waiver hearing without the benefit of the mental health testimony presented at his trial.
This contention is puzzling for the reason that, as already noted, the adequacy of the
competency hearing was not presented to the district court (indeed, that is the very basis for
Tabler’s unavailing argument that independent counsel should have been appointed at the
federal level). Accordingly, the district court had no need for this information. In any case,
for the reasons now exhaustively discussed, there is no question that Tabler’s competency
hearing and the factual determination of competence itself satisfied due process.
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                                   No. 12-70013
Ct. 770, 788 (2011) (“The standards created by Strickland and § 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly
so.’” (internal citations omitted)).
      Tabler maintains that the prosecutor’s argument violated Tennard v.
Dretke, 542 U.S. 274, 287 (2004), which invalidated the Fifth Circuit’s
requirement of a nexus between a defendant’s crime and mitigating evidence
presented during trial before a court may consider a defendant’s Penry claim.
A Penry claim, in turn, alleges a violation of the Eight Amendment where the
jury is precluded from giving effect to mitigating evidence presented by the
defendant. See id. at 278-79 (describing Penry v. Lynaugh, 492 U.S. 302 (1989)
and Penry v. Johnson, 532 U.S. 782 (2001)).
      As an initial matter, Tabler is not challenging his inability to bring a
Penry claim and thus Tennard does not apply to his habeas petition. The
Supreme Court has invalidated prosecutorial argument on the basis of the
Eight Amendment only once where a death sentence was rendered “by a
sentencer who ha[d] been led to believe that the responsibility for determining
the appropriateness of the defendant’s death rests elsewhere.” Caldwell v.
Mississippi, 472 U.S. 320, 328-29 (1985). But “Caldwell is relevant only to
certain types of comment—those that mislead the jury as to its role in the
sentencing process in a way that allows the jury to feel less responsible than it
should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 183
n.15 (1986); see also Romano v. Oklahoma, 512 U.S. 1, 8 (1994) (Caldwell
prohibits the prosecution from misleading the jury regarding the role it plays
in the sentencing decision).
      Even under the broadest interpretation of a Penry claim, Tabler does not
fall within its purview.     While the prosecution did state that mitigating
evidence was irrelevant to the jury’s sentencing determination, the jury was
specifically instructed to “consider all evidence admitted at the guilt or
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                                  No. 12-70013
innocence stage and the punishment stage, including evidence of the
defendant’s background or character or circumstances . . . that militate[ ]
against the imposition of the death penalty.” Compare Lynaugh, 492 U.S. 302,
326 (1989) (“In light of the prosecutor’s argument, and in the absence of
appropriate jury instructions, a reasonable juror could well have believed that
there was no vehicle for expressing the view that Penry did not deserve to be
sentenced to death based upon his mitigating evidence.” (emphasis added)).
      In any case, Tabler is not alleging a claim under the Eighth Amendment,
but one under the Sixth. As the Court of Criminal Appeals and the district
court found, there is nothing to establish that trial counsel’s failure to object
was not the exercise of legitimate trial strategy. With regard to the prejudice
prong of the Strickland test, as just noted, the jury was instructed to consider
evidence of Tabler’s background and is presumed to have followed that
instruction. Weeks v. Angelone, 528 U.S. 225, 234 (2000). Considering the
evidence presented at trial of Tabler’s culpability; the expansive argument
defense counsel made as to Tabler’s “abnormality,” which included testimony
from three medical professionals as to Tabler’s mental health, and in the case
of Dr. Jacobvitz, focused specifically on the developmental effects of Tabler’s
childhood; defense counsel’s own admonition to the jury that mitigating
evidence did not have to be connected to Tabler’s crimes; and the court’s
instruction that Tabler’s background should be considered in the jury’s
sentencing decision, Tabler cannot show that it is reasonably likely that, but
for the prosecution’s misstatements, he would have received a sentence of life
imprisonment instead of death. Accordingly, his ineffective-assistance-of-trial-
counsel claim fails to approach the required showing of a denial of a
constitutional right.
                                  CONCLUSION
      For the foregoing reasons, we DENY Tabler’s petition for a COA.
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                                       No. 12-70013
JAMES L. DENNIS, Circuit Judge, dissenting:
       This case presents difficult and interesting issues about how courts
should address the requests of a death-sentenced defendant to first waive his
rights, including his right to life itself, and then revoke the waiver. Reasonable
minds could differ on how best to address the troubling circumstances that
have been presented in this case. However, I cannot agree with the majority’s
resolution here because it is not in accordance with law.
       Under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler,
133 S. Ct. 1911 (2013), the state-court procedural default of certain challenges
to a conviction or sentence may be excused, and those claims may be litigated
in federal habeas proceedings (rather than precluded from consideration), if
the habeas petitioner shows that the default stemmed from the ineffective
assistance of the petitioner’s state counsel. Therefore, under Martinez and
Trevino, the effectiveness of state habeas counsel may be an important issue
during federal habeas proceedings.
       Here, however, when the federal district court appointed attorneys to
represent Richard Lee Tabler during his federal habeas proceedings, see 18
U.S.C. § 3599(a)(2) (right to counsel), the court appointed the same attorneys
who represented him in the state proceedings and whose representation there
was arguably ineffective. 1 Because Tabler’s federal attorneys also represented


       1  It is argued that their representation during the state proceedings was ineffective
because they disregarded indicia of Tabler’s troubled mental state and allowed him to waive
his right to state habeas proceedings without testing his competency to waive such rights.
See, e.g., Newman v. Norris, No. 05-2107, 2008 WL 222689, at *8 (W.D. Ark. Jan. 24, 2008)
(“The position that Petitioner was not competent to waive his rights to counsel and to seek
post-conviction relief should have been advanced by an attorney, either a counsel of record or
a ‘next friend.’ The court’s failure to appoint such a representative resulted in an evidentiary
hearing that failed to adequately develop all material facts and failed to afford Petitioner the
process he was due, resulting in a hearing that was neither full nor fair.”); Appel v. Horn, 250
F.3d 203, 215 (3d Cir. 2001) (“[The attorneys] had the obligation to act as counsel at Appel’s
competency hearing by subjecting the state’s evidence of competency to meaningful
adversarial testing.”).
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                                  No. 12-70013
him in the state proceedings, they were conflicted from arguing in federal court
that their assistance during the earlier state proceedings was inadequate.
There can be no serious doubt that an attorney is conflicted from arguing that
his own representation was ineffective. Therefore, Tabler’s statutory right to
counsel—unconflicted counsel—in the federal proceedings was denied. Indeed,
the Fourth Circuit has recognized the conflict of interest in materially identical
circumstances. See Gray v. Pearson, 526 F. App’x 331, 334 (4th Cir. 2013);
Juniper v. Davis, 737 F.3d 288, 289 (4th Cir. 2013).         We should grant a
certificate of appealability, vacate the district court’s judgment, and remand
for adjudication with unconflicted counsel. But the majority declines to do so
and instead brushes aside the conflict of interest that deprived Tabler of his
legal right to counsel, which is a right that the law does not allow us to ignore.
      Moreover, in order to disregard Tabler’s right to counsel, the majority
renders judgment on the effectiveness of Tabler’s state habeas attorneys.
Those attorneys were, the majority concludes, effective. This is a stunning
decision.   Under Martinez and Trevino, the effectiveness of Tabler’s state
habeas attorneys was an important issue in federal court, and Tabler’s federal
attorneys were conflicted from litigating and did not litigate that issue. There
has thus been no record development on the issue, and the majority has no
basis but pure speculation to purport to decide that Tabler’s state habeas
attorneys afforded effective representation. See Satterwhite v. Texas, 486 U.S.
249, 256 (1988) (“Since the scope of a violation such as a deprivation of the
right to conflict-free representation cannot be discerned from the record, any
inquiry into its effect on the outcome of the case would be purely speculative.”).
In essence, the majority concludes that we can violate Tabler’s right to
unconflicted counsel based on an assumption that unconflicted counsel would
probably do him no good anyway. The law does not allow this sort of judgment


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                                    No. 12-70013
“based on an assumption.” United States v. Herrera, 412 F.3d 577, 582 (5th
Cir. 2005).
      For the reasons hereinafter assigned, I respectfully dissent.
                                           I.
      On April 2, 2007, Tabler was sentenced to death in Texas state court. 2
Following his conviction, on April 24, the state court appointed attorneys David
Schulman and John Jasuta to represent Tabler during his state habeas
proceedings. See Tex. Crim. Proc. Code art. 11.071 § 1, 2 (right to appointment
of counsel “for an application for a writ of habeas corpus in which the applicant
seeks relief from a judgment imposing a penalty of death”).
      On August 11, 2008, Tabler, acting pro se although he was represented
by counsel, sent a letter to the Texas Court of Criminal Appeals asking to waive
his “rights to habeas corpus proceedings and volunteer for execution.” The
Court of Criminal Appeals forwarded the letter to the state trial court, which
held a hearing on September 30, 2008 to address Tabler’s competency to waive
his state habeas rights.
      Today, Tabler, who is no longer represented by Schulman and Jasuta
and is now represented by a new attorney, Marcia Widder, contends, through
the new attorney, that the competency-and-waiver hearing was flawed because
it was non-adversarial in nature. That is, Tabler’s attorneys then, Schulman
and Jasuta, did not litigate Tabler’s competency to waive his habeas rights nor
did they seek to have the court appoint a representative for Tabler’s interests
who would litigate the issue.         Tabler, through attorney Widder, further
contends that, because Schulman and Jasuta had significant indicia of Tabler’s
unstable mental state—including that he had previously decided to drop all


      2 On December 16, 2009, the Texas Court of Criminal Appeals affirmed the conviction
and death sentence. Tabler v. State, No. AP-75,677, 2009 WL 4931882 (Tex. Crim. App. Dec.
16, 2009) (unpublished).
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                                        No. 12-70013
legal appeals only to change his mind later on numerous occasions—it was
ineffective assistance of counsel for them to allow Tabler to waive his habeas
rights without taking action to test his competency. 3 See, e.g., Newman v.
Norris, No. 05-2107, 2008 WL 222689, at *8 (W.D. Ark. Jan. 24, 2008) (“The
position that Petitioner was not competent to waive his rights to counsel and
to seek post-conviction relief should have been advanced by an attorney, either
a counsel of record or a ‘next friend.’ The court’s failure to appoint such a
representative resulted in an evidentiary hearing that failed to adequately
develop all material facts and failed to afford Petitioner the process he was
due, resulting in a hearing that was neither full nor fair.”); Appel v. Horn, 250
F.3d 203, 215 (3d Cir. 2001) (“[The attorneys] had the obligation to act as
counsel at Appel’s competency hearing by subjecting the state’s evidence of
competency to meaningful adversarial testing.”). But Schulman and Jasuta
took no such action, and, at the conclusion of the non-adversarial hearing, the
state court declared Tabler’s state habeas rights waived. On November 5,
2008, the state court issued an order dispensing with the habeas action.
       Then Tabler changed his mind. On June 29, 2009, he wrote a letter to
the state trial court requesting that his state habeas case be reinstated.
Schulman and Jasuta, acting as Tabler’s counsel, filed a motion with the Court
of Criminal Appeals to continue the representation and to file a state habeas
petition on Tabler’s behalf. The court denied the motion because, it said, the


       3  After the September 30, 2008, competency-and-waiver hearing, Tabler sent a letter
to the United States Supreme Court seeking to have the Court dismiss the pending petition
for writ of certiorari regarding his direct appeal to the Texas Court of Criminal Appeals. On
June 15, 2010, attorneys Schulman and Jasuta, along with Tabler’s direct appeal attorney,
filed a statement in the Supreme Court stating, inter alia, that Tabler “suffers from serious
mental disabilities” and “is not competent and able to make a knowing, voluntary and
intelligent waiver.” The attorneys further stated that Tabler “has decided and determined
to drop all appeals on at least five previous occasions over the last three years,” and “[i]n each
instance . . . would subsequently change his mind.” At least two of those instances occurred
before the September 30, 2008, hearing.
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                                 No. 12-70013
record “demonstrates that [Tabler] made a knowing and voluntary choice to
waive habeas review.”
      On February 12, 2010, Tabler’s federal habeas proceedings in district
court began with an application for stay of execution and motion for
appointment of counsel. Both were filed by Schulman and Jasuta, on Tabler’s
behalf. On February 25, the district court appointed Schulman and Jasuta as
Tabler’s federal habeas counsel. See 18 U.S.C. § 3599(a)(2) (right to counsel in
federal habeas proceedings “seeking to vacate or set aside a death sentence”).
On November 13, 2011, Schulman and Jasuta filed Tabler’s federal habeas
petition. The district court dismissed the petition in full on February 9, 2012.
      On March 20, 2012, the Supreme Court decided Martinez v. Ryan, 132
S. Ct. 1309 (2012). In Martinez, the Court held generally that the state-court
procedural default of certain challenges to a conviction or sentence
(specifically, ineffective-assistance-of-trial-counsel claims under the Sixth
Amendment) may be excused, and those claims may be litigated in federal
habeas proceedings (rather than precluded from consideration), if the habeas
petitioner shows that the default stemmed from the ineffective assistance of
his state habeas counsel. Id. at 1320 (“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.”).
      As a result of Martinez, the effectiveness of state habeas counsel became
a significant issue in federal habeas proceedings. Thus, Schulman and Jasuta,
who served as Tabler’s state habeas counsel, realized that they should no
longer serve as his federal counsel, as they have an obvious conflict of interest
against arguing that their work in the state court was ineffective. On March
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                                 No. 12-70013
29, 2012, Schulman and Jasuta moved in the district court to withdraw as
Tabler’s attorneys and for the appointment of new counsel, explaining:
            Martinez may require the appointment of different
            counsel in federal habeas proceedings than those who
            represented the applicant in state habeas corpus
            proceedings. It provides a legal avenue for new habeas
            counsel to pursue procedurally defaulted claims in
            federal court by arguing that state habeas counsel
            were ineffective. Applicant is entitled to such counsel.
      On April 4, 2012, the district court denied the motion.           The court
explained that it was “persuaded that no attorneys could have proceeded, or
could proceed, any more effectively than the attorneys currently on this case.”
      On April 26, 2012, Widder appeared in the district court and moved to
substitute herself for Schulman and Jasuta as Tabler’s federal habeas counsel.
The following day, Schulman and Jasuta moved again to withdraw as counsel
and for the appointment of new counsel, specifically, Widder. Again, they
explained that a “legal conflict” “prevent[ed] them from proceeding.” They
were “not,” they explained, “in a position to litigate any claims pursuant to the
effect of the Supreme Court’s recent decision in Martinez.” On May 1, 2012,
the district court granted the motions, allowing Widder to substitute for
Schulman and Jasuta as Tabler’s federal counsel.           The next day, Tabler,
through attorney Widder, filed his notice of appeal.
      While Tabler’s appeal was pending, on May 28, 2013, the Supreme Court
decided Trevino v. Thaler, 133 S. Ct. 1911 (2013). Overturning precedent from
this court to the contrary, the Court held in Trevino that the rule of Martinez
applies in Texas. Id. at 1921; see also Ibarra v. Thaler, 687 F.3d 222, 227 (5th
Cir. 2012), overruled by Trevino, 133 S. Ct. at 1916, 1921.
      This court called for supplemental briefing on the effect of Trevino.
Tabler, through attorney Widder, now contends that the conflict of interest
Schulman and Jasuta faced as a result of Martinez and Trevino deprived
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                                   No. 12-70013
Tabler of his statutory right to counsel. Tabler, through Widder, asks this
court to grant the requested certificate of appealability, vacate the district
court’s judgment, and remand to the district court for adjudication, with
unconflicted counsel, of whether Schulman and Jasuta’s representation during
the competency-and-waiver hearing, which led to Tabler asserting no state
habeas claims, was ineffective and resulted in the default of any substantial
ineffective-assistance-of-trial-counsel claims.
                                         II.
      As a habeas petitioner challenging his death sentence, Tabler has a
statutory right to counsel in the federal habeas proceedings. See 18 U.S.C.
§ 3599(a)(2) (right to counsel in federal habeas proceedings “seeking to vacate
or set aside a death sentence”). 4 The statutory right to counsel encompasses a
right to counsel who are not precluded from effective representation because of
a conflict of interest. See Martel v. Clair, 132 S.Ct. 1276, 1286 (2012) (under
§ 3599, courts “have to ensure that the defendant’s statutory right to counsel
was satisfied throughout the litigation,” and, “if the first lawyer developed a
conflict,” “the court would have to appoint new counsel”); Johnson v. Gibson,
169 F.3d 1239, 1254 (10th Cir. 1999) (a conflict of interest is “good cause” to
substitute counsel under prior version of § 3599 previously codified at 21 U.S.C.
§ 848(q)); Jeffers v. Lewis, 68 F.3d 295, 298 (9th Cir.) (the right to counsel under
§ 848(q) “encompasses a requirement of counsel who are not disabled by
conflict of interest”), vacated en banc on other grounds, 68 F.3d 299 (9th Cir.
1995); accord Hanna v. Bagley, No. 1:03-CV-801, 2014 WL 1342985, at *5 (S.D.
Ohio Apr. 3, 2014) (substituting counsel under § 3599 to avoid risk of conflict).
      A significant conflict of interest arises if an attorney must argue that his
own representation at an earlier stage of the litigation was ineffective. See

      4 Attorneys Schulman and Jasuta were appointed by the district court as Tabler’s
habeas attorneys under § 3599(a)(2).
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                                     No. 12-70013
Maples v. Thomas, 132 S. Ct. 912, 925 n.8 (2012) (a “significant conflict of
interest arose” when the circumstances were such that the law firm’s
“strongest argument” on behalf of the firm’s client was that the firm had earlier
abandoned the client); United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir.
1996) (“Del Muro argues on appeal that the district court created an inherent
conflict of interest by forcing trial counsel to prove his own ineffectiveness . . . .
We agree.”); Holmes v. Norris, 32 F.3d 1240, 1240-41 (8th Cir.) (“One could
hardly expect that lawyer to argue his own ineffectiveness with any degree of
conviction or persuasiveness. To make such an argument places a lawyer in
the    sharpest   sort    of   conflict   of    interest.”),   summarily   vacated   en
banc, 32 F.3d 1240 (8th Cir. 1994); Abbamonte v. United States, 160 F.3d 922,
925 (2d Cir. 1998) (observing that attorneys are “not inclined to seek out and
assert [their] own prior ineffectiveness”); Sasser v. Hobbs, 735 F.3d 833, 852
(8th Cir. 2013) (similar).
        Accordingly, one of our sister circuits and several district courts have
recognized the logical conclusion that, in federal habeas proceedings, attorneys
are conflicted from arguing their own ineffectiveness in the earlier state habeas
proceedings, which Martinez and Trevino now call for. Gray v. Pearson, 526 F.
App’x 331, 334 (4th Cir. 2013) (“We find that a clear conflict of interest exists
in requiring Gray’s counsel to identify and investigate potential errors that
they themselves may have made in failing to uncover ineffectiveness of trial
counsel while they represented Gray in his state post-conviction proceedings.”);
Juniper v. Davis, 737 F.3d 288, 290 (4th Cir. 2013) (“[A]s in Gray, we find it
ethically untenable to require [federal habeas] counsel to assert claims of his
or her own ineffectiveness in the state habeas proceedings in order to
adequately present defaulted ineffective-assistance-of-trial-counsel claims
under Martinez in the federal habeas proceedings.”); Huebler v. Vare, No. 3:05-
CV-48, 2014 WL 1494271, at *2-3 (D. Nev. April 15, 2014) (“Following
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                                   No. 12-70013
Martinez, current counsel thus is placed in a position of having to review the
performance of a state post-conviction litigation team on which she worked—
including as an attorney—to determine whether the team inadequately failed
to raise additional claims . . . . Current counsel is under an obligation under
Martinez to conduct such review, and she has a conflict of interest when doing
so. That conflict of interest is real, actual and current.”) (quoting Bergna v.
Benedetti, No. 3:10-CV-389, 2013 WL 3491276, at *2 (D. Nev. July 9, 2013));
accord Farnum v. Legrand, No. 2:13-CV-1304, 2013 WL 5817033, at *3 (D. Nev.
Oct. 9, 2013); Ferguson v. Allen, No. 3:09-CV-138, 2014 WL 3689784, at *13
n.15 (N.D. Ala. July 21, 2014).
      In   Gray,    the   Fourth    Circuit   addressed      materially   identical
circumstances as presented here.       There, following the petitioner’s state
habeas proceedings, the petitioner filed federal habeas proceedings, and “[t]he
district court appointed the same attorneys who had represented Gray in the
state habeas proceedings to represent him in his federal habeas proceedings.”
526 F. App’x at 332. As here, the petitioner in Gray contended on appeal that,
as a result of Martinez (which, as here, was decided during the pendency of the
case), he was denied his right to “the appointment of independent [i.e.,
unconflicted] counsel in his federal habeas proceeding.” Id. In other words,
            Gray argues, in essence, that because he has been
            represented by the same counsel in both state and
            federal post-conviction proceedings, he is unable to
            identify any potential Martinez claims and to rely
            thereon to assert “cause” to excuse any such otherwise
            procedurally defaulted claims because in order to do so
            his current counsel would be required to argue
            their own ineffectiveness in their representation of
            him in state post-conviction proceedings. Gray
            maintains that such a task would create a conflict of
            interest that contravenes his counsels’ professional
            ethical duties and thereby corrode their duty of
            vigorous representation.
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                                  No. 12-70013
Id. at 334. The Fourth Circuit “agree[d]” that a “clear conflict of interest”
existed. Id. at 332, 334.
      Further, the Fourth Circuit rejected the state’s argument that the
conflict of interest should be disregarded because Gray had, on appeal, failed
to identify any “sufficiently substantial” ineffective-assistance-of-trial-counsel
claims (referred to by the court as “Martinez claims”):
            The fact, even if true, that Gray’s counsel did not
            identify any “sufficient[ly] substantial” claim
            under Martinez does not undercut their request that
            independent counsel be appointed to explore
            Gray’s Martinez claims. We see no material difference
            between an ethical prohibition on a lawyer’s attempt
            to investigate or advance her own potential errors, on
            the one hand, and a like prohibition on her attempts
            to identify and produce a list of her own errors giving
            rise to a “substantial claim” on the other hand.
Id. at 334-35 (quotation marks, italics, and alteration in original). Accordingly,
the Fourth Circuit vacated the district court’s judgment and remanded to the
district court for further proceedings with unconflicted counsel. Id. at 335.
(The Fourth Circuit later adopted Gray’s reasoning in a published opinion. See
Juniper, 737 F.3d at 289.)
      Tabler’s case is identical. Here, as a result of Martinez and Trevino,
Schulman and Jasuta, Tabler’s attorneys, had a conflict of interest that
precluded them from effectively representing Tabler in his federal habeas
proceedings. In federal court, the only way for Tabler to claim ineffective
representation at trial was to first show that his state habeas counsel, who
allowed him to waive state habeas proceedings without an adversarial process
to test his competency to do so, acted ineffectively in doing so. See Martinez,
132 S. Ct. at 1320. Schulman and Jasuta were Tabler’s attorneys in both his
initial state habeas proceedings and his later federal habeas proceedings. In


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                                  No. 12-70013
the federal proceedings, they were conflicted from arguing that they were
ineffective in the earlier state proceedings.
      In short, Tabler had a statutory right to counsel in his federal habeas
proceedings, and that right was violated when the district court appointed
counsel that were conflicted from litigating their own ineffectiveness in the
state habeas proceedings (which was necessary to assert ineffective-assistance-
of-trial-counsel claims on Tabler’s behalf). This court should grant a certificate
of appealability, vacate the district court’s judgment, and remand to the
district court so that Tabler, with unconflicted counsel (such as his current
attorney, Widder), may have an opportunity to litigate state habeas counsels’
alleged ineffectiveness. Cf. Mixon v. United States, 620 F.2d 486, 487 (5th Cir.
1980) (vacating and remanding district court’s judgment because the
magistrate judge had conflict of interest and, thus, “we treat the proceedings
and the disposition below as a nullity”).
                                        III.
      For the reasons I have explained, the effectiveness of Tabler’s state
habeas attorneys (Schulman and Jasuta) is an important issue in this case,
and Tabler’s federal habeas attorneys (again, Schulman and Jasuta) were
conflicted and unable to litigate that issue because it would require them to
press their own ineffectiveness as attorneys.        Nevertheless, the majority
believes that we can ignore the conflict of interest that precluded Tabler’s
attorneys from litigating their effectiveness because the attorneys were, the
majority decides, effective. Ante, at 14 (“Tabler fails to demonstrate that the
performance of his state habeas counsel was constitutionally deficient.”); id. at
17 (“Tabler’s habeas counsel were not ineffective . . . .”). The majority’s decision
to render judgment on the effectiveness of Tabler’s attorneys is stunning. That
issue has never been litigated. Evidence has never been gathered, a record has
never been developed, and legal arguments have never been presented to the
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                                  No. 12-70013
state courts, the federal district court, or this court. The majority’s conclusion
that Tabler’s counsel were effective is utter speculation.
      The precise issue is whether it was ineffective representation for
Schulman and Jasuta during the state habeas proceedings to allow Tabler to
waive his habeas rights without taking action to test his competency to do so.
There are some indications in the record that Schulman and Jasuta ought to
have been skeptical of Tabler’s competency to make the waiver, namely, that
on several prior occasions, Tabler had sought to waive his rights and volunteer
for execution and then changed his mind. Indeed, after the state court accepted
Tabler’s waiver, Schulman and Jasuta would later come to believe that Tabler
“suffers from serious mental disabilities” and “is not competent and able to
make a knowing, voluntary, and intelligent waiver”—but, at that point, it was
too late. See supra, note 3. Under Martinez and Trevino, Tabler’s federal
habeas attorneys should have sought to prove that the representation of the
state habeas attorneys was ineffective, but that never happened here because
the attorneys were conflicted from doing so. There has been no litigation, and
we have no record, as to whether Tabler’s state habeas attorneys provided
effective representation.
      It is obvious that this court cannot decide a claim of ineffective assistance
of counsel on an assumption rather than actual evidence.           Although that
principle should require no citation, it nevertheless has ample support. E.g.,
United States v. Hayes, 532 F.3d 349, 355 (5th Cir. 2008) (“Because the district
court did not hold an evidentiary hearing, we would be engaging in speculation,
preventing adequate review of the district court’s judgment as to whether
defense counsel performed unreasonably under Strickland.”); United States v.
Culverhouse, 507 F.3d 888, 898 (5th Cir. 2007) (“Without any evidence as to
counsel’s strategy, we refuse to make hindsight guesses on the matter.”);
United States v. Herrera, 412 F.3d 577, 582 (5th Cir. 2005) (“Rather than decide
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                                  No. 12-70013
the question based on an assumption, the better approach is to have the district
court conduct an evidentiary hearing.”); United States v. Bramlett, 191 F. App’x
271, 272 (5th Cir. 2006) (“Resolution of Bramlett’s ineffective assistance of
counsel claim turns on a factual issue, namely, whether his trial counsel
informed him of the statutory maximum sentence. The district court has made
no factual findings with regard to this issue. This court should not make that
factual assessment in the first instance.”). Despite this precedent, the majority
purports to do what the law does not allow: it renders judgment on the
effectiveness of Tabler’s state habeas attorneys, an issue for which we have no
record, based on utter speculation.
      When, as here, a litigant has the right to an attorney, the problem with
that attorney having a conflict of interest is that it undermines or defeats the
adversary process upon which our judicial system is premised. Courts decide
cases based on records amassed and presented by adverse parties. If one side’s
performance was hampered by a conflict of interest, the court is left with a
record that is inadequate for rendering decision in accordance with the usual
adversarial process. See Satterwhite v. Texas, 486 U.S. 249, 256 (1988) (“Since
the scope of a violation such as a deprivation of the right to conflict-free
representation cannot be discerned from the record, any inquiry into its effect
on the outcome of the case would be purely speculative.”); United States v.
Segarra-Rivera, 473 F.3d 381, 384 (1st Cir. 2007) (explaining that the issue of
an attorney conflict was “logically antecedent” to the substantive question the
district court faced because, if the attorney was conflicted, “it would cast doubt
upon the validity of the record on which the district court ruled”).          The
majority’s approach here turns the adversary system on its head. Tabler’s
federal habeas attorneys were conflicted from litigating the ineffectiveness of
Tabler’s state habeas attorneys, and they did not litigate that issue. This court
cannot ignore the conflict for the reason that, from our vantage point, the
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                                       No. 12-70013
representation of Tabler’s state habeas attorneys appears to have been fine.
We have no record upon which to decide that, and we cannot, in accordance
with due process, “decide the question based on an assumption.” Herrera, 412
F.3d at 582. The majority’s approach, which decides unlitigated claims on
assumptions about their merits in order to affirm the lack of adversarial
litigation, “puts the cart before the horse.” Segarra-Rivera, 473 F.3d at 384.
The law requires that Tabler have the assistance of unconflicted counsel to
press his legal claims. See 18 U.S.C. § 3599(a)(2). Only after those claims are
asserted by Tabler’s counsel, as is his right, may this court decide the merits of
those claims. 5
                                              IV.
       This court may bristle at the prospect of delaying execution of the state
court’s judgment of death while Tabler proceeds through a second round of
federal habeas proceedings. But it is this court’s duty to apply the law, not
abstract principles of fairness or policy. Congress has provided Tabler with
the right to an attorney in his federal habeas proceedings, and that right was
violated when Tabler was afforded counsel who were conflicted from effective



       5 The majority seems to suggest that we can render judgment on Tabler’s unlitigated
claim of ineffective assistance because Tabler was appointed a new, unconflicted attorney on
appeal (that is, to request a certificate of appealability from this court), and that attorney
could have theoretically researched outside the record to prepare attorney-ineffectiveness
claims for assertion in this appellate court that were not previously asserted in the district
court. See ante, at 16 (“Tabler was appointed independent counsel for his federal appeal who
has had the opportunity to investigate and present these claims.”). This, again, is clear error.
“The general rule in this circuit is that a claim of ineffective assistance of counsel cannot be
resolved on direct appeal when the claim has not been raised before the district court since
no opportunity existed to develop the record on the merits of the allegations.” United States
v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). We cannot fault Tabler’s appellate attorney
for failing to assert attorney-ineffectiveness claims on appeal that were not previously
asserted in the district court when our precedent does not allow such, as this court has said
time and again. See, e.g., United States v. London, 568 F.3d 553, 562 (5th Cir. 2009); United
States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998); United States v. Thomas, 12 F.3d 1350,
1368 (5th Cir. 1994); United States v. Owen, 418 F. App’x 285, 287 (5th Cir. 2011).
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                                  No. 12-70013
representation. Contrary to the majority’s conclusion, we cannot ignore that
legal error. I respectfully dissent.




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