     Case: 14-70017   Document: 00513264075     Page: 1   Date Filed: 11/09/2015




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

                                 No. 14-70017                             FILED
                                                                  November 9, 2015
                                                                     Lyle W. Cayce
KERRY DIMART ALLEN,                                                       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 Southern District of Texas


Before KING, DAVIS, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Kerry Allen was convicted of capital murder and sentenced to death.
After his direct appeal and state habeas petition proved fruitless, Allen filed a
petition for habeas corpus under 28 U.S.C. § 2254 in the district court. During
the pendency of his petition, Allen filed two motions asking the district court
to give him funds to hire experts to assist him in developing his claims. The
district court denied those requests and also denied relief on each of the claims
that Allen raised in his petition. Allen has now requested that this court issue
a certificate of appealability (COA), and he also appeals the district court’s
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                                 No. 14-70017
denial of his funding requests.     We DENY a COA on Allen’s claims and
AFFIRM the district court’s denial of Allen’s funding requests.
                                       I.
      In 2000, the state of Texas charged Allen with capital murder for the
death of Kienna Lashay Baker, the two-year-old daughter of Kimberly Renee
Jones, the woman with whom Allen had been living. His case proceeded to a
jury trial. The prosecution’s evidence showed that Allen had lived with Jones
and her four children, including the victim, for six months prior to the murder.
Allen, then 40 years old, had told Jones, then 23 years old, that he was an
evangelist preacher, and he watched Jones’s children while she worked. Allen
harshly disciplined the children, and the victim feared him. Indeed, all of the
children soon became malnourished, sullen, and afraid.
      On May 10, 2000, Allen called Jones while she was at work and told her
to come home because of an emergency. Allen met Jones in the parking lot of
their apartment, saying, “I didn’t do anything to her.” Allen claimed that the
victim had fallen from the toilet after he spanked her for wetting herself. After
Jones entered the apartment, she saw the victim lying down in a bedroom
wearing only a pair of boy’s underwear. Her heart was not beating, and she
had foamed at the mouth and nose. Near the victim lay an open jar of Vaseline,
suggesting that Allen had sexually assaulted the victim.
      Allen repeatedly told Jones not to call 9-1-1, insisting that he needed to
“get away,” but Jones eventually called for help. When emergency personnel
arrived, Allen hid himself and the other children behind a locked bedroom door.
Allen fled through a window before police breached the door to the bedroom in
which he had been hiding. Officers found two Bibles on the couch, both open
to a passage about Jesus raising a girl from the dead.
      The victim was later declared dead, and an autopsy concluded that she
had died from blunt force trauma to her chest and abdomen. The autopsy also
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suggested that she had been anally raped after being beaten, and that the
sexual assault contributed to her death. The medical examiner also noted fifty-
six scars on the girl’s body, in various degrees of healing, that indicated she
had been physically abused many times in the past.          Two days after the
murder, Allen turned himself in to the police. Allen asserted that the victim’s
death was accidental, but he also said, “I should never have done it. My temper
gets control.”
      Allen’s trial attorneys did not call any witnesses in the guilt/innocence
phase of the trial. In closing arguments, the defense disputed that Allen had
sexually assaulted the victim and argued that the prosecution had not met its
burden to prove that Allen was the killer. The jury disagreed and convicted
Allen of capital murder.
      The trial then proceeded to the punishment phase, in which the jury
would decide whether Allen would receive the death penalty by answering two
special-issue questions: (1) whether Allen posed a future danger of violence;
and (2) whether sufficient evidence mitigated against a death sentence. See
Tex. Code Crim. P. Art. 37.071(2)(b)(1), 2(d)(1).       From the prosecution’s
witnesses, the jury learned that years before the murder, Allen had pleaded
guilty in Texas to two counts of felony sexual assault, and the probated
sentence that he had received for that crime had been revoked because Allen
failed to report to officers, did not participate in a court-ordered sex-offender
program, and failed to pay fines. A few months after his release from that
incarceration, he violated the terms of his parole and then fled to Louisiana.
Allen was arrested nine years later, and he then served the remainder of his
Texas sentence. After his release, Allen was negligent in updating his sex-
offender status, and he also violated the terms of his release by failing to avoid
children.


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      Allen’s first wife, whom he had secretly dated while she was still a minor
and against whom he had committed a misdemeanor assault, testified that
Allen was an abusive liar who did not work.        She also testified that she
suspected Allen had sexually abused the children of a family with whom they
had lived. While married to his first wife, Allen had an intimate relationship
with a pre-teen girl at the church where he was employed as a youth minister.
Allen’s second wife testified that he was controlling, jealous, and angry. Allen
had been convicted of assaulting her, and she testified that Allen had violently
abused her. Another woman testified that Allen had sexually abused her two
children.   Finally, police officers testified about the neglected and abused
condition of Jones’s children.
      The defense presented testimony showing that Allen claimed to have
been the victim of physical and sexual abuse as a child, and as a result, Allen
had poor coping mechanisms, low self-esteem, and insufficient life skills to
handle stressful situations. The defense also showed that Allen had attempted
suicide several times.    Individuals who knew Allen testified that he was
likeable, bright, trustworthy, and interested in religion.       A psychologist
testified that Allen would present a low risk of future violence. None of Allen’s
family were called to testify.
      The jury answered the special-issue questions in a manner requiring
imposition of a death sentence.     Allen’s appellate counsel raised fourteen
claims on direct appeal, and the Texas Court of Criminal Appeals affirmed.
Allen v. State, 108 S.W.3d 281 (Tex. Crim. App. 2003). The United States
Supreme Court denied certiorari. Allen v. Texas, 540 U.S. 1185 (2004).
      During the pendency of direct review, Allen filed a state habeas
application through appointed counsel, raising 37 grounds for relief. The Court
of Criminal Appeals adopted the recommendation of the state habeas court and


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denied relief. Ex Parte Allen, No. WR-73586-01, 2010 WL 1709947 (Tex. Crim.
App. Apr. 28, 2010).
      Allen then sought federal habeas review, and the district court appointed
counsel for Allen. Allen’s amended § 2254 petition raised the following grounds
for habeas relief:
            1: The Texas death penalty scheme violates the Sixth, Eight,
      [sic] and Fourteenth Amendments to the United States
      Constitution by not requiring the state to prove aggravating
      factors relevant to the mitigation special issue beyond a reasonable
      doubt before the jury may sentence the defendant to death. . . .
             2: The State of Texas, by requiring individual counties to
      fund the prosecution of capital cases, injects arbitrariness into the
      selection of which cases will be tried as capital cases; this violates
      the Eight [sic] and Fourteenth Amendments to the United States
      Constitution. . . .
            3: The Texas 12-10 Rule, and the law prohibiting jurors from
      being informed that their individual vote that life is the proper
      sentence will lead to a life sentence, violates the Eighth and
      Fourteenth Amendment [sic] as construed by Mills v. Maryland
      and McKoy v. North Carolina. . . .
             4: The State trial court violated petitioner’s Sixth and
      Fourteenth Amendment rights to an impartial jury and due
      process by denying his challenge for cause against [a prospective
      juror]. . . .
             5: Petitioner’s trial counsel were ineffective for failing to
      subpoena witnesses who were key to the mitigation special
      issue. . . .
The district court denied Allen’s two requests for expert witness funding, which
Allen sought to develop his ineffective-assistance-of-trial-counsel claim.
      After receiving supplemental briefing regarding the impact of Trevino v.
Thaler, 133 S. Ct. 1911 (2013), the district court denied claims 1–3 on the
merits, concluding that Allen had failed to meet the standard set forth in
§ 2254(d). The district court concluded that Allen had procedurally defaulted
his jury-selection claim by failing to assert an objection at trial, and also that,
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for the same reason, Allen had failed to sufficiently develop the record on that
claim. Finally, because Allen did not raise his ineffective-assistance claim in
the state courts, and because the district court concluded that Allen could not
avoid § 2254(b)(1)’s procedural bar to review of unexhausted claims, the
district court concluded that it need not reach the merits of the ineffective-
assistance claim, and it denied Allen’s re-urged expert-funding request. In the
alternative, the district court concluded that Allen’s ineffective-assistance
claim lacked merit. The district court, therefore, denied relief, and it also
denied a COA sua sponte. Allen then filed a motion for a COA in this court,
asking for a COA as to the district court’s resolution of his five grounds for
habeas relief and its denials of Allen’s motions under 18 U.S.C. § 3599(f) for
expert-witness funding.
                                       II.
      Allen’s request for a COA is governed by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 100 Stat.
1214. AEDPA requires a habeas petitioner to first obtain a COA before he may
obtain review of a district court’s denial of habeas relief.          28 U.S.C.
§ 2253(c)(1)(A). This court may issue a COA only if the applicant has “made a
substantial showing of the denial of a constitutional right.”       § 2253(c)(2).
Where the petitioner faces the death penalty, “any doubts as to whether a COA
should issue must be resolved” in the petitioner’s favor. Medellin v. Dretke,
371 F.3d 270, 275 (5th Cir. 2004) (quoting Hernandez v. Johnson, 213 F.3d 243,
248 (5th Cir. 2000)). To make a substantial showing, a petitioner must show
that “reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal
quotation marks omitted). When a habeas petition has been denied only on
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                                 No. 14-70017
procedural grounds without reaching the merits, a COA should not issue
unless the petitioner “shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
      If claims have been “adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d) applies.       Section 2254(d) imposes two
significant restrictions on federal review of a habeas claim. First, the federal
court’s review is limited to “the evidence presented in the state court
proceeding.” § 2254(d)(2); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1399
(2011) (limiting review under § 2254(d)(1) to the record before the state court
that adjudicated the claim on the merits). Second, the federal court may not
grant habeas relief unless the state court’s adjudication was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” § 2254(d)(1), or “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2). Pure questions of law and mixed questions of fact
and law are analyzed under § 2254(d)(1). Simmons v. Epps, 654 F.3d 526, 534
(5th Cir. 2011). Under the “contrary to” clause, a federal court may grant relief
if the state court reached an opposite result from the Supreme Court on a set
of materially indistinguishable facts or arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law. Id. (citing Williams v.
Taylor, 529 U.S. 362, 405 (2000)).      Under the “unreasonable application
clause,” habeas relief may be granted if the state court correctly identified a
legal principle from the Supreme Court’s jurisprudence but misapplied that
principle to the facts or “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
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apply.” Id. (citing Williams, 529 U.S. at 407). Pure questions of fact are
reviewed under § 2254(d)(2). Id.
      If a claim has not been exhausted in state court, AEDPA generally bars
relief unless the applicant can make one of two showings not relevant here.
§ 2254(b). The Supreme Court, however, has identified equitable exceptions to
this procedural bar. In particular, an applicant may overcome the procedural
bar and assert unexhausted claims if he can “demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). In
Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012), the Supreme Court concluded
that ineffective assistance by a state habeas attorney may amount to cause
where state procedural law requires that an ineffective assistance of trial
counsel claim be raised in an initial state habeas application. The Supreme
Court extended Martinez in Trevino v. Thaler, 133 S. Ct. 1911 (2013), to cases
in Texas, where state law—on its face—permits an ineffective assistance of
trial counsel claim to be raised on direct appeal, but in effect makes it virtually
impossible to do so. To meet Martinez’s “cause” exception, the applicant must
show that the representation provided by his state habeas counsel fell below
the standards established in Strickland 1 and that his underlying ineffective
assistance of trial counsel claim “is a substantial one, which is to say . . . that
the claim has some merit.” Martinez, 132 S. Ct. at 1318.
      Finally, Allen challenges the district court’s refusal to grant funding to
hire an expert witness to assist him in developing his unexhausted claim for
ineffective assistance of trial counsel. “[A] COA is not necessary to appeal the
denial of funds for expert assistance.” Smith v. Dretke, 422 F.3d 269, 288 (5th


      1   Strickland v. Washington, 466 U.S. 668 (1984).
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Cir. 2005). Under 18 U.S.C. § 3599(f), “[u]pon a finding that investigative,
expert, or other services are reasonably necessary for the representation of the
defendant, whether in connection with issues relating to guilt or the sentence,
the court may authorize the defendant’s attorneys to obtain such services on
behalf of the defendant and, if so authorized, shall order the payment of fees
and expenses therefor . . . .” We have “interpreted ‘reasonably necessary’ to
mean that the petitioner must show that he has ‘a substantial need’ for the
requested assistance,” and we “review the denial of funding for investigative
or expert assistance for an abuse of discretion.” Brown v. Stephens, 762 F.3d
454, 459 (5th Cir. 2014) (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.
2004)), cert. denied, 135 S. Ct. 1733 (2015).
                                       III.
                                       A.
      Allen first seeks a COA on his Apprendi claim regarding the mitigation
special issue during the punishment phase of his trial. In Apprendi v. New
Jersey, the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. 466, 490 (2000). The Court applied this rule to capital-sentencing
schemes in Ring v. Arizona, holding that “[c]apital defendants, no less than
noncapital defendants, . . . are entitled to a jury determination of any fact on
which the legislature conditions an increase in their maximum punishment.”
536 U.S. 584, 589 (2002). When a state requires a finding of an aggravating
circumstance before the death penalty may be imposed, “aggravating factors
operate as the functional equivalent of an element of a greater offense,” and
“the Sixth Amendment requires that they be found by a jury.” Id. at 609
(internal quotation marks and citation omitted).


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      In Texas, a defendant convicted of murdering an individual under ten
years of age is guilty of capital murder, and if the state seeks the death penalty,
the defendant “shall be punished by imprisonment . . . for life without parole
or by death.” Tex. Penal Code §§ 12.31 and 19.03. However, before a defendant
convicted of capital murder may be sentenced to death, the jury must answer
statutory special issues in a separate proceeding. Tex. Code Crim. P. art.
37.071. In Allen’s case, the jury was required to answer two special issues.
First, the jury was asked: “Do you find beyond a reasonable doubt that there
is a probability that the defendant, Kerry Dimart Allen, would commit criminal
acts of violence that would constitute a continuing threat to society?” See id.
art. 37.071(b)(1), (c). The jury unanimously answered in the affirmative and,
therefore, proceeded to the next question. This second question was: “Do you
find from the evidence, taking into consideration all of the evidence, including
the circumstances of the offense, the defendant’s character and background,
and the personal moral culpability of the defendant, Kerry Dimart Allen, that
there is a sufficient mitigating circumstance or circumstances to warrant that
a sentence of life imprisonment rather than a death sentenced be imposed?”
See id. art. 37.071(e)(1). The jury unanimously answered in the negative,
requiring a death sentence.
      Allen concedes that we have rejected previous Apprendi challenges to
Texas’s mitigation special issue. However, as Allen observes, “aggravating
circumstances can be considered in connection with the mitigation special
issue” because they “may be relevant to determine whether a particular
mitigating circumstance or set of circumstances is sufficient to warrant a life
sentence.” Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1999). Allen
therefore argues that the Texas death penalty scheme runs afoul of Apprendi
because the jury is not instructed that any aggravating factors considered by


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                                 No. 14-70017
the jury when answering the mitigation special issue must be proven by the
state beyond a reasonable doubt.
      On direct appeal, the Texas Court of Criminal Appeals denied this claim
on the merits, concluding that Apprendi is inapplicable to Texas’s special-issue
capital-sentencing scheme because Apprendi “applies to facts that increase the
penalty beyond the ‘prescribed statutory maximum,’” and under the Texas
Penal Code, “the ‘prescribed statutory maximum’ for capital murder is fixed at
death.” Allen, 108 S.W.3d at 285 (quoting Apprendi, 530 U.S. at 490); see also
Tex. Penal Code §§ 12.31 and 19.03. The Court of Criminal Appeals reasoned
that “[n]othing the jury or judge decided during the punishment phase could
have enhanced appellant’s sentence beyond the prescribed range.” Allen, 108
S.W.3d at 285. The Court of Criminal Appeals relied on this ruling in rejecting
this claim in state habeas proceedings. To obtain a COA on this claim, Allen
must show that reasonable jurists would find it debatable whether the Court
of Criminal Appeals’s adjudication of the claim was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court.” 28 U.S.C. § 2254(d)(1).
      Allen points to Ring as clearly establishing his claim. In Ring, the Court
found that Arizona’s death-penalty sentencing scheme, which allowed “the
trial judge, sitting alone, [to determine] the presence or absence of the
aggravating factors required by Arizona law for imposition of the death
penalty,” ran afoul of Apprendi. 536 U.S. at 588–89, 609.
      The district court found that Allen’s reliance on Ring was foreclosed by
our precedent, and we agree. We have “specifically held that the Texas death
penalty scheme did not violate either Apprendi or Ring by failing to require
the state to prove beyond a reasonable doubt the absence of mitigating
circumstances.” Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007).
This is because, through the guilt-innocence phase, “the state was required to
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prove beyond a reasonable doubt every finding prerequisite to exposing [the
defendant] to the maximum penalty of death. . . . [A] finding of mitigating
circumstances reduces a sentence from death, rather than increasing it to
death.” Granados v. Quarterman, 455 F.3d 529, 536–37 (5th Cir. 2006); see
also Turner v. Quarterman, 481 F.3d 292, 299–300 (5th Cir. 2007) (“Texas
capital juries make the eligibility decision at the guilt-innocence phase. . . .
Ring is inapposite to any discussion of the constitutional requirements of the
selection phase.”); Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005) (“No
Supreme Court or Circuit precedent constitutionally requires that Texas’s
mitigation special issue be assigned a burden of proof.”).
      Allen attempts to avoid this line of our cases by directing his challenge
toward the jury’s ability to consider aggravating circumstances in determining
the mitigation special issue. In Allen’s view, the jury is properly anchored to
a   beyond-a-reasonable-doubt      standard     when       finding    aggravating
circumstances    during    the   guilt-innocence   phase,      but   aggravating-
circumstance determinations improperly become a free-for-all when the jury
considers them in its resolution of the second special issue.        However, in
resolving the mitigation special issue, the jury did not find aggravating
circumstances that exposed Allen to the death penalty. The jury reached the
mitigation special issue only because it had already found the existence of such
aggravating circumstances, and had already determined that Allen was
eligible to receive a death sentence. Under Scheanette and Granados, then, the
district court correctly held that the jury’s consideration of aggravating
circumstances in connection with the mitigation special issue is not governed
by Apprendi and Ring.
      In sum, our precedent forecloses Allen’s Apprendi claim. Therefore, we
deny Allen’s request for a COA on this claim.


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                                No. 14-70017
                                      B.
      Allen next seeks a COA on his claim that a lack of uniformity in
prosecutorial discretion across Texas counties due to disparate state funding
violates the Eighth and Fourteenth Amendments. Under Texas law, each
county pays the attorney’s fees and investigative expenses for defendants
facing capital-murder charges. See Tex. Code Crim. P. art. 26.052. Capital-
murder cases are expensive to litigate, and not only for the defense; district
attorney’s offices also expend considerable resources in the prosecution of
capital-murder cases. Allen cites studies estimating that, in total, each
capital-murder case costs a county roughly $2.3 million. Allen argues that
because of the high cost of prosecuting capital-murder cases, larger and more
well-funded counties—such as Harris County, where Allen was convicted—
more frequently pursue the death penalty than do smaller, less well-funded
counties. Because counties have disparate funding, and because the high cost
of capital-murder cases influences prosecutorial discretion, Allen argues that
Texas’s administration of the death penalty varies arbitrarily and capriciously
across county lines in violation of the Eighth and Fourteenth Amendments.
      Allen raised this claim on direct appeal and provided supporting
evidence. Namely, Allen presented statistics from the Texas Department of
Criminal Justice’s website showing the number of offenders sentenced to death
and executed from each county (with Harris County leading the pack), a press
release from a Texas legislator stating that capital-murder prosecutions cost
taxpayers an average of $2.3 million per case and that rural counties cannot
always seek the death penalty due to financial constraints, and two newspaper
articles describing the financial burdens that capital prosecutions impose on
smaller counties. Allen, 108 S.W.3d at 286. The Court of Criminal Appeals
found that this evidence did not suffice to prove disparate prosecution due to
disparate county funding because Allen did not provide “budgetary data for
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                                  No. 14-70017
each” Texas county. Id. The court further noted that even assuming that
smaller counties are less financially able to pursue capital cases, “the Capital
Litigation section of the Texas Attorney General’s office exists especially to aid
smaller counties in prosecuting capital cases.” Id. at 286 n.3.
      In any event, the Court of Criminal Appeals rejected Allen’s claim
because it concluded that “[t]he fact that Harris County, a large county with a
large budget, sentences more offenders to death than any other county in
Texas, does not in and of itself establish disparate treatment among similarly
situated defendants.” Id. at 286.      The court observed that one of the
newspaper articles on which Allen relied even acknowledged that “the ‘history
of ample budgets’ is only one of several factors that contribute to the higher
number of death penalty convictions in Harris County.” Id. The Court of
Criminal Appeals, therefore, denied Allen’s claim on the ground that he had
made “no threshold showing of disparate treatment between himself and other
similarly situated defendants.” Id. at 287. The Court of Criminal Appeals
clarified in a subsequent case that it had denied Allen’s claim on the merits
also as legally insufficient (not merely factually deficient) because it concluded
that the Constitution does not prohibit financial resources as being one factor
among many in the exercise of prosecutorial discretion whether to pursue the
death penalty. Crutsinger v. State, 206 S.W.3d 607, 612–13 (Tex. Crim. App.
2006).
      During Allen’s state habeas proceedings, the Court of Criminal Appeals
denied the claim on the merits, relying upon its prior resolution of that claim
on direct appeal. Because his claim was denied on the merits, Allen must show
that reasonable jurists would debate whether the state court’s decision was
based on an unreasonable determination of the facts or was contrary to, or an
unreasonable application of, clearly established federal law as determined by
the Supreme Court. 28 U.S.C. § 2254(d).
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      On federal habeas review, the district court analyzed Allen’s claim as one
raising an equal-protection argument and denied it on the merits. In his
motion for a COA, Allen asserts that this was error because, before the district
court, he specifically disclaimed reliance on the Equal Protection Clause. Allen
appears to argue that the district court should have instead analyzed his claim
under a cruel and unusual punishment rubric.
      Regardless of how Allen packages this claim, he cannot show that the
district court’s rejection of his claim was debatable. Even assuming that Allen
has provided facts sufficient to support the premise of his argument, no
Supreme Court case has held that the Constitution prohibits geographically
disparate application of the death penalty due to varying resources across
jurisdictions. Indeed, while Allen cites Supreme Court cases generally
requiring that capital-punishment regimes not be enforced arbitrarily and
capriciously, the state court’s application of these precedents was not
unreasonable because the Supreme Court has specifically acknowledged that
differing law enforcement resources and prosecutorial discretion make uniform
application of the death penalty impossible.
      In support of his claim, Allen principally relies on Gregg v. Georgia, 428
U.S. 153 (1976). In Gregg, the Supreme Court upheld a Georgia murderer’s
death sentence against a cruel and unusual punishment challenge. Georgia’s
death-penalty scheme required, in a separate proceeding after the guilt-
innocence phase, a finding of at least one enumerated aggravating
circumstance beyond a reasonable doubt. Id. at 163-66. If such an aggravating
circumstance were found, then the discretionary decision whether to impose
the death penalty rested on a consideration of any relevant aggravating and
mitigating circumstances. Id. Justice Stewart, writing for a three-justice
plurality, began by noting that the death penalty cannot “be imposed under
sentencing procedures that create[] a substantial risk that it [will] be inflicted
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in an arbitrary and capricious manner.” Id. at 188. The plurality reasoned in
large part that Georgia law—by requiring, in a separate proceeding, a finding
of an enumerated aggravating circumstance, and also allowing consideration
of other relevant aggravating and mitigating circumstances—required a
consideration of “the specific circumstances of the crime” and “the
characteristics of the person who committed the crime,” and was sufficient to
fairly guide the capital-sentencing decision. Id. at 197.
       The petitioner in Gregg, however, pointed to the many areas of discretion
still left open by Georgia’s scheme, including the fact that “the state prosecutor
has unfettered authority to select those persons whom he wishes to prosecute
for a capital offense and to plea bargain with them.” Id. at 199. But the Court
found no constitutional problem with the wide latitude that Georgia gave
prosecutors, jurors, and the governor to extend mercy. The Constitution, the
plurality concluded, is concerned not with latitude in the decision to withhold
the death penalty, but rather with latitude in the decision to impose it. Id. at
199; see also id. at 222 (White, J., concurring in the judgment) (separate three-
justice plurality) (“The Georgia Legislature has plainly made an effort to guide
the jury in the exercise of its discretion, while at the same time permitting the
jury to dispense mercy on the basis of factors too intangible to write into a
statute, and I cannot accept the naked assertion that the effort is bound to
fail.”).
       Allen argues that Texas’s disparate, county-based funding of capital
cases results in arbitrary and capricious sentencing outcomes and violates the
holding of Gregg. He also cites the Supreme Court’s general pronouncements
regarding the Constitution’s prohibition of arbitrariness and caprice in capital-
sentencing decisions, and the Court’s statements that sentencing regimes
avoid arbitrariness and caprice by focusing the capital-sentencing decision on
the circumstances of the crime and characteristics of the particular
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                                  No. 14-70017
defendant. E.g., Kennedy v. Louisiana, 554 U.S. 407, 436 (2008) (noting that,
to satisfy the Eighth Amendment, “[o]ne approach [of the Court] has been to
insist upon general rules that ensure consistency in determining who receives
a death sentence”); McClesky v. Kemp, 481 U.S. 279, 308 (1987) (presuming
that a death sentence was not arbitrarily imposed “[b]ecause [the] sentence
was imposed under Georgia sentencing procedures that focus discretion on the
particularized nature of the crime and the particularized characteristics of the
individual defendant”) (internal quotation marks omitted).
      The Court of Criminal Appeals reasonably concluded that Texas’s
differential funding is consistent with these precedents. Texas’s capital-
sentencing regime focuses the decision to impose the death penalty on the
circumstances of the crime and the characteristics of the defendant. Moreover,
the Supreme Court has specifically held that, “absent a showing that [a] capital
punishment system operates in an arbitrary and capricious manner, [a
defendant] cannot prove a constitutional violation by demonstrating that other
defendants who may be similarly situated did not receive the death penalty,”
and “opportunities for discretionary leniency [do not render] the capital
sentences imposed arbitrary and capricious.” McCleskey, 481 U.S. at 306-
07. The Court in McCleskey further noted that “[n]umerous legitimate factors
may influence the outcome of a trial and a defendant’s ultimate sentence, even
though they may be irrelevant to his actual guilt”; for example, “[t]he capability
of the responsible law enforcement agency can vary widely.” Id. at 307
n.28. The Court’s express acknowledgment of prosecutorial discretion and
varying law-enforcement capabilities cuts against Allen’s position. Allen has
not established that the state court unreasonably applied Supreme Court
precedent in rejecting Allen’s claim. Therefore, we deny a COA on this claim.




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                                       No. 14-70017
                                              C.
       Allen next seeks a COA on his Mills claim that the trial court’s
punishment-phase instructions confused the jury in a manner that increased
the likelihood of a death sentence. 2 The trial court instructed the jury that any
answer to Texas’s special issues that could result in Allen receiving a death
sentence must be unanimous, but that ten or more jurors would have to agree
to any answer supporting a life sentence. These instructions tracked the
language of Tex. Code Crim. P. art. 37.071, popularly known as the “12-10
rule.” See, e.g., Resendiz v. State, 112 S.W.3d 541, 548 (Tex. Crim. App.
2003). Although Texas law requires that, to answer the special issues in a
manner requiring a life sentence, ten of twelve jurors must agree on the
answer, it also provides that if the jury is unable to reach an answer on either
special issue (e.g., if only eleven jurors believed that mitigating circumstances
were insufficient to warrant a life sentence), the trial court must sentence the
defendant      to   life   imprisonment.        Tex.    Code     Crim.     P.   37.071(d)(2),
(g). Therefore, if a single juror believes that mitigating circumstances warrant
a life sentence and all of the others do not, the jury will be unable to answer
the mitigation special issue and the trial court will, therefore, have to sentence
the defendant to life. A single juror thus has the power to prevent a death
sentence based on his personal view of the mitigation evidence.
       Allen argues that this sentencing process was confusing and
violated Mills v. Maryland, 486 U.S. 367 (1988), because it gave the jurors the
misimpression that they did not have an individual ability to prevent a death



       2 Allen argues that the jury expressed confusion over the 12-10 rule during its
deliberations, but the record shows otherwise. Rather, prior to hearing the jury charge, a
juror expressed that “there is some confusion on our part from the instructions we heard
originally on [the 12-10 rule].” The trial court responded that “[i]t will all be in the Court’s
charge,” and the juror replied, “[t]hat’s all we need to know.” The record reflects no further
inquiry after the instructions were read.
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                                    No. 14-70017
sentence based upon their personal view of the mitigating evidence. Allen
raised this claim in his state habeas proceedings, and the state court denied it
on the merits. Therefore, to obtain a COA on this claim, Allen must show that
reasonable jurists would debate whether the state court violated, or
unreasonably applied, Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
       In Mills, the Supreme Court “held invalid capital sentencing schemes
that    require    juries     to   disregard   mitigating      factors   not   found
unanimously.” Beard v. Banks, 542 U.S. 406, 408 (2004). Because the
Constitution requires that jurors be able to consider any mitigating evidence,
see Lockett v. Ohio, 438 U.S. 586, 604 (1978), Mills prohibits sentencing
instructions that would lead reasonable jurors to conclude that they are
prevented “from considering any mitigating evidence unless all 12 jurors
agreed on the existence of a particular such circumstance.” Mills, 486 U.S. at
384.
       The Supreme Court has declined to give Mills a broad construction. See
Smith v. Spisak, 558 U.S. 139, 148–49 (2010). In Spisak, the Court reviewed
jury instructions and forms that “made clear that, to recommend a death
sentence, the jury had to find, unanimously and beyond a reasonable doubt,
that   each   of   the      aggravating   factors   outweighed     any    mitigating
circumstances.” Id. at 148. The Court found no Mills problem because “the
instructions did not say that the jury must determine the existence of each
individual mitigating factor unanimously. Neither the instructions nor the
forms said anything about how—or even whether—the jury should make
individual determinations that each particular mitigating circumstance
existed.” Id. The Court noted that Mills error occurs only where jurors are led
to believe that they are “precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of a particular such
circumstance.” Id. (quoting Mills, 486 U.S. at 384) (emphasis added).
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                                  No. 14-70017
      Allen points to no instruction in his case that would have led jurors to
believe that they were required to agree on the existence of any particular
mitigating circumstance. Indeed, the instructions in Allen’s case specifically
provided that jurors “need not agree on what particular evidence supports an
affirmative finding on” the mitigation special issue.
      Moreover, as the district court correctly observed, we have repeatedly
rejected arguments against the 12-10 rule like the one that Allen raises here,
holding that the 12-10 rule does not violate Mills. See, e.g., Reed v. Stephens,
739 F.3d 753, 779 (5th Cir. 2014); Druery v. Thaler, 647 F.3d 535, 542–43 (5th
Cir. 2011); Miller v. Johnson, 200 F.3d 274, 288–89 (5th Cir. 2000); Jacobs v.
Scott, 31 F.3d 1319, 1328–29 (5th Cir. 1994).
      Allen attempts to distinguish our prior cases on the ground that he was
sentenced after Texas’s 1991 revisions to the mitigation special issue. The
district court rejected this argument because several of our cases in fact
examined the post-1991 mitigation special issue.        Reed, 739 F.3d at 761
(petitioner charged in 1997); Parr v. Thaler, 481 F. App’x 872 (5th Cir. 2012)
(petitioner convicted in 2004); see also Druery v. State, 225 S.W.3d 491, 495
(Tex. Crim. App. 2007) (petitioner convicted in 2003). Allen argues that these
newer cases relied on precedent that analyzed the pre-1991 mitigation special
issue. However, that the later cases relied on older precedent does not allow
the panel to disregard their holdings and flout the circuit’s rule of orderliness—
“only an intervening change in the law . . . permits a subsequent panel to
decline to follow a prior Fifth Circuit precedent.” United States v. Alcantar,
733 F.3d 143, 145 (5th Cir. 2013).          Allen cites no such change in the
law. Therefore, the district court correctly held that Allen’s Mills argument is
foreclosed by binding circuit precedent. E.g., Druery, 647 F.3d at 542–43.
Moreover, although Allen cites precedent from the Sixth and Seventh


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                                        No. 14-70017
Circuits, 3 we must follow our own precedent. Therefore, we deny a COA on
this claim.
                                              D.
       Allen next seeks a COA on his claim that the state trial court violated
his Sixth and Fourteenth Amendment rights by denying his motion to strike a
prospective juror for cause. After individual voir dire, Allen challenged the
prospective juror for cause on the ground that he could not be impartial,
particularly with regard to considering mitigation evidence, but the trial court
denied the request. Once individual voir dire concluded, but before exercising
any peremptory strikes, Allen sought four additional strikes from the trial
court, arguing that four prospective jurors disqualified themselves by their
answers and that he should receive four additional peremptory strikes to
exercise against those jurors. The court deferred ruling until such time as the
defense expended its allotment of peremptory strikes. During the peremptory
strike process, when the court and the attorneys reached the last juror


       3  Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003); Kubat v. Thieret, 867 F.2d 351 (7th
Cir. 1989). We have previously rejected the argument that Kubat calls into question our
jurisprudence upholding Texas’s 12-10 rule under Mills. Druery, 647 F.3d at 543 (although
Kubat “arguably supports Petitioner’s claims under the Eighth and Fourteenth
Amendments,” it “does not supercede intervening Fifth Circuit precedent regarding
challenges to Texas’ 12-10 rule.”).
        Davis and Kubat are also distinguishable. In Davis, the trial judge, immediately after
his instruction regarding mitigating circumstances, told the jury, “Now, as you know, since
this is a criminal case, the law requires that in order for you to reach a decision all 12 of you
must be in agreement.” 318 F.3d at 684. In conjunction with other instructions emphasizing
the need for unanimity and in the absence of any instruction explaining that an individual
juror could prevent the death penalty, the Sixth Circuit found that the jury instruction
violated Mills because it did not clearly explain the law. See id. at 689 (“Given the
requirement of unanimity as to the jury’s ultimate recommendation of either death or life
under Ohio law, it is not surprising that the unarticulated but constitutionally required non-
unanimous mechanism that will prevent a recommendation of death is obscured to such an
extent that it cannot even be said to be implied by the instructions in this case.”). In Kubat,
the jury instructions misstated the law by requiring unanimous agreement on a decision not
to impose the death penalty. 867 F.2d at 370 (noting that the error was undisputed). Here,
in contrast, the jury instructions correctly stated the law, and Allen’s challenge is to the
constitutionality of Texas’s 12-10 rule itself.
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                                  No. 14-70017
accepted, the defense replied that it accepted her “but we don’t have any more
strikes.” Allen did not object when the trial court read the names of the
selected jurors or when the jury was sworn and seated.
      Allen used a peremptory strike to remove the prospective juror whom he
had sought to remove for cause. Allen argues that, had he not been forced to
use this arrow in his quiver, he would have been able to remove the final
accepted juror, who he believes was biased against him. During voir dire, that
juror testified that on a scale of 1 to 10, with 10 representing someone who
would impose the death penalty in every circumstance, she considered herself
to fall “between about a five and a seven.” Troublingly, the juror also stated in
an answer to the jury questionnaire that she believed one group of people is
more dangerous than others, and during voir dire, she specified “Blacks.” She
clarified that “[i]t seems like to me that the group of people that seem to commit
the most violent crimes from my point of view and what I hear are blacks.”
Trial counsel did not ask any more clarifying questions and never challenged
the last-accepted juror for cause, remarking only that the defense accepted her
“but we don’t have any more strikes.” Allen claims that she was biased in favor
of the death penalty and also biased against Allen because of his race.
      Allen raised this asserted error on direct review, but the Court of
Criminal Appeals concluded that by failing to identify the last-accepted juror
as an objectionable juror before the trial court, Allen had failed to preserve the
issue. Allen, 108 S.W.3d at 282–83. Allen again raised his juror-selection
claim during state habeas proceedings, but the Court of Criminal Appeals—
adopting the trial court’s recommendation—concluded that Allen had failed to
preserve the claim for review, denying it as barred and, in the alternative,
meritless. Ex parte Allen, 2010 WL 1709947, at *1.
      The district court concluded, regarding the prospective juror whom Allen
removed, that “[n]o constitutional violation results from a defendant having to
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                                  No. 14-70017
use a peremptory strike to remove objectionable jurors.” This is undoubtedly
a correct statement of the law, and to the extent that Allen makes arguments
about that prospective juror’s impartiality in his motion for a COA, these
arguments do not present a cognizable constitutional claim because the
prospective juror did not sit on the jury. See Ross v. Oklahoma, 487 U.S. 81,
88 (1988) (“We have long recognized that peremptory challenges are not of
constitutional dimension. . . . So long as the jury that sits is impartial, the fact
that the defendant had to use a peremptory challenge to achieve that result
does not mean the Sixth Amendment was violated.”). The district court further
concluded that by failing to contemporaneously object to the last-accepted
juror, Allen procedurally defaulted the claim, thereby barring federal habeas
review. Regardless of the procedural bar, the district court concluded that
Allen’s failure to develop an adequate record precluded a determination that
the last-selected juror was biased.
      “It is well settled that the Sixth and Fourteenth Amendments guarantee
a defendant on trial for his life the right to an impartial jury.” Ross, 487 U.S.
at 85. Both an unwillingness to consider mitigating evidence and racial bias
constitute a lack of impartiality. See id. at 85 (jurors are biased when their
views on capital punishment prevent them from following the law); Turner v.
Murray, 476 U.S. 28, 35 (1986) (discussing impermissible juror bias against
blacks). A death sentence must be overturned where a partial juror sat on the
jury that sentenced the defendant to death and the defendant “properly
preserved his right to challenge the trial court’s failure to remove [the partial
juror] for cause.” Ross, 487 U.S. at 86. Correspondingly, under the procedural
default doctrine, “a federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear because the prisoner
failed to abide by a state procedural rule.” Martinez, 132 S. Ct. at 1316. “A
state court’s invocation of a procedural rule to deny a prisoner’s claims
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                                 No. 14-70017
precludes federal review of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support the judgment and
the rule is firmly established and consistently followed.” Id.
      The district court’s ruling that Allen procedurally defaulted this claim is
not debatable. Under Texas law, “[e]rror is preserved only if the defendant
exhausts his peremptory challenges, is denied a request for an additional
peremptory challenge, identified a member of the jury as objectionable and
claims that he would have struck the juror with a peremptory challenge.”
Nelson v. State, 848 S.W.2d 126, 134 (Tex. Crim. App. 1992) (en banc). As set
forth above and as the state courts found, Allen failed to identify the last-
accepted juror as objectionable before the trial court. This state-law ground
was adequate to support denial of Allen’s claim, and Allen has not shown that
the Texas courts fail to consistently follow the contemporaneous objection rule
or that the rule is not firmly established. Martinez, 132 S. Ct. at 1316. Indeed,
we have “consistently upheld [Texas’s contemporaneous objection rule] as an
independent and adequate state ground that procedurally bars federal habeas
review of a petitioner’s claims.” Rowell v. Dretke, 398 F.3d 370, 374 (5th Cir.
2005).
      Allen argues that Texas’s contemporaneous objection rule is inadequate
to preclude federal review because it serves no palpable state interest. Allen
relies on Lee v. Kemna, 534 U.S. 362 (2002), for this contention, but Lee
provides him no support. In Lee, the petitioner had sought a continuance of
his state murder trial on the ground that critical alibi witnesses left the
courthouse during trial, and the trial court denied the continuance request. Id.
at 369–70.    Lee’s conviction was affirmed, and post-conviction relief was
denied, because his continuance request had failed to comply with a state
procedural rule requiring that such continuance requests be made by written
motion and contain certain factual showings. Id. at 372–73. The Court held
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                                   No. 14-70017
that this state procedural rule was inadequate to prevent federal habeas
review in Lee’s particular case because the state trial court had denied the
continuance request for a reason unrelated to the state procedural rule, no
state appellate decisions had ever required strict compliance with the
procedural rule in the circumstances of Lee’s case, and Lee had substantially
complied with the state procedural rule by stating on the record the reason for
the continuance request. Id. at 381–83, 387. Here, however, Allen cannot show
an absence of Texas decisions requiring compliance with the contemporaneous
objection rule, or that he substantially complied with the rule. Although he
explained to the trial court the basis for his belief that the prospective juror
whom he later removed was biased, he lodged no objection toward the last-
accepted juror.
         Moreover, in its Lee opinion, the Supreme Court relied on Osborne v.
Ohio, 495 U.S. 103 (1990), in which the Court had held that Ohio’s
contemporaneous objection rule was adequate to bar federal habeas review on
an issue that counsel did not raise before trial, reasoning that the
contemporaneous objection rule “serves the State’s important interest in
ensuring that counsel do their part in preventing trial courts from” committing
error.    Lee, 534 U.S. at 377 (quoting Osborne, 495 U.S. at 123).         Texas’s
contemporaneous objection rule serves that same important state interest—
giving trial courts the chance to correct their own errors—and Allen has not
shown that he contemporaneously objected or otherwise put the trial court on
notice of the last-accepted juror’s alleged bias against him.
         Allen also argues that the Court of Criminal Appeals’s decision was not
based upon an adequate and independent state-law ground because the state
habeas court, in addition to concluding that the claim was not preserved,
denied the claim on the merits in the alternative. However, we have held that
“the fact that the state court alternatively addressed the merits of [a] claim
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                                 No. 14-70017
does not prevent its procedural default determination from being an
independent basis that bars review by the federal courts.” Cotton v. Cockrell,
343 F.3d 746, 754 (5th Cir. 2003). Therefore, the procedural-default doctrine
applies to Allen’s jury-selection claim, and Allen can overcome the procedural
bar only by showing “cause for the default and resulting prejudice or that a
fundamental miscarriage of justice would result.” Id.; see also Martinez, 132
S. Ct. at 1316. Allen has not done so. Thus, we deny a COA on this claim.
                                      E.
      Allen seeks a COA on his claim that his trial counsel provided ineffective
assistance by failing to subpoena certain of Allen’s family members to testify
during the punishment phase of his trial. According to the affidavit of Gerald
Bierbaum, who worked as a mitigation specialist and investigator on Allen’s
trial, Allen’s defense team interviewed certain “family members, neighbors and
paramours,” some of whose testimony “supported the physical and sexual
abuse Mr. Allen suffered” before leaving home as a teenager. However, some
of the witnesses—apparently Allen’s family members—whom the defense team
had expected to cooperate refused to come to trial once they learned the nature
of the testimony that would be elicited, and by that time it was too late to
procure out-of-state subpoenas for them. The thrust of Allen’s ineffective-
assistance claim is that his trial counsel should have subpoenaed these
witnesses in advance to ensure that they would testify and support the
mitigating evidence that Allen was repeatedly physically and sexually abused
as a child. Instead, because the family members declined to testify, Allen’s
trial counsel elicited only second-hand testimony from individuals—most
prominently the defense expert—who recounted Allen’s self-reported claims of
victimization.
      Allen concedes that he did not raise this claim in the state courts;
therefore, § 2254(b)(1) bars relief for this unexhausted claim. However, Allen
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                                 No. 14-70017
argues that he can overcome this procedural bar under Martinez and Trevino
because his state habeas counsel was ineffective, and this ineffectiveness was
the reason for the procedural default of his ineffective-assistance claim. The
district court concluded that Allen could not overcome the procedural bar, and
in the alternative, that his ineffective-assistance claim was meritless because
he had not established that additional testimony from Allen’s family members
would have changed the outcome.
      Allen’s argument fails because even assuming that Allen’s state habeas
counsel was ineffective, which argument we need not reach, Allen cannot
establish that his underlying ineffective-assistance-of-trial-counsel claim “is a
substantial one, which is to say . . . that the claim has some merit.” Martinez,
132 S. Ct. at 1318. “An ineffective assistance claim has two components: A
petitioner must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003)
(citing Strickland, 466 U.S. at 687). To establish deficient performance, Allen
must demonstrate that counsel’s “acts or omissions were outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The Strickland Court cautioned that:
      Judicial scrutiny of counsel’s performance must be highly
      deferential. It is all too tempting for a defendant to second-guess
      counsel’s assistance after conviction or adverse sentence, and it is
      all too easy for a court, examining counsel’s defense after it has
      proved unsuccessful, to conclude that a particular act or omission
      of counsel was unreasonable. A fair assessment of attorney
      performance requires that every effort be made to eliminate the
      distorting effects of hindsight, to reconstruct the circumstances of
      counsel’s challenged conduct, and to evaluate the conduct from
      counsel’s perspective at the time. Because of the difficulties
      inherent in making the evaluation, a court must indulge a strong
      presumption that counsel’s conduct falls within the wide range of
      reasonable professional assistance; that is, the defendant must


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                                      No. 14-70017
       overcome the presumption that, under the circumstances, the
       challenged action might be considered sound trial strategy.
Id. at 689 (internal citations and quotation marks omitted). “Strickland does
not guarantee perfect representation, only a reasonably competent attorney.”
Harrington v. Richter, 562 U.S. 86, 110 (2011) (citation and internal quotation
marks omitted).
       Allen has not shown that his trial counsel’s failure to subpoena Allen’s
family members was constitutionally deficient. Allen’s principal evidence—
Bierbaum’s affidavit—establishes that Allen’s trial counsel hired multiple
investigators who interviewed “family members, neighbors and paramours”;
that the defense team discussed the mitigating evidence and decided to retain
Dr. Bettina Wright to provide expert testimony; that as trial approached, the
team selected witnesses to testify; that the defense team assumed the
witnesses would cooperate based on their interviews; that shortly before trial
some of the out-of-state witnesses refused to come to trial after learning the
nature of the testimony that the defense intended to elicit; and that when the
witnesses refused to appear, it was too late to subpoena them. 4 Although in
retrospect it may have been prudent to subpoena these witnesses in
anticipation of a possible change in their attitudes, it was not “outside the wide
range of professionally competent assistance” to assume that Allen’s family
members, who had been cooperative and had provided mitigating testimony in



       4  Allen’s trial counsel still put on evidence of Allen’s abuse at sentencing through
Wright’s expert testimony. Allen’s counsel also elicited testimony from Allen’s ex-wife on
cross-examination that Allen had told her that he had been molested by his uncle, but the
court sustained the government’s hearsay objection and instructed the jury to disregard the
statement. Allen makes a plausible argument that further corroborating testimony could
have been dispositive, pointing out that multiple jury notes during the sentencing phase
deliberation indicate that the jury was not only interested in, but also divided on, the
reliability of Wright’s testimony and the possible statements of Allen’s family members upon
which Wright had relied. However, this argument goes to Strickland’s prejudice prong, which
we do not reach.
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                                       No. 14-70017
their interviews, would be willing to testify on his behalf at a trial that could
result in a death sentence. See Harrington, 562 U.S. at 110 (“Just as there is
no expectation that competent counsel will be a flawless strategist or tactician,
an attorney may not be faulted for a reasonable miscalculation or lack of
foresight or for failing to prepare for what appear to be remote possibilities.”);
see also Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (“This Court has
repeatedly held that complaints of uncalled witnesses are not favored in
federal habeas corpus review because the presentation of testimonial evidence
is a matter of trial strategy and because allegations of what a witness would
have stated are largely speculative.”). Accordingly, we deny Allen’s request for
a COA on this claim.
                                              F.
       Finally, Allen appeals the district court’s denial of his requests for funds
to hire experts to help develop his ineffective-assistance claim. Allen requested
the funds to assist him in investigating which family members trial counsel
contacted and what mitigation-related information those family members
communicated to trial counsel. 5 Allen and his federal habeas counsel did not
have this information because they were unable to obtain all of Allen’s trial
counsel’s files, and the files that they did obtain contained no information
regarding any mitigation investigation.              The district court denied Allen’s
funding request based on its conclusion that Allen had not shown that he could
use the funding to develop a viable claim.
       The district court did not abuse its discretion in denying Allen’s request
for funding. A district court may deny a habeas petitioner’s request for funds


       5These facts would be required to prove Allen’s ineffective-assistance claim. See Day,
566 F.3d at 538 (“[T]o prevail on an ineffective assistance claim based on counsel’s failure to
call a witness, the petitioner must name the witness, demonstrate that the witness was
available to testify and would have done so, set out the content of the witness’s proposed
testimony, and show that the testimony would have been favorable to a particular defense.”).
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                                       No. 14-70017
under § 3599 when the petitioner has “failed to supplement his funding request
with a viable constitutional claim that is not procedurally barred” or “when the
sought-after assistance would only support a meritless claim.” Brown, 762
F.3d at 459 (citation omitted). As discussed above, Allen has not established a
viable claim that his trial counsel’s performance was constitutionally deficient.
Nor are we persuaded by Allen’s argument that granting him funding to
investigate his claim would produce the necessary evidence to support a viable
claim. Allen seeks to investigate the testimony his family members would have
given if they had been subpoenaed. This testimony might possibly lend support
to Allen’s prejudice argument, but it has no bearing on the reasonableness of
trial counsel’s expectation leading up to trial that the family members would
continue to cooperate and would appear to testify without being subpoenaed,
and therefore cannot cure Allen’s failure to establish the performance prong of
his Strickland claim. 6
       Finally, we have rejected the argument that Martinez and Trevino
require the granting of funds to develop claims such as Allen’s. See Crutsinger
v. Stephens, 576 F. App’x 422, 431 (5th Cir. 2014) (“Martinez . . . does not
mandate pre-petition funding, nor does it alter our rule that a prisoner cannot
show a substantial need for funds when his claim is procedurally barred from
review.”) (holding that district court did not abuse its discretion by denying
funding where petitioner failed to show that underlying ineffective-assistance
claim was substantial), cert. denied, 135 S. Ct. 1401 (2015). Accordingly, the




       6Of course, Allen’s argument also assumes that the family members will cooperate
with the investigator. Allen’s federal habeas counsel represented at oral argument that he
had tried calling Allen’s out-of-state family members but was unable to reach anyone other
than Allen’s twin sister, who stated that other family members did not want to be contacted.
Thus, even if the district court granted Allen funding, it is far from certain that the family
members would be any more willing to cooperate now than they were at the time of Allen’s
sentencing trial.
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   Case: 14-70017    Document: 00513264075     Page: 31   Date Filed: 11/09/2015



                                No. 14-70017
district court did not abuse its discretion when it denied Allen’s requests for
funding under § 3599.
                                     IV.
      In light of the foregoing discussion, we DENY a COA on all of Allen’s
claims and AFFIRM the district court’s denial of Allen’s funding requests.




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