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

                                                                                     FILED
                                      No. 14-70031                               May 21, 2015
                                                                                Lyle W. Cayce
WILLIAM EARL RAYFORD,                                                                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 Northern District of Texas
                               USDC No. 3:06-CV-978


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       William Earl Rayford seeks a certificate of appealability (“COA”) to
obtain appellate review of the district court’s denial of his claim, purportedly
under Martinez v. Ryan, ___ U.S. ___ 132 S. Ct. 1309 (2012), and Trevino v.
Thaler, ___ U.S. ___, 133 S. Ct. 1911 (2013), that he was not procedurally
barred from asserting a claim that his state trial counsel had been ineffective



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-70031
for failing to introduce certain hospital, prison, and jail records at trial for
broad mitigation purposes. For the reasons set out herein, we DENY his
application for a COA.
                                                  I.
          A.       Underlying Crime, Conviction, and Sentence

          Rayford was convicted in December 2000 of capital murder and
sentenced to death for the 1999 murder of his ex-girlfriend, Carol Hall. On
direct appeal, the Texas Court of Criminal Appeals upheld his conviction and
sentence. 1 It set out the facts of the crime as follows:
                   Appellant was Carol Hall’s former boyfriend and had
                   lived with Hall and her children for about three years.
                   A couple of months before the offense, Hall asked
                   appellant to move out and ultimately removed him
                   from her home with the help of her uncle. Hall’s
                   twelve-year-old son, Benjamin Thomas, testified that
                   Hall was afraid of appellant. About 6:30 on the
                   morning of the offense, appellant entered Hall’s house
                   with a key. Appellant and Hall began to argue about
                   appellant having a key to the house. The argument
                   escalated, and Hall began screaming for Thomas.
                   When Thomas woke up and came out of his room,
                   appellant stabbed him in the back with a knife. Hall
                   fled the house and ran down the street toward her
                   mother’s house. Appellant ran after her and caught
                   her before she reached the next house. Hall was
                   wearing her night clothes and was barefooted.

                   Thomas, who ran from the house after them, saw
                   appellant pick up Hall and throw her over his
                   shoulder. Hall was screaming and beating on
                   appellant as he carried her toward a creek behind the
                   house. Thomas ran to a neighbor’s house and called
                   the police. Dwayne Johnson, a bus driver who was
                   parked at the intersection by Hall’s house, saw a

          1   Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 823
(2004).
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                            No. 14-70031
       woman and a man run from Hall’s house. Johnson
       testified for the defense that when the man caught the
       woman he beat her severely in the head area to the
       point that she became “lifeless.” The man then
       dragged her behind the house where Johnson could no
       longer see them.

       Police arrived on the scene and began searching for
       Hall. About an hour later, appellant appeared in Hall’s
       backyard. He was wet and shivering and complaining
       of an injury to his knee, and he appeared to have grass
       and blood on his clothes. Appellant was arrested and
       taken to a hospital for treatment of his injuries. He
       consented to a search of his person which included
       giving samples of blood, saliva, and trace evidence.

       Hall’s body was found shortly thereafter about 300 feet
       inside a culvert pipe. There was a large blood stain on
       the concrete wall of the pipe about 150 feet from the
       entrance. Water was running through the bottom of
       the pipe. The floor of the pipe, especially where the
       water was deepest, was covered with broken bottles,
       glass objects, metal, rocks, sticks, and other debris.

       Dallas County Medical Examiner Jennie Duvall
       testified to Hall’s injuries. There was evidence of both
       ligature and manual strangulation. There were blunt
       force injuries including blows to the face and scalp and
       injuries to the knees, upper chest, and shoulder. There
       were sharp force injuries inflicted by a sharp object
       such as a knife, including a stab wound on the inside
       of an elbow. There were also numerous superficial cuts
       and scrapes about the head and body. The injuries to
       the head were consistent with striking or slamming
       against concrete. There were no cuts or other injuries
       to Hall’s feet, suggesting that she was carried through
       the culvert. Duvall testified that Hall was alive when
       strangled. The cause of death was determined to be
       strangulation, with blunt and sharp force injuries.
       Hall could have died from the strangulation alone, the
       blunt force injuries to her head alone, or the
       combination of these injuries. Duvall further testified
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                                    No. 14-70031
               that it was her opinion that Hall died in the culvert
               because the culvert was the most likely surface to have
               caused the head injuries and no blood was found until
               some 150 feet inside the culvert. She conceded on
               cross-examination, however, that Hall could have been
               strangled anywhere.

               Swabs of trace blood taken from appellant’s lip, head,
               and neck matched Hall’s DNA. Blood on appellant’s
               shirt matched Hall’s DNA. The blood stain on the
               concrete in the culvert also matched Hall’s DNA. The
               DNA expert testified that the probability of the DNA
               belonging to someone other than Hall was one in 116
               billion. 2

      The jury found Rayford guilty of capital murder. During the punishment
phase of the trial, the State introduced evidence of Rayford’s risk of future
dangerousness, including evidence that he had pleaded guilty to the brutal
murder of his wife, Gail Rayford, under somewhat similar circumstances in
1986, as well as his habitual drug use. 3 Dallas Police Officer Thomas Hitt
testified for the State concerning the circumstances of the 1986 murder.
      In response, the defense offered mitigating evidence regarding his
upbringing, his good characteristics, and his lack of propensity for future
dangerousness. The defense offered testimony regarding, among other things,
Rayford’s father’s drinking problem, his mother’s relationship with a boyfriend
who would beat her violently in the presence of her children, and his lack of
supervision as a child.
      The defense presented the expert testimony of Dr. Gilda Kessner
regarding Rayford’s future dangerousness. She reviewed more than 1,000
pages of documents and conducted seven interviews with Rayford himself and
his friends and family members. Based on her review, she found that his


      2   Id. at 525-26.
      3   Id. at 527.
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                                       No. 14-70031
childhood was troubled and was marked by “multigenerational substance
abuse” which was “part of celebration and attainment of daily living in some
cases,” and that Rayford himself suffered from substance abuse. Dr. Kessner
testified that Rayford’s growing up without a father figure in witnessing the
domestic violence against his mother caused him to suffer later in life,
including from depression. She also testified that he had not been a
disciplinary problem in the Dallas County jail and that he had a “positive
adjustment” during his previous incarceration for killing his wife.
      Most relevant to this COA application, Dr. Kessner reviewed the records
from Parkland Hospital and records from the Texas Department of Criminal
Justice (“TDCJ”) pertaining to Rayford’s suicide attempt following the 1986
murder of his wife, among other records. Rayford’s counsel had attempted to
introduce the Parkland Hospital records at trial, but the State objected that
the proper predicate had not been laid, and the trial court sustained the
objection. Although the records themselves were not admitted, Dr. Kessner
testified regarding the contents of those records. She testified that the records
showed that Rayford was admitted into the hospital after killing his wife
because he had stabbed himself repeatedly, almost amputating his right hand
and necessitating the removal of his gallbladder. Based partly on this suicide
attempt, which she claimed demonstrated Rayford’s remorse, Dr. Kessner
concluded that Rayford would not pose a continuing threat or risk of future
dangerousness, despite the 1999 murder of Carol Hall.
      In December 2000, the jury sentenced Rayford to death, and the Texas
Court of Criminal Appeals affirmed in 2003. 4




      4   Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003).
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                                 No. 14-70031
      B.    State Habeas Proceeding

      Represented by another attorney, Rayford filed a state habeas petition
on March 7, 2003. Among other claims, the state habeas petition raised a
number of issues relating to Rayford’s trial counsel’s failure to introduce the
Parkland Hospital medical records relating to his 1986 suicide attempt
following the murder of his wife, his TDCJ (prison) records relating to that
suicide attempt, and Dallas County jail records relating to his mental health.
Rayford’s counsel argued that he was “denied his right to individualized
sentencing” under the Eighth and Fourteenth Amendments “when the trial
court sustained the objection by the prosecution of crucial mitigating evidence,
the Parkland Hospital medical records. These records are evidence of Rayford’s
remorse and acceptance of responsibility.” In addition to showing his remorse
and acceptance of responsibility with the suicide attempt, Rayford asserted
that “[t]hese medical records also document provocation. Gail Rayford [his ex-
wife] had pick[ed] up a shotgun five years before and shot William Rayford
during an argument.”
      Rayford claimed that “because the one hundred and nineteen (119) pages
of 1986 Parkland Hospital medical records were not in evidence, defense
counsel was forced to rely on the inaccurate and incomplete testimony of
Officer Hitt, a state punishment phase witness, and Defense Exhibit 3
[Rayford’s TDCJ records] to argue remorse as a mitigator . . . .” Rayford’s trial
counsel had pointed to the fact that Officer Hitt testified that Rayford had
stabbed himself in the stomach, causing “seriously deep wounds,” had cut both
his wrists, sliced his neck, and stabbed himself in the chest before jumping “out
a plate glass window.” Rayford’s habeas counsel argued that Officer Hitt’s
testimony on Rayford’s wounds was vague because he could not recall exactly
what had happened in 1986.


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                                 No. 14-70031
      In connection with the state habeas proceeding, Dr. Kessner attested in
an affidavit that if she had been able to testify about the contents of certain
Parkland Hospital records, she “would have testified that the documentation
showed that that Mr. Rayford was remorseful for the 1986 killing of Gail
Rayford, and that his severe, self-inflicted injuries were evidence of his guilt,
shame, depression, remorse, and self-perceived need to be punished.” She also
opined that in her review of Rayford’s medical records and police reports
following the 1999 murder, Rayford had apparently had a “passive suicide”
attempt in which he “allowed others to inflict injury on him, without any
resistance, following the death of Carol Hall,” which she found to be “consistent
with Mr. Rayford’s guilt, shame, depression, remorse, and self-perceived need
to be punished for the 1999 killing of Carol Hall.”
      Rayford’s state habeas counsel also argued that Rayford’s trial counsel
had rendered ineffective assistance because he “failed to establish the proper
predicate and introduce the Parkland Hospital medical records, which were
crucial mitigating evidence of remorse, and/or make [a] proffer of what the
evidence would have shown had it been admitted,” in violation of his Sixth
Amendment rights. His counsel argued that these records showed Rayford’s
“remorse and acceptance of responsibility.” More generally, counsel argued
that the failure to introduce the Parkland Hospital medical records opened the
door for the prosecutor to comment in closing argument that Rayford’s attorney
“didn’t spend much time on the mitigation question, simply because there is
not mitigation in this case.”
      Rayford’s state habeas counsel also argued that Rayford’s guilty plea in
the 1986 murder of his wife should not have been admitted to enhance his
sentence in this case because it was not knowingly, voluntarily, or intelligently
made. Specifically, counsel offered the affidavit of Dr. Kessner, in which she
opined, “based on a review of the medical records and police records, that Mr.
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                                 No. 14-70031
Rayford suffered from mental illness at the time of the 1986 and 1999 killings.”
In addition to his apparent depression, she highlighted the fact that both
killings fit within the literature on “abandonment rage,” including both his
“overkill” and acting “reactively” inherent in both murders and the suicide
attempt following the 1986 murder. Dr. Kessner pointed to “the facts of the
crime, the medical record notation in the Dallas County jail records of
Rayford’s mental illness, and the Parkland medical records of Rayford’s
attempted suicide” as evidence in support.
      Rayford’s state habeas counsel also argued that, once the State
introduced evidence of the 1986 murder, Rayford’s trial counsel should have
introduced the above cited evidence to argue that Rayford did not have
antisocial personality disorder but rather had “a continuing history of mental
illness and personality disorder that pre-dated the 1986 killing of Gail Rayford,
that continues to the present day.” In short, counsel argued, “[t]his information
was necessary, crucial and valid mitigating evidence that was not presented to
the jury for consideration when deciding between life and death.”
      The state habeas court rejected all of Rayford’s habeas claims. The court
noted that Dr. Kessner had reviewed the Parkland Hospital records and TDCJ
records relating to the 1986 suicide attempt. Although the Parkland Hospital
records were not admitted after the trial court sustained the State’s objection,
it found, “nevertheless, that the jury heard substantial testimony from Kessner
regarding information contained in medical records.” It also found that the
“TDCJ records twice describing applicant’s suicide attempt were received by
the jury as Defense Trial Exhibit 3.” The court also found that when Officer
Hitt had testified regarding Rayford’s 1986 suicide attempt, he had “pointedly
stated that applicant was not ‘fleeing’ law enforcement when he jumped out
the window,” which bolstered Dr. Kessner’s mitigating testimony.


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                                 No. 14-70031
      The court found that Rayford’s Parkland Hospital records claim was
procedurally barred because it could have and should have been raised on
direct appeal. In the alternative, the court found that the claim failed on the
merits. The court reasoned that Rayford’s trial counsel had indeed failed to lay
a proper predicate for introducing the Parkland Hospital medical records,
which were themselves hearsay, and that the trial court had properly
sustained the State’s objection. The state habeas court also explained that even
if the trial court had erred, Rayford cannot show that the failure to introduce
those records harmed him because he “fails to point out any information in the
medical records that the jury did not hear about through an alternative means
and which was so crucial to the case that the jury’s failure to see the actual
piece of paper contributed to his punishment”:
            188. The Court finds that the information contained in
            the medical records was submitted to the jury through
            the testimony of Kessner, Hitt, and applicant’s TDCJ
            records (Defense Exhibit 3). Even without receiving
            the hospital records as evidence, the jury knew that,
            after killing his wife, applicant cut his neck, stabbed
            himself 17 times in the abdomen (causing bubbling
            puncture wounds), cut his wrists (nearly amputating
            his right hand), jumped out of his second story
            window, and was then transported to the hospital,
            where he had to have his gall bladder removed. The
            jury knew that, as a result of this suicide attempt,
            TDCJ referred him for a psychological exam. The jury
            also heard Kessner’s opinion that applicant would not
            pose a continuing threat or risk for danger, which was
            based in part on her review of these hospital records.
            The jury saw pictures of the window from which
            applicant had jumped. Officer Hitt, a State’s witness,
            agreed that applicant had some “pretty deep and
            serious cuts” on his stomach or chest area and was
            transported to the hospital.

            189. The Court finds nothing in the medical records
            attached to the writ application that adds any
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                                 No. 14-70031
            significant information to what the jury heard. In this
            regard, the medical records present the information in
            a form that is comparatively incomprehensible to the
            average non-medical professional.

            190. Thus, the Court finds that the jury received the
            information in a more understandable format and did
            not lack any information regarding applicant’s suicide
            attempt. (Citations omitted).

      The court also found that, “to the extent the hospital records tend to
reflect remorse, the Court finds that it is remorse for the murder of his wife in
1986, not for the murder of the victim in this case.” It reasoned that the jury
could have reasonably concluded that if that earlier remorse had not prevented
him from killing Carol Hall in 1999, it “therefore would not prevent him from
killing again in the future.” Thus, the court concluded that “the exclusion of
the hospital records did not harm applicant” and “did not violate applicant’s
Eighth Amendment right to individualized sentencing.”
      Similarly, the court found that Rayford’s trial counsel’s failure to have
the Parkland Hospital records admitted did not constitute ineffective
assistance of counsel because Rayford failed to prove that there is “no plausible
professional reason” for his trial counsel’s failure to pursue the admission of
the records. The court especially noted that there was a rational explanation
for the failure: “The Court finds that trial counsel could have reasonably
concluded the jury would not be aided by the 119 pages of technical records
and that the information he wanted the jury to know was more easily
discernible in the 13 pages of TDCJ records that he used to elicit the suicide
information from Dr. Kessner.” In the alternative, the court concluded that
Rayford had failed to show prejudice because, as set out above, the court found
that the jury had already received the information regarding the 1986 suicide
attempt in a more intelligible form and, in any event, the earlier suicide

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                                       No. 14-70031
attempt would not preclude the jury from concluding that Rayford still posed
a risk of future danger.
         With respect to the admission of evidence concerning the 1986 murder,
the court found that Rayford could not collaterally attack the proceeding. Even
if he could collaterally attack it, the court concluded, in the alternative, that
Rayford had failed to rebut the presumptions that he “was mentally competent,
understood the 1986 proceedings, and voluntarily entered his plea of nolo
contendere,” based on its review of the record from that proceeding.
         Concerning his trial counsel’s failure to introduce evidence of Rayford’s
alleged mental illness and the “abandonment rage” theory at trial for the 1999
murder, the court noted that Dr. Kessner had already presented extensive
mitigating testimony based on her review of his medical records and interviews
with his friends and family, but Rayford himself “refused to allow counsel to
develop this line of mitigating evidence because both he and his siblings did
not want to bring their mother into the courtroom to malign her past sexual
conduct.” The court found that the “abandonment rage” evidence that Dr.
Kessner discussed in her affidavit (including, as noted above, the facts of the
1986 murder and the Parkland Hospital and Dallas County jail records) would
only show a motive for the murders and would not negate mens rea or
otherwise excuse the killings. Thus, the court concluded that Rayford’s trial
counsel was not ineffective for introducing this additional evidence.
         The state district court also rejected every other claim Rayford asserted
for habeas relief. On May 24, 2006, the Texas Court of Criminal Appeals
adopted the district court’s findings of fact and conclusions of law and entered
an order denying habeas relief. 5



         5   Ex Parte Rayford, No. WR-63201-01, 2006 WL 1413533 (Tex. Crim. App. May 24,
2006).
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                                    No. 14-70031
        C.    Federal Habeas Proceeding

        Rayford was appointed new habeas counsel, who filed a federal habeas
petition on May 24, 2007, then a first amended federal habeas petition on
September 21, 2007. The first amended federal habeas petition set out a
number of claims, but only one concerning the failure to introduce records,
specifically the Parkland Hospital medical records. The petition claimed that
Rayford’s trial attorney provided ineffective assistance by failing to establish
the proper predicate to get the Parkland Hospital medical records admitted
into evidence for the purpose of showing “crucial mitigation evidence of
remorse” following the 1986 murder of his wife. It also claimed that the district
court’s failure to admit the Parkland Hospital medical records violated his
Eighth and Fourteenth Amendment rights because they would have
demonstrated his remorse after the 1986 murder and provocation because
“Gail Rayford had pick[ed] up a shotgun five years before and shot William
Rayford during an argument.”
        The first amended habeas petition referenced certain records in
connection with other arguments but did not argue that those records should
have been submitted to the jury to show mitigation. For example, it noted that
Dr.    Kessner    had    reviewed    Rayford’s     “prior   incarceration   records,
parole/supervision records, Parkland Hospital records from 1986, prior court
records, and Salvation Army substance abuse treatment records.” It asserted
that “[i]ndicators of Mr. Rayford’s mental instabilities and suicide attempts
were woven throughout the record” and that his attorneys should have
investigated those issues more. The petition also argued that “[t]he facts of the
1986 crime, the medical record notation in the Dallas County jail records of
Rayford’s mental illness, and the Parkland medical records of Rayford’s
attempted suicide would have put defense counsel on notice of the need to have
Mr. Rayford examined by a mental health expert early in the preparation of
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                                        No. 14-70031
the defense case,” in connection with the “abandonment rage” theory (i.e.,
“overkill” and acting “reactively”).
         Thus, with respect to Rayford’s state habeas counsel’s alleged failure to
introduce mitigating evidence, his first amended federal habeas petition
addressed only the Parkland Hospital medical records, and only for the
purpose of showing remorse, as well as perhaps to show provocation for the
1986 murder of Gail Rayford.
         On July 12, 2011, the magistrate judge issued findings and
recommended that Rayford’s application for the writ of habeas corpus be
denied on all grounds. 6 With respect to the state trial court’s refusal to admit
the Parkland Hospital medical records regarding Rayford’s 1986 suicide
attempt into evidence, the magistrate judge observed “that petitioner’s medical
records, which purportedly contain evidence of his remorsefulness after a
different murder, were arguably not mitigating at all. Moreover, the records
were excluded because defense counsel failed to lay a proper predicate for their
admission into evidence. As petitioner concedes, his lawyer never attempted to
introduce the records again.” 7 As the state habeas court had found, the district
court had not violated Rayford’s rights “[b]ecause the medical records were
excluded based on the ‘evenhanded application’ of an evidentiary rule and
petitioner was not prevented from proffering or re-urging the evidence.” 8
         Next, the magistrate judge examined the two-prong test for ineffective
assistance of counsel claims established in Strickland v. Washington, 466 U.S.
668 (1984). After noting that it had “already addressed most of the alleged
errors which form the basis of petitioner’s ineffective assistance of counsel


         6   Rayford v. Thaler, No. 3-06-CV-0978-B-BD, 2011 WL 7102282 (N.D. Tex. July 12,
2011).
        Id. at *7.
         7

        Id. (citing Byrne v. Butler, 845 F.2d 501, 517 n.14 (5th Cir. 1988); Riles v. McCotter,
         8

799 F.2d 947, 953 (5th Cir. 1986)).
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                                       No. 14-70031
claims,” 9 it focused on the second prong, finding that Rayford was not
prejudiced by his trial counsel’s failure to introduce the Parkland Hospital
medical records:
             Given this testimony, the medical records of
             petitioner’s suicide attempt, which describe his
             injuries in more detail but primarily document
             treatment for those injuries over time, would have
             added very little to the jury’s understanding of
             petitioner’s mental state following the 1986 murder.
             Moreover, to the extent petitioner’s suicide attempt
             shows remorse, it is remorse for the murder of Gail
             Rayford, his former wife—not remorse for the murder
             of Carol Hall, the victim in this case. It strains
             credulity to suggest that the jury would have viewed
             petitioner in a more favorable light because he showed
             remorse for a murder committed more than 14 years
             earlier. 10

      The magistrate judge later noted that Dr. Kessner had “reviewed more
than 1,000 pages of documents and interviewed petitioner and seven members
of his family” in connection with her mitigating testimony. 11 With respect to
the “abandonment rage” issue, the magistrate judge concluded: “None of the
documents in petitioner’s 1986 case file suggest that he was mentally
incompetent. To the contrary, the file contains a psychiatric evaluation
indicating that petitioner was fully competent to enter a plea of nolo contendere
in the murder case.” 12 Thus, the magistrate judge rejected on the merits all of
Rayford’s claims either directly or tangentially related to the Parkland
Hospital medical records, the TDCJ records relating to the suicide attempt, or




      9 Id. at *15.
      10 Id. (citations to record omitted).
      11 Id. at *17.
      12 Id. at *18.

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                                  No. 14-70031
the jail records relating to his alleged mental illness, on substantially the same
grounds as the state habeas court had.
      D.    Rayford’s Objections to Findings and Recommendations
            and First Petition for COA

      While awaiting the magistrate judge’s findings and recommendations,
Rayford’s federal habeas counsel had died, and his current counsel was
appointed to replace her. Rayford’s objections to the magistrate judge’s
findings and recommendations now focused heavily on allegedly unheard
mitigating evidence, asserting: “During the punishment phase of Rayford’s
trial, the jury did not hear mitigating evidence contained in medical and prison
records. These records detail Rayford’s struggle with mental illness and
extreme remorse after committing the two murders.” For the first time,
Rayford argued that trial counsel failed to introduce into evidence documents
other than the Parkland Hospital medical records.
      The objections detailed the contents of the Parkland Hospital and TDCJ
records, before asserting that Dr. Kessner, in her affidavit, “averred that these
medical records lead to three distinct conclusions”: first, that his 1986 suicide
attempt showed that he “was remorseful for the 1986 murder of Gail Rayford.
His severe, self-inflicted injuries evidence ‘his guilt, shame, depression,
remorse and self-perceived need to be punished’”; second, that he struggled
with mental illness, based on his TDCJ records and records from the Dallas
County jail; and third, that he never received treatment for his alleged mental
illness, based on his prison records and unspecified other records. Thus,
Rayford argued, the “excluded evidence” should have been admitted, and the
magistrate judge erred by finding the trial court’s failure to admit the evidence
was harmless. Rayford continued:
            The Magistrate Judge has found that Rayford’s
            mitigation claims are not properly preserved because
            of the failure of state habeas counsel to present
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                                       No. 14-70031
              additional evidence establishing Rayford’s mental
              illness in 1986 and to present evidence showing that
              Rayford did not impede the mitigation investigation.
              To date, such failings of state habeas counsel have
              been unreviewable. However, the Supreme Court
              currently has taken under advisement two cases
              which suggest that the court is considering
              circumstances under which such a claim may be
              recognized: Maples v. Thomas, 131 S. Ct. 1 71 8 (2011),
              and Martinez v. Ryan, No. 10-1001 , __ S. Ct. __, 2011
              WL 380903 (June 6, 2011). Therefore Petitioner asks
              that this Court take this case under advisement and
              withhold the entry of any order concerning the
              magistrate’s findings of fact and conclusions of law
              until the Supreme Court has clarified this issue.

In fact, Rayford never argued in his first amended federal habeas petition that
his state habeas counsel had been ineffective; he did not raise that issue until
his objections to the findings and recommendations. 13
       On January 25, 2012, the district court overruled Rayford’s objections,
accepted the magistrate judge’s findings and recommendations, denied
Rayford’s application for a writ of habeas corpus, and denied a certificate of
appealability (“COA”). 14 The district court summarized the findings of the
magistrate judge and the state habeas court concerning the state trial court’s
exclusion of the Parkland Hospital medical records and Rayford’s ineffective
assistance of counsel claim relating to those records, then added:
              The state-court findings are consistent with this
              Court’s own review of those records. In addition, of the
              approximately 116 pages of medical records, less than
              half (approximately 49 pages) appear directly


       13  His first amended federal habeas petition specified each ineffective assistance claim
as relating to trial or direct appellate counsel. The only explicit reference to state habeas
counsel was his statement that state habeas counsel retained an expert to analyze the venire,
but he did not allege that state habeas counsel provided ineffective assistance in hiring that
expert.
        14 Rayford v. Thaler, No. 3:06-CV-0978-B, 2012 WL 215321 (N.D. Tex. Jan. 25, 2012).

                                              16
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                                        No. 14-70031
               pertinent to Mr. Rayford’s injuries sustained in
               connection with the murder of his wife in June of 1986.
               The remainder appear to be from different periods in
               his life and pertain to myriad injuries which may be
               inadmissible and even prejudicial to the petitioner.
               Finally, many of the records of other injuries are
               intermingled with the records from the June 1986
               incident, making it more difficult for jurors to keep
               track of which injuries pertain to which date.
               Therefore, the state-court findings are entitled to
               deference and have not been shown incorrect. The
               state court’s adjudication of this claim is neither
               contrary to nor an unreasonable application of
               established federal law, nor is it based on an
               unreasonable determination of fact. The Magistrate
               Judge’s recommendation on this claim is correct. This
               claim is DENIED. 15

     In footnotes 11 and 12, the district court emphasized that it refused to
consider claims Rayford had raised for the first time in his objections to the
findings and recommendations:
               The claim in the Amended Petition focuses on the
               Parkland Hospital medical records, as did the state
               habeas application. To the extent that the Objections
               attempt to include more records in this claim than are
               reflected in the petition before this court, leave has not
               been granted to amend the pleadings to include any
               matters not exhausted in the state court. 16

               The claim in the Amended Petition asserts that these
               medical records show critical evidence of remorse that
               was not adequately presented elsewhere, as was
               presented in the state habeas application. To the
               extent that the Objections attempt to expand the
               allegation of prejudice, leave has not been granted to




     15   Id. at *10-11 (footnotes and citations to record omitted).
     16   Id. at *10 n.11.
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                                   No. 14-70031
             amend the pleadings to include any matters not
             exhausted in the state court. 17

      The district court also rejected Rayford’s argument relating to the failure
of his state trial counsel to offer the “abandonment rage” theory. 18 Finally, the
district court declined to stay the proceedings because, even assuming Rayford
had properly asserted a claim in his federal habeas petition based on his state
habeas counsel’s failure to raise a particular ineffective assistance of counsel
claim, no Supreme Court precedent at that time would have allowed him to
pursue that claim.
      E.     Remand for Trevino/Martinez Determination

      Rayford next sought a certificate of appealability from this court solely
on the issue of whether “reasonable jurists could conclude that Rayford was
denied a constitutional right when the district court failed to review Rayford’s
timely and specific objections to the magistrate judge’s findings and
recommendations regarding ineffective assistance of counsel in light of”
Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012).
             In Martinez, the Supreme Court held that a habeas
             petitioner may establish cause to excuse a procedural
             default as to an IATC [ineffective assistance of trial
             counsel] claim by showing (1) that his state habeas
             counsel was constitutionally deficient in failing to
             include the claim in his first state habeas application,
             and (2) that the underlying IATC claim is
             “substantial,” meaning that it has “some merit.” 19

      In early 2012, when Rayford sought a certificate of appealability from
the district court’s initial denial of habeas relief in this case, it was unclear



      17Id. at *10 n.12.
      18Id. at *11-12.
     19 Newbury v. Stephens, 756 F.3d 850, 868 (5th Cir. 2014), cert. denied sub nom.

Newbury v. Stephens, 135 S. Ct. 1197 (2015) (citing Martinez, 132 S. Ct. at 1318).
                                         18
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                                        No. 14-70031
whether or not Martinez applied to Texas habeas procedure. Indeed, on June
28, 2012, the Fifth Circuit held in Ibarra v. Thaler, 687 F.3d 222 (5th Cir.
2012), that Martinez did not apply to Texas cases, which would have precluded
any procedurally defaulted claim Rayford might have stated regarding his
state habeas counsel’s alleged ineffective assistance. However, while Rayford’s
petition for COA was pending, the Supreme Court issued Trevino v. Thaler,
___ U.S. ___, 133 S. Ct. 1911 (2013), which “overruled Ibarra and held that
Martinez applies to Texas cases because ‘the Texas procedural system—as a
matter of its structure, design, and operation—does not offer most defendants
a meaningful opportunity to present a claim of ineffective assistance of trial
counsel on direct appeal.’” 20
      Because Trevino effected a change in the law, we remanded “to the
district court for full reconsideration of the Petitioner’s ineffective assistance
of counsel claim in accordance with both Trevino and Martinez . . . . If the
Petitioner requests it, the district court may in its discretion stay the federal
proceeding and permit the Petitioner to present his claim in state court.” 21
      On remand, the district court ordered both Rayford and the State to file
supplemental briefs on Rayford’s purported Trevino/Martinez claim, including
“what procedures and evidentiary development are appropriate to fully
reconsider the claim.” Both parties did so, and Rayford’s brief largely focused
on requesting that the district court remand to state court to allow him to
exhaust his purported Trevino/Martinez claim.
      On May 13, 2014, the district court entered an order directing Rayford
to file additional briefing on his claim because his prior supplemental “briefing
d[id] not identify any claims that need further development, or any material



      20   Newbury, 756 F.3d at 868.
      21   Rayford v. Stephens, 552 F. App’x 367, 368 (5th Cir. 2014).
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                                      No. 14-70031
evidence that was not presented to the state court.” The district court noted
that, on appeal to this court, Rayford had characterized his Trevino/Martinez
claim as follows: that “trial counsel was ineffective for failing to offer into
evidence ‘voluminous medical records from Parkland Hospital pertaining to his
attempted suicide.’”
      The district court observed that in footnotes 11 and 12 of its prior opinion
accepting the magistrate judge’s findings and recommendations and rejecting
Rayford’s objections thereto, it specifically found that Rayford’s only claim in
his first amended federal habeas petition relating to his state trial counsel’s
failure to introduce certain records concerned the Parkland Hospital medical
records and their use as “critical evidence of remorse.” 22 It had also explained
in those footnotes that those precise issues had already been presented in his
state habeas application. The district court emphasized at that time that, “[t]o
the extent that the Objections attempt to include more records in this claim
than are reflected in the petition before this court” or “to expand the allegation
of prejudice, leave has not been granted to amend the pleadings to include any
matters not exhausted in the state court.” 23
      The district court noted that Rayford’s supplemental briefing on his
purported Trevino/Martinez claim referred to Rayford’s objections to the
findings and recommendation, not to his first amended federal habeas petition.
The district court made it clear that Rayford’s counsel had misconstrued the
magistrate judge’s findings and recommendations:
               Without any citation to the record, Rayford objected
               that the Recommendation “found that Rayford’s
               mitigation claims are not properly preserved because
               of the failure of state habeas counsel to present
               additional evidence establishing Rayford’s mental


      22   Rayford v. Thaler, 2012 WL 215321, at *10 nn.11 and 12.
      23   Id.
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                                   No. 14-70031
            illness in 1986 and to present evidence showing that
            Rayford did not impede the mitigation investigation.”
            Rayford did not identify, however, where these
            findings were made in the Recommendation and this
            Court has found no such finding. Instead, the
            Recommendation appears to note the lack of evidence
            presented by federal habeas counsel. [emphasis in
            original]

      Given that the district court could not determine what “newly discovered
records” Rayford was referring to or the basis for his purported
Trevino/Martinez claim in his first amended federal habeas petition, it ordered
Rayford to submit an additional supplemental brief to specifically identify
“each claim of ineffective assistance of trial counsel that is unexhausted
because of the ineffective assistance of your state habeas counsel,” as well as
to “state whether the claim was within the scope of your pleadings before this
Court in 2011, and if so, cite to the specific language in your pleadings that
referenced such claim.” It also ordered Rayford to “[f]ully identify and describe
all evidence in support of any” such claim and, with respect to each claim or
item of evidence described, to state whether it had been presented to the state
court, “whether state habeas counsel was ineffective in failing to present such
claim and/or evidence to the state court,” and to fully support each assertion of
ineffective assistance.
      Rayford filed a 20-page additional brief in response to the district court’s
order. Approximately three-quarters of the document was composed of block
quotes   from   his   objections   to   the   magistrate     judge’s   report   and
recommendation. At no point did he cite to his first amended federal habeas
petition as the basis for his purported Trevino/Martinez claim. After
considering this additional brief, the district court entered an order on
September 22, 2014, declining to stay the federal habeas proceeding,
overruling Rayford’s objections to the magistrate judge’s findings and
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                                     No. 14-70031
recommendations after de novo review, accepting those findings and
recommendations once more, and denying Rayford’s petition for writ of habeas
corpus.
      The district court first examined Rayford’s additional brief to determine
the broadest possible formulation of Rayford’s purported Trevino/Martinez
claim: “Rayford claims that his trial counsel provided ineffective assistance by
failing to properly introduce his Parkland hospital, prison and jail medical
records as mitigating evidence in the punishment phase of his trial.” 24 The
district court found that Rayford’s newly formulated claim had not been
“clearly presented in his original or amended petition” but nevertheless
“appears to have been exhausted in the state court.” 25 Indeed, in his additional
brief, Rayford’s counsel acknowledged that his reformulated claim “at first
glance . . . appears to present nothing new. The records Rayford now points to
were before the state court, and thus this Court . . . .” 26
      Rayford argued that his state habeas counsel rendered ineffective
assistance with respect to the Parkland Hospital medical records by seeking to
introduce them “for the specific purpose of showing remorse, and the other
records for the purpose of showing Rayford’s 1986 plea was involuntary; lost
by the wayside was the far more significant deficiency. This claim, then, that
was once procedurally barred, is now, in the wake of Trevino, ripe for
consideration.” 27 The district court stated that “[t]he ‘far more significant
deficiency’ appears to refer to the ways that the records could support an
‘abandonment rage’ theory.” 28 In essence, the district court found, Rayford was



      24  Rayford v. Stephens, No. 3:06-CV-0978-B, 2014 WL 4744632, at *2 (N.D. Tex. Sept.
22, 2014) (emphasis in original, citations to record omitted).
       25 Id. at *3.
       26 Id. (quoting Rayford’s additional brief).
       27 Id. (quoting Rayford’s additional brief).
       28 Id.

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                                   No. 14-70031
relying on the same records at issue in the state habeas proceeding but now
arguing that those records are relevant for broader purposes. 29 Stated
differently:
               Rayford’s most recent formulation of the claim
               attempts to distinguish the claims presented by state
               habeas counsel in two respects: (1) the Parkland
               hospital records should have been introduced at trial
               for a broader mitigation purpose than merely
               “remorse” and (2) the prison/jail medical records
               should also have been introduced at trial as mitigating
               evidence. Although this may distinguish the claim
               from what Rayford presents to this Court in his
               amended petition, it does not sufficiently differ from
               what was presented to the state court to render the
               claim unexhausted. 30

      Citing footnotes 11 and 12 of its original order denying habeas relief,
discussed supra, the district court noted that Rayford had failed to identify this
claim in his first amended federal habeas petition, which meant he had waived
it. The district court found that Rayford had only claimed in his first amended
federal habeas petition that the Parkland Hospital medical records should
have been admitted into evidence to show remorse. 31
      The district court then pointed out that Rayford’s state habeas counsel
had argued that the Parkland Hospital medical records showed not only
remorse but also “acceptance of responsibility,” “provocation” (regarding Gail
Rayford’s obtaining a shotgun and shooting Rayford five years before her
murder), “guilt, shame, depression, . . . and self-perceived need to be
punished.” 32




      29 Id.
      30 Id.
      31 Id. at *5.
      32 Id. (emphasis removed).

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                                          No. 14-70031
                These allegations were made in Rayford’s fourth
                habeas-corpus claim in state court and incorporated by
                reference into his fifth claim in state court, in which
                he specifically alleged that trial counsel was
                ineffective for failing to lay a proper foundation for the
                admission of these records. Therefore, Rayford’s
                argument that state habeas counsel failed to argue a
                “broader” mitigation purpose to these records than
                remorse was incorrect. Although these purposes were
                drawn from the same records presented to both the
                federal and state courts, it appears to have been
                federal habeas counsel-not state habeas counsel-that
                did not specify in the controlling pleadings such a
                broader mitigation purpose for these records. 33

      Thus, the district court concluded, Rayford had failed to preserve any
federal habeas claim pertaining to the Parkland Hospital medical records
beyond their use to show remorse, and even if he had asserted the much
broader formulation of that claim in federal court, it was already exhausted in
state court, precluding any Trevino/Martinez claim on that ground.
      With respect to Rayford’s claim that the prison (TDCJ) and jail records
should have been introduced as mitigating evidence, the district court again
noted that Rayford had not asserted a claim in his first amended federal
habeas petition based on the failure to introduce those records, as footnotes 11
and 12 of the district court’s prior opinion made clear, and the district court
refused to allow him to amend. Even if Rayford had asserted a broader claim
concerning the prison and jail records in his first amended federal habeas
petition, Rayford’s state habeas counsel had already exhausted the claim in
the state habeas proceeding. 34




      33   Id. (citation to record omitted).
      34   2014 WL 4744632, at *6-7.
                                               24
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                                         No. 14-70031
      Specifically, his state habeas counsel had argued that evidence of his
1986 conviction should not have been admitted at all, but assuming it was, the
additional records (including the Dallas County jail records) should have been
admitted to show Rayford’s “history of mental impairment and personality
disorders that had their origin in early development. This information was
necessary, crucial and valid mitigating evidence . . . .” 35 Although Rayford
argued in the state habeas proceeding that the records themselves should have
been admitted, his federal habeas counsel never raised that argument in his
first amended federal habeas petition. 36 Thus, not only had he waived the
broader argument in federal court, but the state court had actually addressed
it, again precluding a Martinez/Trevino claim.
      Considering only the claim actually stated in the first amended federal
habeas petition, the district court once again rejected it on the merits, finding
that the state habeas court’s determination concerning the introduction of the
Parkland Medical records for the purpose of showing remorse was entitled to
deference under applicable law. The district court again adopted the
magistrate judge’s findings and recommendations, denied Rayford’s petition
for a writ of habeas corpus, and denied a COA.
      Rayford filed this application for COA, arguing (1) that reasonable
jurists could debate whether his purported Martinez/Trevino claim had been
exhausted in state court and (2) that reasonable jurists could debate whether
his claim of ineffective assistance of counsel was unreasonably resolved by the
state court.




      35   Id. at *6 (quoting state habeas petition).
      36   Id.
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                                       No. 14-70031
                                             II.
       “Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from . . . the final order in a
habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court.” 37 We may issue a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 38 That
“includes showing that reasonable jurists could debate whether (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.’” 39
                                             III.
       Rayford     agrees     with     the    district   court’s    formulation       of   his
Trevino/Martinez claim: “that his trial counsel provided ineffective assistance
by failing to properly introduce his Parkland hospital, prison and jail medical
records as mitigating evidence in the punishment phase of his trial.” 40


       37 28 U.S.C. § 2253(c)(1)(A).
       38 Id. § 2253(c)(2).
       39 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 (1983) (some internal quotation marks omitted)).
       40 Remarkably, despite quoting the district court’s formulation of his claim with

approval in his brief before this court, Rayford’s counsel argued for the first time at oral
argument that his state trial counsel erred not by failing to introduce certain evidence
altogether, but by failing to present and argue the evidence (including evidence actually
introduced at trial) effectively. Specifically, he contended that Rayford’s state trial counsel
should have made a distinct presentation of the evidence on the mitigation issue (special
issue number 2), but instead had focused on the evidence’s value to show lack of future
dangerousness (special issue number 1).
       “Arguments raised for the first time at oral argument are deemed waived.” Sigala v.
Quarterman, 338 F. App’x 388, 396 (5th Cir. 2009) (citing Walker Int’l Holdings Ltd. v.
Republic of Congo, 395 F.3d 229, 232 (5th Cir. 2004)). The district court gave Rayford several
opportunities to state his claim clearly, and this argument appears nowhere in any pleading
before the district court or this court. Accordingly, we deem the claim waived.
       Even if Rayford had timely asserted the claim, the record suggests it would not have
changed the outcome. The argument assumes that evidence in the punishment phase must
relate either to the future dangerousness issue or the mitigation issue, but the jury at
Rayford’s trial was instructed to “consider all evidence admitted at the guilt or innocence
                                             26
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                                        No. 14-70031
       To determine whether a COA should issue, we must “view[] the
petitioner's arguments through the lens of the deferential scheme laid out in”
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 41
              (d) An application for a writ of habeas corpus on behalf
              of a person in custody pursuant to the judgment of a
              State court shall not be granted with respect to any
              claim that was adjudicated on the merits in State court
              proceedings unless the adjudication of the claim—

                      (1) resulted in a decision that was contrary to, or
                      involved an unreasonable application of, clearly
                      established Federal law, as determined by the
                      Supreme Court of the United States; or

                      (2) resulted in a decision that was based on an
                      unreasonable determination of the facts in light
                      of the evidence presented in the State court
                      proceeding. 42

“This is a difficult to meet and highly deferential standard for evaluating state-
court rulings, which demands that state-court rulings be given the benefit of
the doubt. The petitioner carries the burden of proof.” 43 Under § 2254(d), the
phrase “adjudicated on the merits” (formerly termed a “resolution on the
merits”) “is a term of art in the habeas context that refers not to the quality of
a court’s review of claims, but rather to the court’s disposition of the case—
whether substantive or procedural.” 44 The statute is quite strict, and its
protection of state court actions broad:


stage and the punishment stage of this trial, including evidence of the defendant’s
background and character and the circumstances of the offense that militate for or mitigate
against the imposition of the death penalty.” Because Rayford’s counsel conceded that the
evidence was introduced for the future dangerousness issue, the jury was required to consider
it for the mitigation issue as well.
         41 Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000).
         42 28 U.S.C. § 2254(d).
         43 Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citations and internal quotations

omitted).
         44 Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).

                                              27
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                                    No. 14-70031
            By its terms § 2254(d) bars relitigation of any claim
            “adjudicated on the merits” in state court, subject only
            to the exceptions in §§ 2254(d)(1) and (2). There is no
            text in the statute requiring a statement of reasons.
            The statute refers only to a “decision,” which resulted
            from an “adjudication.” As every Court of Appeals to
            consider the issue has recognized, determining
            whether a state court’s decision resulted from an
            unreasonable legal or factual conclusion does not
            require that there be an opinion from the state court
            explaining the state court’s reasoning. And as this
            Court has observed, a state court need not cite or even
            be aware of our cases under § 2254(d). Where a state
            court’s decision is unaccompanied by an explanation,
            the habeas petitioner’s burden still must be met by
            showing there was no reasonable basis for the state
            court to deny relief. This is so whether or not the state
            court reveals which of the elements in a multipart
            claim it found insufficient, for § 2254(d) applies when
            a “claim,” not a component of one, has been
            adjudicated. 45

  As the Supreme Court explained in Martinez:
            Federal habeas courts reviewing the constitutionality
            of a state prisoner’s conviction and sentence are guided
            by rules designed to ensure that state-court judgments
            are accorded the finality and respect necessary to
            preserve the integrity of legal proceedings within our
            system of federalism. These rules include the doctrine
            of procedural default, under which 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. A state court’s invocation of a
            procedural rule to deny a prisoner’s claims 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. The

  45   Harrington v. Richter, 562 U.S. 86, 98 (2011) (citations omitted).
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                                       No. 14-70031
              doctrine barring procedurally defaulted claims from
              being heard is not without exceptions. A prisoner may
              obtain federal review of a defaulted claim by showing
              cause for the default and prejudice from a violation of
              federal law. 46

       Under Martinez and Trevino, one such exception is that “a habeas
petitioner may establish cause to excuse a procedural default as to an IATC
claim by showing (1) that his state habeas counsel was constitutionally
deficient in failing to include the claim in his first state habeas application,
and (2) that the underlying IATC claim is ‘substantial,’ meaning that it has
‘some merit.’” 47
       Rayford’s claim here is that his state habeas counsel provided ineffective
assistance by failing to assert a claim with respect to the introduction of the
Parkland Hospital medical records, prison (TDCJ) records, and jail records for
broad mitigation purposes. “Claims of ineffective assistance of counsel involve
mixed questions of law and fact and are governed by § 2254(d)(1).” 48 We apply
the two-step test set out in Strickland v. Washington, 466 U.S. 668 (1984),
which first requires a defendant to “show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” 49 Representation is deficient when it falls “below an
objective standard of reasonableness.” 50 “[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 overcome the presumption



       46 132 S. Ct. at 1316.
       47 Newbury, 756 F.3d at 868 (citing Martinez, 132 S. Ct. at 1318).
       48 Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010) (citing Briseno v. Cockrell, 274

F.3d 204, 206-08 (5th Cir. 2001)).
       49 Id. at 687.
       50 Id. at 688.

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                                      No. 14-70031
that, under the circumstances, the challenged action might be considered
sound trial strategy.” 51 In the second step, the defendant is required to prove
that his attorney’s deficient performance prejudiced his defense. 52
       In the COA context, however, “[o]ur review is also circumscribed by
AEDPA’s deferential standard, however, making our inquiry different from
asking whether defense counsel’s performance fell below Strickland’s
standard. The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” 53 “Informed strategic decisions of
counsel are given a heavy measure of deference and will not be second guessed.
Moreover, a tactical decision not to pursue and present potential mitigating
evidence on the grounds that it is double-edged in nature is objectively
reasonable, and therefore does not amount to deficient performance.” 54
                                            IV.
       A.     Rayford Has Waived Any Claim Not Asserted in His First
              Amended Federal Habeas Petition, His Preserved Claim
              Was Exhausted in the State Habeas Proceeding, And No
              Reasonable Jurist Could Debate The Underlying Claim.

       As the district court repeatedly noted, Rayford failed to assert most of
his claim relating to his state trial counsel’s failure to introduce the Parkland
Hospital medical records, prison records, and jail records in his first amended
federal habeas petition. As set out above, the only ineffective assistance of
counsel claim in Rayford’s first amended federal habeas petition concerning
the introduction of records was that his state trial attorney failed to get the
Parkland Hospital medical records admitted into evidence for the purpose of


       51Id. (internal quotation marks omitted).
       52Id.
      53 Clark v. Thaler, 673 F.3d 410, 426 (5th Cir. 2012) (footnotes and internal quotation

marks omitted).
      54 Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999) (internal citations and quotation

marks omitted).
                                             30
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                                   No. 14-70031
showing “crucial mitigation evidence of remorse” following the 1986 murder of
his wife, as well as perhaps showing provocation because his wife had shot
Rayford with a shotgun approximately five years before her murder. The first
amended federal habeas petition did not claim that Rayford’s trial counsel
provided ineffective assistance by failing to introduce any other records, or by
failing to introduce the Parkland Hospital medical records for any purpose
other than to show remorse or provocation. Rayford only asserted those
broader claims for the first time in his objections to the magistrate judge’s
findings and recommendation.
      Rayford’s present counsel apparently acknowledges that the broad claim
asserted   in   the   objections   to   the   magistrate     judge’s   findings   and
recommendations was indeed new and exceeded the scope of the first amended
federal habeas petition. He noted that the magistrate judge’s findings and
recommendations concerned “Petitioner’s previous federal habeas counsel’s
claim as to the Parkland records and their evidence of Petitioner’s remorse.”
He stated that Rayford’s previous federal habeas counsel “discovered
additional mitigating records supporting his claim that his trial counsel was
ineffective for failing to introduce mitigating evidence” but decided not to bring
the claim in the federal habeas petition because his state habeas counsel had
not introduced the documents, and Martinez and Trevino had not yet been
decided. (As we explain below, even under the broadest possible interpretation
of his Martinez/Trevino claim, he has never pointed to any documents that the
state habeas court did not already consider.)
      Thus, it is clear that Rayford’s counsel did not properly raise his
purported Martinez/Trevino claim in his first amended federal habeas petition.
Ordinarily, failure to assert a claim until objections to a magistrate judge’s
findings and recommendations waives that claim because such a claim was


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                                       No. 14-70031
“not properly before the district court.” 55 “The district court may construe an
issue raised for the first time in an objection to a magistrate judge’s report and
recommendation as a motion to amend complaint,” which we review for abuse
of discretion. 56 We have found an abuse of discretion where a litigant
proceeding pro se had actually demonstrated grounds for relief in the otherwise
late claim and where the litigant was actually entitled to an amendment as of
right. 57
       Rayford has been represented by counsel throughout the course of this
federal habeas proceeding, and his previous counsel made the conscious
decision not to assert the claim in the federal habeas petition—unlike, notably,
the federal habeas counsel in Martinez, who asserted the otherwise
procedurally defaulted claim in the federal habeas petition and ultimately got
the law changed. 58 Accordingly, we cannot say the district court abused its
discretion in refusing to allow Rayford to amend his first amended federal
habeas petition to assert a much broader claim.
       In    this   application      for   COA      concerning       Rayford’s     purported
Martinez/Trevino claim, we must determine whether Rayford’s state habeas
counsel provided ineffective assistance by failing to claim in that proceeding
that Rayford’s trial counsel provided ineffective assistance with respect to the
introduction of evidence—specifically, the Parkland Hospital medical records
for purposes of showing Rayford’s remorse. As we set out in Part I.B, supra,
Rayford’s state habeas counsel argued that Rayford was “denied his right to



       55 United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); see also United States
v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996); Morrison v. Johnson, 214 F.3d 1350, 2000 WL
634644 (5th Cir. 2000) (table decision).
       56 Riascos, 76 F.3d at 94.
       57 Id. (pro se litigant with viable, though late, claim); Morrison, 214 F.3d at 1350

(finding that the district court abused its discretion because the petitioner was entitled to an
appeal as of right because the State had not yet filed a responsive pleading).
       58 132 S. Ct. at 1314-15.

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                                 No. 14-70031
individualized sentencing” under the Eighth and Fourteenth Amendments
“when the trial court sustained the objection by the prosecution of crucial
mitigating evidence, the Parkland Hospital medical records. These records or
evidence of Rayford’s remorse and acceptance of responsibility.”
      His state habeas counsel claimed that “because the one hundred and
nineteen (119) pages of 1986 Parkland Hospital medical records were not in
evidence, defense counsel was forced to rely on the inaccurate and incomplete
testimony of Officer Hitt, a state punishment phase witness, and Defense
Exhibit 3 [Rayford’s TDCJ records] to argue remorse as a mitigator . . . .” Dr.
Kessner averred by affidavit in the state habeas proceeding that if she had
been able to testify about the contents of certain Parkland Hospital records,
she “would have testified that the documentation showed that Mr. Rayford was
remorseful for the 1986 killing of Gail Rayford, and that his severe, self-
inflicted injuries were evidence of his guilt, shame, depression, remorse, and
self-perceived need to be punished.” His state habeas counsel also argued that
his state trial counsel provided ineffective assistance for failing to lay the
proper predicate to have the Parkland Hospital medical records introduced.
      As also set out in Part I.B, supra, the state habeas court rejected all of
these arguments on both procedural and, in the alternative, substantive
grounds. Rayford’s preserved claim concerning the introduction of the
Parkland Hospital medical records to show remorse therefore is not
procedurally defaulted, and the Martinez/Trevino rule does not apply. Rather,
the claim was “adjudicated on the merits” for purposes of § 2254(d). Therefore,
under AEDPA, we may only grant habeas relief if Rayford shows that the state
habeas court’s adjudication of the claim:
            (1) resulted in a decision that was contrary to, or
            involved an unreasonable application of, clearly
            established Federal law, as determined by the
            Supreme Court of the United States; or
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                                       No. 14-70031
              (2) resulted in a decision that was based on an
              unreasonable determination of the facts in light of the
              evidence presented in the State court proceeding. 59

       No reasonable jurist would debate the district court’s determination of
Rayford’s preserved constitutional claim concerning the Parkland Hospital
medical records. He has not pointed to a single material error by the state
habeas court on any factual or legal determination, much less anything in the
decision that was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States.” The cases Rayford cites in his brief virtually all concern a trial
counsel’s failure to conduct an adequate investigation on mitigating evidence
or to introduce any mitigating evidence. 60
       In this appeal, although Rayford’s brief suggests that his trial counsel’s
investigation was somehow deficient, it is beyond question that his trial
counsel did conduct an investigation and did present mitigating evidence.
Rayford has never asserted there is any additional mitigating evidence which
might have been discovered with further investigation. The crux of his
argument is instead that his trial counsel failed to introduce documents which
he had already discovered in his investigation.
       Concerning the Parkland Hospital medical records specifically, the state
habeas court determined that the jury heard the contents of the records in a
more intelligible form through the testimony of Dr. Kessner and Officer Hitt,



       59 28 U.S.C. § 2254(d).
       60 See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003) (counsel failed to conduct an
investigation beyond a pre-sentence investigation report and Department of Social Services
records, despite facts in those records pointing to further mitigating evidence, and the record
suggested that “that their failure to investigate thoroughly resulted from inattention, not
reasoned strategic judgment”); Rompilla v. Beard, 545 U.S. 374 (2005) (counsel failed to
examine the file on petitioner’s prior rape and assault conviction, despite the fact that the
state intended to use the prior conviction to seek the death penalty).
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                                  No. 14-70031
as well as the TDCJ records introduced as Defense Exhibit 3. Rayford has not
shown that the state habeas court’s factual determination was unreasonable
based on the state habeas record. Rayford also has not cited to any clearly
established Supreme Court case law which would warrant relief under these
circumstances, where the jury actually heard the evidence at issue in an
arguably better form. We can find no basis in law or fact for concluding that
the state habeas court erred in its determination under AEDPA’s deferential
standard.
      In short, reasonable jurists could not debate the district court’s
determination of Rayford’s preserved constitutional claim concerning the use
of the Parkland Hospital medical records to show remorse. Accordingly, we
deny a COA.
      B.    In The Alternative, Even If Rayford Had Preserved His
            Full Claim, No Reasonable Jurist Could Debate The
            District Court’s Determination That Rayford Is Not
            Entitled To Habeas Relief.

      In the alternative, even if Rayford had not waived his full purported
Martinez/Trevino claim, no reasonable jurist could debate the district court’s
determination that he is not entitled to habeas relief. To reiterate, Rayford
agrees with the district court’s formulation of his claim: “that his trial counsel
provided ineffective assistance by failing to properly introduce his Parkland
hospital, prison and jail medical records as mitigating evidence in the
punishment phase of his trial.” As the district court explained, even though
this claim was not presented in his first amended federal habeas petition, it
was unquestionably adjudicated in his state habeas proceeding.
      Specifically, as set out more fully in Part I.B, supra, his habeas counsel
argued that the Parkland Hospital medical records should have been
introduced not only to show remorse, but also to show “acceptance of
responsibility,” provocation, “guilt, shame, depression . . . , and self-perceived
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                                No. 14-70031
need to be punished.” Thus, his state habeas counsel already argued that the
medical records should have been introduced for broad mitigation purposes,
just as Rayford argues now.
      Rayford’s state habeas counsel also argued that once evidence of the 1986
murder had been introduced, his state trial counsel should have introduced his
Dallas County jail records and other records for general mitigation purposes to
show his history of mental illness. He argued that the evidence showed that
Rayford did not have antisocial personality disorder but rather had “a
continuing history of mental illness and personality disorder that pre-dated
the 1986 killing of Gail Rayford, that continues to the present day,” including
“abandonment rage.” In short, state habeas counsel argued, “[t]his information
was necessary, crucial and valid mitigating evidence that was not presented to
the jury for consideration when deciding between life and death.”
      The state habeas court rejected the introduction of the Parkland
Hospital medical records and the jail records for all purposes on both
procedural and, in the alternative, substantive grounds. It also noted that the
TDCJ (prison) records had already been introduced as Defense Exhibit 3.
Among the other findings summarized in Part I.B, supra, the court found that
the jury had heard the information from the Parkland Hospital medical records
in a more intelligible form through the testimony of Dr. Kessner, Officer Hitt,
and the TDCJ records. The state habeas court found that Rayford had refused
to let his counsel argue the “abandonment rage” theory and that, in any event,
the “abandonment rage” evidence would not be mitigating.
      The fundamental problem with Rayford’s purported Martinez/Trevino
claim is that it is not actually a claim under those cases. Despite ample
opportunities to do so before the district court and now in this court, Rayford
has never pointed to a single document or theory of mitigation that was not
already presented to the state habeas court and adjudicated on the merits
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                                  No. 14-70031
there. The state habeas court fully considered his claim that his trial counsel
had provided ineffective assistance by failing to introduce a number of records,
including the records at issue here, for broad mitigation purposes. Because the
full claim was exhausted in the state habeas proceeding, the Martinez/Trevino
rule does not apply.
      Instead, we must examine the state court’s determination under the
highly deferential AEDPA framework and must conclude that no reasonable
jurist would debate the underlying constitutional claim concerning the
introduction of these records for broad mitigation purposes. As explained in
Part IV.A, supra, the crux of Rayford’s claim is not that his trial counsel failed
to conduct a reasonable investigation but that his trial counsel failed to
introduce certain already discovered records at trial for mitigation purposes.
      First, as discussed above, the jury already heard the contents of the
Parkland Hospital medical records in a more intelligible form, and no
reasonable jurist would debate the district court’s determination on that point.
The presence of supposedly broader mitigation purposes at issue in Rayford’s
full purported claim does not change the fact that the jury already heard the
substance of those records. Again, Rayford has not shown that the state habeas
court made unreasonable fact findings or violated clearly established Supreme
Court case law in its decision concerning these medical records.
      Second, TDCJ records were actually introduced as Defense Exhibit 3,
and Rayford has never explained what additional TDCJ evidence his trial
counsel should have admitted. Indeed, he has not set out with specificity any
error, much less the type of extraordinary error required to satisfy AEDPA’s
highly deferential standard. No reasonable jurist would debate the district
court’s determination with respect to these documents.
      Third and finally, Rayford has not detailed in this appeal what
mitigating evidence might be found in the Dallas County jail records.
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                                     No. 14-70031
Examining his briefing in other courts, it seems he would rely on those records
for evidence of his mental health, particularly in connection with the
“abandonment rage” theory which Rayford himself requested that his trial
counsel not pursue. However, has never specified the contents of the jail
records, or stated precisely what he wishes to show with them. In short, he has
failed to allege specifically or coherently any constitutional error with respect
to the jail records.
       Our examination of the state habeas court’s decision concerning those
documents and the mental health/“abandonment rage” theory does not reveal
any error under AEDPA’s highly deferential standard. As the state habeas
court reasoned, the “abandonment rage” theory would essentially be double-
edged. Indeed, we note that while the theory would offer a reason for Rayford’s
violent rage, it would simultaneously undercut his argument on the future
dangerousness issue. As noted above, “a tactical decision not to pursue and
present potential mitigating evidence on the grounds that it is double-edged in
nature is objectively reasonable, and therefore does not amount to deficient
performance.” 61 Given Rayford’s failure to specify any specific error with
respect to the jail records and the objectively reasonable nature of his trial
counsel’s decision not to pursue the “abandonment rage” theory, no reasonable
jurist would debate Rayford’s underlying constitutional claim on these records
under AEDPA.
       In sum, we must conclude that even if Rayford had not waived his broad
purported Martinez/Trevino claim, no reasonable jurist would debate the
district court’s determination that the claim was exhausted in the state habeas
court and did not warrant habeas relief under AEDPA. Accordingly, we deny a
COA.


       61   Lamb, 179 F.3d at 358.
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                                  No. 14-70031
                                       V.
      For the reasons set out above, we conclude that, by failing to raise it in
his first amended federal habeas petition, Rayford waived any claim of
ineffective assistance of counsel based on his state trial counsel’s failure to
introduce mitigating evidence other than his claim concerning the introduction
of Parkland Hospital medical records to show remorse. Even if he had
preserved his full purported Martinez/Trevino claim, however, reasonable
jurists could not debate the district court’s determination that the entire claim
had been exhausted in his state habeas proceeding. Thus, his claim does not
fall under the Martinez/Trevino rule, which applies only when a claim is
procedurally barred because state habeas counsel failed to raise it in the state
habeas proceeding. Finally, reasonable jurists could not debate the underlying
constitutional claim.
      Accordingly, we DENY a COA.




                                       39
