                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-70024


GILBERTO REYES,

                     Petitioner - Appellant,

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                     Respondent - Appellee.



          Appeal from the United States District Court
          for the Northern District of Texas, Lubbock
                     USDC No. 5:03-CV-00186


Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.

PER CURIAM:*

     Petitioner Gilberto Reyes was convicted in Texas of capital

murder and sentenced to death.   Reyes now seeks a certificate of

appealability (“COA”) from this Court to appeal the district

court’s denial of his petition for habeas corpus relief.               He

contends that reasonable jurists could debate that his Sixth and

Fourteenth Amendment rights to the effective assistance of counsel

were not violated by his trial counsel’s failure to investigate and



     *
      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this opinion should not be published and is not precedent except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.
to present significant mitigating evidence, including, but not

limited to, evidence that he sustained substantial abuse as a

child.   Because the district court’s conclusion that Reyes cannot

make a substantial showing of the denial of a constitutional right

is not debatable among reasonable jurists, we DENY his application

for a COA.   We also find that the district court did not abuse its

discretion   by   not   holding    an    evidentiary   hearing   on   Reyes’s

ineffective assistance of counsel (“IAC”) claim.

                              I. BACKGROUND

     A summary of the facts as recounted by the Texas Court of

Criminal Appeals and adopted by the district court will suffice:

     Reyes dated Yvette Barraz for approximately eight months

before their relationship ended in January 1998.              At around 6:00

p.m. on March 11, 1998, Barraz left her parents’ house for her job

as a waitress at Leal’s Restaurant (“Leal’s”) in Muleshoe, Texas.

At trial, Yolanda Jaramillo, Barraz’s co-worker, testified that

Barraz left Leal’s before she did, and that Barraz’s silver/gray,

1996 Mitsubishi Eclipse was not in the parking lot when she left

the restaurant.

     Reyes   arrived    at   his   cousin’s    home    in   Pecos,   Texas   at

approximately 11:45 p.m. on March 11, 1998.             He asked Natividad

Ovalle, Jr., his cousin’s husband, how to get to Ojinaga, Mexico.

Ovalle testified that when Reyes left the home, he observed Reyes

drive away in a small gray car.



                                        -2-
     Between 3:30 a.m. and 4:00 a.m. on March 12, officers at the

border check point in Presidio, Texas observed Reyes walking on the

highway heading towards Mexico.         The officers stopped Reyes and

asked him to empty his pockets.     Among Reyes’s possessions were a

couple of sets of keys, a large amount of currency in one-dollar

bills and five-dollar bills, and a couple of handfuls of change.

Reyes explained to the officers that one of the keys was the key to

his girlfriend’s car.   Once a records check revealed that Reyes was

not involved in a string of burglaries in Presidio that had the

officers on heightened alert, Reyes was permitted to cross the

bridge into Mexico.

     On March 12, because Barraz failed to return home, her parents

called the police.    Upon receiving the call, police officers went

to the parking lot at Leal’s where they discovered blood and loose

change on the ground.

     On March 13, 1998, the Presidio County Sheriff’s Office

received a teletype informing them that Reyes was connected to a

missing person and that it was possible that he used a gray 1996

Mitsubishi to get to Presidio.    Presidio Sheriff’s Officers found

Barraz’s car parked behind a store in Presidio located about a half

of a mile from the border.        They found Barraz’s body in the

hatchback area of the vehicle under some articles of clothing. Her

pants and underwear were pulled down to her knees, and she had

multiple head wounds and a laceration on one of the fingers of her

left hand.   Officers found a knife on the back floorboard of the

                                  -3-
car and a claw hammer on the passenger side between the seat and

the edge of the door rail.   Sergeant Dusty McCord, a Sergeant with

the Texas Ranger Division of the Department of Public Safety,

testified that he saw bloodstains on the passenger-side seat belt

and blood pooling in the hatchback area and on the floorboard

behind the passenger seat.

     Reyes was arrested in Portales, New Mexico, on June 7, 1998.

Among his possessions were keys that matched the locks to Barraz’s

residence and vehicle.

     Javier Flores, a forensic serologist for the Texas Department

of Public Safety Laboratory, performed DNA testing on the evidence

collected from Barraz’s car and the parking lot at Leal’s.   Flores

testified that Barraz’s DNA matched the bloodstains in the parking

lot at Leal’s, inside the vehicle, and on the claw hammer.   Flores

also testified that Reyes’s DNA matched a semen stain on Barraz’s

underwear with an accuracy level of one in less than 5.7 billion.

     Glen Groben, the deputy medical examiner who performed an

autopsy on Barraz, testified that Barraz had six separate blunt

force injury wounds to her head that were consistent with being

struck by a claw hammer.      Although Groben found that Barraz’s

death was caused by blunt force trauma to the head, he also noted

that there was evidence of strangulation.   Groben determined that

Barraz was alive when she was strangled and beaten, and that she

had been sexually assaulted at or near the time of death.    Based

on a crime scene photograph of Leal’s, Groben testified that while

                                -4-
it appeared that Barraz was initially injured in the restaurant’s

parking lot, there was not enough blood in the parking lot to

suggest that she died there.

     The court appointed counsel to represent Reyes at trial and

during the punishment proceeding.         On January 31, 2000, a jury

found Reyes guilty of murdering Barraz while in the course of

kidnaping her, in violation of TEX. PENAL CODE § 19.03(a)(2).

     During the punishment stage, the prosecution called eight

witnesses.   Evidence from these witnesses demonstrated that Reyes

was charged with driving while intoxicated and aggravated assault

with a deadly weapon on February 9, 1998, after an individual who

observed someone shoot at a car with a rifle called the Muleshoe

police. Reyes was also observed chasing Barraz and her sister into

their parents’ home.   The investigating officer found Reyes with a

rifle in his truck and bullets in his pocket.

     Evidence also demonstrated that Reyes was a member of the 8th

Street Posse, a “social club” that sometimes engaged in fights with

another “social club.”    Reyes was charged with aggravated assault

and placed on deferred adjudication supervision for driving a truck

over a curb and into Robert Rodriguez, a member of a “social club”

in Muleshoe.    Because he was subsequently charged with driving

while intoxicated, Reyes’s deferred adjudication was revoked, and

he was sent to a state, military-style boot camp program.

     Finally,   Dr.   Gripon,   a   psychiatrist,   testified   that   he

believed Reyes to be a continuing threat to society because Reyes’s

                                    -5-
behavior had increased in its progression towards violence, he had

been    involved    in    gang-related       activity,   and    he   had   abused

substances.

       During the punishment phase, Reyes’s trial counsel presented

nine witnesses: Hector Arzola, Margie Lopez, Don Carter, Nicky

Chavez, Maria Reyes, Nora Gonzales, Chris Ramos, Jesse Reyes, and

Dr. Walter Quijano. Arzola, Lopez, and Carter were called to rebut

evidence against Petitioner regarding an aggravated assault charge.

Maria Reyes and Jesse Reyes testified that Petitioner supported his

family    after    his    father   died,   Barraz    abused    Petitioner,   and

Petitioner often took care of Barraz’s daughter.                 Nicky Chavez,

Chris Ramos, and Nora Gonzales testified that Petitioner was a hard

worker and a good employee.           Lastly, Dr. Quijano testified that

Reyes would not be a continuing threat or a future danger to

society.    Following the punishment hearing, the jury answered the

punishment special issue regarding Reyes’s future dangerousness

affirmatively,      and    it   answered     the   punishment    special   issue

regarding mitigating evidence negatively.             See TEX. CODE CRIM. PROC.

art. 37.071 § 2.          Consequently, on February 2, the trial court

sentenced Reyes to death.

       The court appointed an attorney to represent Reyes on direct

appeal.    The Texas Court of Criminal Appeals denied relief and

affirmed Reyes’s conviction and sentence.                Reyes v. State, 84

S.W.3d 633 (Tex. Crim. App. 2002).


                                       -6-
     While Reyes did not file a petition for a writ of certiorari

to the United States Supreme Court, during the pendency of his

direct appeal, he filed an application for a writ of habeas corpus

with the state habeas court.         Reyes’s new court appointed attorney

argued that, inter alia, Reyes was deprived of his Sixth and

Fourteenth Amendment rights because his trial counsel failed to

adequately investigate and present mitigating evidence at trial.

On October 9, 2002, the Texas Court of Criminal Appeals adopted the

trial court’s recommendation to deny relief.           Ex parte Reyes, No.

52,801-01 (Tex. Crim. App. Oct. 9, 2002).

     Reyes filed his original petition for a writ of habeas corpus

in federal district court on September 19, 2003.             He argued, inter

alia,    that   he   was   denied   effective   assistance    of   counsel   as

guaranteed by the Sixth and Fourteenth Amendments because trial

counsel failed to investigate and/or present mitigating evidence at

trial.

     In the district court, Reyes presented affidavits from two

investigators, two attorneys, and four witnesses who testified in

the state habeas court. The district court acknowledged that those

affidavits include the following information which Reyes claimed

should have been presented as mitigating evidence:

     Michael Ward, a licensed private investigator hired by state

habeas counsel to assist in the investigation for Reyes’s trial,

stated that he contacted Vince Gonzales who relayed that Gonzales


                                      -7-
had been    contacted   by   trial   counsel   to   conduct    a   mitigation

investigation after trial had commenced.             He also corroborated

Gonzales’s statement that trial counsel worked the case alone.

     Alexander    Calhoun,     an    attorney,      stated    that   in   his

professional opinion an attorney in a capital murder trial is

derelict in his duties if he waits until after trial has started to

begin conducting a mitigation investigation.

     Nicky Chavez stated that although she testified at trial, she

was not contacted until after trial started.                 She stated that

neither trial counsel nor the investigator discussed her testimony

with her before she testified. She also stated that Reyes’s mother

neglected her children, often left them unsupervised, did not clean

the family’s house, and did not ensure that the children were

clean.     Chavez also said that Reyes was one of her husband’s

trusted employees, Reyes provided for his family after his father’s

death, and that she did not believe that he would commit a violent

crime in the future.

     Lenny Pineda stated that Reyes provided for his family after

his father’s death, Reyes’s mother neglected her home and her

children, Reyes’s mother was emotionally abusive towards him, and

that Barraz “played around” on Reyes.      He also stated that while he

was present at the incident involving Robert Rodriguez, Reyes’s

brother was not present and that the incident did not involve

yelling or threats.     Lastly, Pineda affirmed that while he was told

that there was a subpoena for him, he was never contacted by anyone

                                     -8-
from Reyes’s defense team.

     Chris Ramos stated that although he testified at trial,

defense   counsel   spent   about   ten   minutes   with   him   before   he

testified and never asked him about Reyes’s family or childhood.

He observed Reyes’s mother neglect the home and the family, call

Reyes names, and otherwise emotionally abuse Reyes. He also stated

that Barraz and Reyes had a bad relationship, and that Barraz used

Reyes for money.

     Ismael Reyes, Reyes’s brother, stated that he was never

contacted by any of his brother’s attorneys.        He stated that he and

his brother began inhaling gasoline, freon, and paint almost daily

when they were fifteen years old.         Ismael Reyes stated that his

brother had been hit in the head several times and was abusing

cocaine daily right before murdering Barraz.         He also stated that

Barraz treated his brother poorly and had hit Reyes in the face.

     Lisa Milstein, a private investigator retained by Reyes’s

state habeas counsel, stated that she interviewed Reyes’s brothers,

Ismael and Marcos, Reyes’s mother, Maria, and Nicky Chavez.               She

also stated that she interviewed several jurors who stated that

they did not learn anything about Reyes or why he would have killed

Barraz.

     The district court denied habeas relief and refused to issue

a COA.    This application for a COA followed.       Reyes now asks this

Court to grant a COA on the issue of whether his trial counsel’s

failure to investigate and present mitigating evidence deprived him

                                    -9-
of effective assistance of counsel as guaranteed by the Sixth and

Fourteenth Amendments.        He also claims that the district court

erred in not holding an evidentiary hearing on his IAC claim.

                              II. DISCUSSION

A.   Standard of Review

     Reyes’s habeas claim is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,

110 Stat.   1214    (1996),   because   he   filed    his   original   habeas

petition under 28 U.S.C. § 2254 on September 19, 2003, after

AEDPA’s April 24, 1996 effective date.        See Fisher v. Johnson, 174

F.3d 710, 711 (5th Cir. 1999) (citing Lindh v. Murphy, 521 U.S.

320, 326 (1997)).    Under the AEDPA, a state habeas petitioner may

appeal a district court’s denial of habeas relief only if the

district court or the court of appeals first issues a COA.                28

U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (characterizing a COA as a “jurisdictional prerequisite”

without which “federal courts of appeals lack jurisdiction to rule

on the merits of appeals from habeas petitioners”); Neville v.

Dretke, 423 F.3d 474, 478 (5th Cir. 2005).           In deciding whether to

grant a COA,   the Supreme Court has emphasized that a “court of

appeals should limit its examination to a threshold inquiry into

the underlying merit of [the petitioner’s] claims.” Miller-El, 537

U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)).

“This threshold inquiry does not require full consideration of the


                                   -10-
factual or legal bases adduced in support of the claims.               In fact,

the statute forbids it.”     Id. at 336.

     We will only issue a COA “if the applicant has made a

substantial showing of the denial of a constitutional right.”               28

U.S.C. § 2253(c)(2). In order to satisfy this standard, Reyes must

establish that “jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists

could   conclude   the   issues   presented   are    adequate     to   deserve

encouragement to proceed further.”          Miller-El, 537 U.S. at 327

(citing Slack, 529 U.S. at 484).          “The COA determination under §

2253(c) requires an overview of the claims in the habeas petition

and a general assessment of their merits.”          Id. at 336.    While the

issuance of a COA “must not be pro forma or a matter of course,” a

petitioner meets the burden under § 2253(c) by “demonstrat[ing]

that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.”          Id. at 337-38.

“[A] claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has

received full consideration, that petitioner will not prevail.”

Id. at 338.   Lastly, any doubt as to whether a COA should issue in

a death-penalty case must be settled in favor of the petitioner.

Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004); Newton v.

Dretke, 371 F.3d 250, 254 (5th Cir. 2004).

     In deciding whether the district court’s denial of Reyes’s


                                   -11-
petition was debatable, we recognize the deferential standard of

review that the AEDPA requires a district court to apply when

considering a petition for habeas relief.               See Brown v. Dretke, 419

F.3d 365, 371 (5th Cir. 2005) (“With respect to the review of

factual   findings,    AEDPA    significantly       restricts      the        scope   of

federal habeas review.”); see also Miniel v. Cockrell, 339 F.3d

331, 336 (5th Cir. 2003).          Under the AEDPA, a federal court must

not grant a writ of habeas corpus “with respect to any claim that

was adjudicated on the merits in State court proceedings” unless

the court determines that the state court’s adjudication “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.”                28 U.S.C. § 2254(d)(1).

      A   state    court’s    decision     is   contrary     to    Supreme       Court

precedent if: (1) “the state court arrives at a conclusion opposite

to that reached by [the Supreme Court] on a question of law”; or

(2)   “the   state    court    confronts        facts    that     are    materially

indistinguishable from a relevant Supreme Court precedent and

arrives at a result opposite to [that of the Supreme Court].”

Williams v. Taylor, 529 U.S. 362, 405 (2000) (opinion of O’Connor,

J.) (interpreting and explaining the statutory language “contrary

to, or involved an unreasonable application of”). “A state court’s

decision is an unreasonable application of clearly established

federal   law     whenever   the   state    court   identifies          the    correct


                                     -12-
governing legal principle from the Supreme Court’s decisions but

applies that principle to the facts of the prisoner’s case in an

objectively unreasonable manner.”           Young v. Dretke, 356 F.3d 616,

623 (5th Cir. 2004) (internal quotation marks omitted); accord

Williams, 529 U.S. at 409.         “An unreasonable application may also

occur if ‘the state court either unreasonably extends a legal

principle from [Supreme Court] precedent to a new context where it

should not apply or unreasonably refuses to extend that principle

to a new context where it should apply.’”          Young, 356 F.3d at 623

(alteration in original) (quoting Williams, 529 U.S. at 407).1

     “[A] determination of a factual issue made by a State court

shall be presumed to be correct” unless the petitioner rebuts the

presumption   “by    clear   and    convincing    evidence.”    28   U.S.C.

§ 2254(e)(1).       In addition to explicit findings of fact, the

presumption of correctness also attaches to “unarticulated findings


     1
       Reyes contends that the district court should not have
afforded deference to the state habeas court’s determination
because the district court decided that the state court’s
application of law was objectively reasonable on different
grounds than those used by the state court. However, § 2254’s
deferential standard applies because “[t]he statute compels
federal courts to review for reasonableness the state court’s
ultimate decision, not every jot of its reasoning.” Santellan v.
Cockrell, 271 F.3d 190, 193 (5th Cir. 2001). In addition, “there
is no reason for a court deciding an ineffective assistance claim
...to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland v. Washington,
466 U.S. 668, 697 (1984). Hence, regardless of whether the state
habeas court had provided no reasons or unsatisfactory ones,
“authority under AEDPA is still limited to determining the
reasonableness of the ultimate decision.” Santellan, 271 F.3d at
193.

                                     -13-
which are necessary to the state court’s conclusions of mixed law

and fact.”   Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)

(quoting Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir.

2001)).   A writ of habeas corpus may issue if the state court’s

adjudication of a claim “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”   28 U.S.C. § 2254(d)(2).

B.   Evidentiary Hearing.

     Before we address whether reasonable jurists would find it

debatable that Reyes received effective assistance of counsel, we

consider Reyes’s assertion that the district court erred by not

holding an evidentiary hearing on his IAC claim.      Based on our

review of the record, it is arguable that Reyes did not properly

preserve this issue in district court.2   While Respondent does not

claim that this narrow issue is raised for the first time on

appeal, “we, not the parties, select the appropriate standard of

review, including whether an issue will even be addressed if not

raised in district court.”    Guidry v. Dretke, 397 F.3d 306, 319

(5th Cir. 2005), cert. denied, 126 S. Ct. 1587(2006).


     2
       Reyes only tersely mentioned the issue in his supplemental
brief to the district court. Out of an abundance of caution, we
will address Reyes’s procedural concern which serves as a
precursor to our discussion of his IAC claim for a COA. However,
a COA is not required to review whether the district court erred
by not granting Reyes an evidentiary hearing because that
decision was neither made by a state court nor does it seem to
otherwise fall within the underlying deference framework required
by AEDPA.

                               -14-
     The district court’s decision to not grant an evidentiary

hearing is reviewed for abuse of discretion.         McDonald v. Johnson,

139 F.3d 1056, 1059 (5th Cir. 1998).              The court found that a

hearing was not required because Reyes did not demonstrate any

factual dispute whose favorable outcome would have entitled him to

relief, and each of his claims could be resolved by reference to

the state court record.    Neither in the district court nor in this

court did Reyes attempt to satisfy the statutory requirements that

would justify an evidentiary hearing.

     Under 28 U.S.C. § 2254(e)(2), an applicant who has failed to

develop the factual basis of a claim in the state habeas court may

not obtain an evidentiary hearing in federal habeas proceedings

unless two conditions are met.     First, the petitioner’s claim must

rely on a new rule of constitutional law, or on a factual predicate

that could not have been previously discovered through the exercise

of due diligence.   28 U.S.C. § 2254(e)(2)(A)(ii).             Second, “the

facts underlying the claim would be sufficient to establish by

clear and convincing evidence that, but for constitutional error,

no reasonable factfinder would have found the applicant guilty of

the underlying offense.”       28 U.S.C. § 2254(e)(2)(B).           However,

these requirements do not work against a petitioner unless the

petitioner’s   failure    to   develop    facts    was   due   to   “lack   of

diligence, or some greater fault, attributable to the prisoner or

the prisoner’s counsel.”       Dowthitt v. Johnson, 230 F.3d 733, 758



                                   -15-
(5th Cir. 2000)(quoting Williams, 529 U.S. at 432), cert. denied,

532 U.S. 915 (2001).   This determination depends on “whether the

prisoner made a reasonable attempt, in light of the information

available at the time, to investigate and pursue claims in state

court.”   Williams, 529 U.S. at 435.

     The district court acknowledged that while at least one of

Reyes’s federal habeas attorneys also represented him in state

habeas proceedings, federal habeas counsel did not provide an

explanation for failing to submit an affidavit from the mitigation

investigator to the state habeas court or any information regarding

trial counsel’s strategy at the punishment phase to either the

state court or the district court.      However, even assuming that

Reyes made a reasonable attempt to investigate and pursue his

claims in the state habeas court, we find that the district court

did not abuse its discretion in refusing to hold an evidentiary

hearing. When “[t]he district court ha[s] sufficient facts before

it to make an informed decision on the merits of [the habeas

petitioner’s] claim” it does not abuse its discretion in failing to

conduct an evidentiary hearing.        McDonald, 139 F.3d at 1060.

Moreover, we have previously expressed that “[a] full and fair

hearing does not necessarily require live testimony.”     Murphy v.

Johnson, 205 F.3d 809, 816 (5th Cir. 2000) (explaining that this

Court has repeatedly stated that a paper hearing is sufficient

especially where, as here, the trial court and the state habeas


                               -16-
court were one and the same).      Accordingly, because we conclude

that the district court did not abuse its discretion by not holding

a hearing on Reyes’s IAC claim, we turn to Reyes’s request for a

COA.

C.     Would reasonable jurists find it debatable that Reyes
       received effective assistance of counsel?

       Reyes seeks a COA because he contends that reasonable jurists

could debate whether his Sixth and Fourteenth Amendment rights to

effective assistance of counsel were violated. Specifically, Reyes

argues that trial counsel rendered IAC by failing to investigate

and to present significant mitigating evidence, including, but not

limited to, evidence that he sustained substantial abuse as a

child.

       Strickland v. Washington, 466 U.S. 668 (1984), governs IAC

claims.    See Williams, 529 U.S. at 390-91.          In order to establish

IAC, a petitioner must demonstrate that his counsel’s performance

was deficient and that the deficiency prejudiced his defense.

Strickland, 466 U.S. at 687-88.       The absence of either deficient

performance or prejudice will defeat an IAC claim.             Leal v. Dretke,

428 F.3d 543, 548 (5th Cir. 2005).

       Trial   counsel’s   performance        is     deficient     only     when

“representation     [falls]   below      an        objective     standard    of

reasonableness.”     Strickland, 466 U.S. at 687-88.               We measure

reasonableness against “prevailing professional norms,” viewed in

light of all of the circumstances at the time of the performance.

                                 -17-
Id. at 688.    “Judicial scrutiny of counsel’s performance is highly

deferential. . . . a court must indulge a strong presumption that

counsel’s    conduct    falls    within   the    wide      range   of   reasonable

professional assistance.”        Id. at 689.3

      Although “we consider it indisputable that, in the context of

a capital sentencing proceeding, defense counsel has the obligation

to conduct a ‘reasonably substantial, independent investigation’

into potential mitigating circumstances[,]” Neal v. Puckett, 286

F.3d 230, 236-37 (5th Cir. 2002) (quoting Baldwin v. Maggio, 704

F.2d 1325, 1332-33 (5th Cir. 1983)), counsel’s failure to do so is

not per se deficient performance.         Moore v. Johnson, 194 F.3d 586,

615 (5th Cir. 1999).      “[O]ur principal concern in deciding whether

[defense counsel] exercised ‘reasonable professional judgmen[t],’

is   not    whether    counsel   should       have   presented     a    mitigation

case....Rather, we focus on whether the investigation supporting

counsel’s decision not to introduce mitigating evidence of [the

defendant’s] background was itself reasonable.”               Wiggins v. Smith,

539 U.S. 510, 522-23 (2003) (quoting Strickland, 466 U.S. at 691).

      The    Supreme    Court    has    referred      to    the    American   Bar


      3
      Moreover, we have stated that courts “must be particularly
wary of ‘arguments that essentially come down to a matter of
degrees. Did counsel investigate enough? Did counsel present
enough mitigating evidence? Those questions are even less
susceptible to judicial second-guessing.’” Dowthitt v. Johnson,
230 F.3d 733, 743 (5th Cir. 2000)(quoting Kitchens v. Johnson,
190 F.3d 698, 703 (5th Cir. 1999)), cert. denied, 532 U.S. 915
(2001).

                                       -18-
Association’s       (“ABA”)    standards       for    capital    defense     work   as

“‘guides to determining what is reasonable’”                  Id. at 524 (quoting

Strickland, 466 U.S. at 688).                “The ABA Guidelines provide that

investigations into mitigating evidence ‘should comprise efforts to

discover all reasonably available mitigating evidence and evidence

to rebut any aggravating evidence that may be introduced by the

prosecutor.’” Id. (quoting ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93

(1989) (emphasis added)).            However, in assessing reasonableness a

court must      consider      whether    the    known     evidence   would    lead a

reasonable attorney to investigate further.                   Id. at 527.      While

Strickland does not require attorneys to investigate every possible

line    of    mitigating      evidence       irrespective       of   its   potential

usefulness, or to present such evidence in every case, “‘strategic

choices      made   after     less    than     complete     investigation[s]        are

reasonable’     only   to     the    extent    that   ‘reasonable      professional

judgments support the limitations on investigation.’”                      Id. at 533

(quoting Strickland, 466 U.S. at 689).

       Even if counsel’s performance was deficient, conduct is only

prejudicial if, “but for counsel’s errors, there is a reasonable

probability that the final result would have been different and

confidence in the reliability of the verdict has been undermined.”

Leal, 428 F.3d at 548.

       In the district court, Reyes alleged that his attorney’s


                                         -19-
failure to investigate and present mitigating evidence cannot be

attributed to trial strategy because trial counsel did not contact

an investigator to conduct an investigation into evidence for the

punishment   phase    until     the   “Thursday     or    Friday”    before    the

punishment phase’s commencement on the following Monday.                       The

district    court    reasoned    that,    assuming       arguendo    that   trial

counsel’s    performance      was     objectively    deficient       because     a

reasonably prudent attorney would have conducted an investigation

into punishment before starting a capital murder trial and that

Reyes has proffered mitigating evidence that was not presented at

trial, Reyes still failed to demonstrate prejudice.                 The district

court found that: (1) much of the evidence revealed to the state

habeas court had already been heard by the jury; and, (2) while the

aggravating evidence was as strong as the evidence in Wiggins and

Williams, the two major Supreme Court cases offering guidance on

how to dispose of Reyes’s claim, the mitigating evidence was far

weaker than the substantial abuse apparent in those cases. See,

e.g., Hood v. Dretke, 93 F. App’x 665, 668 (5th Cir. 2004).

Accordingly, the district court ultimately concluded that the state

court’s decision on Reyes’s IAC claim was not contrary to, and did

not involve, an unreasonable application of clearly established

federal law. We conclude that reasonable jurists would not find it

debatable that Reyes was not prejudiced by a deficient presentation

of mitigating evidence.


                                      -20-
       While there was evidence that Reyes’s mother neglected her

home and her children, and was emotionally abusive towards Reyes,

the mitigating evidence was far weaker than the substantial abuse

apparent in Wiggins and Williams.         In Wiggins, counsel failed to

present evidence to the jury that: (1) Wiggins’s alcoholic mother

frequently left him and his siblings alone for days, forcing them

to beg for food and to eat paint chips and garbage; (2) Wiggins’s

mother had sex with men while her children slept in the same bed

and that she had once forced Wiggins’s hand against a hot stove,

causing him to be hospitalized; (3) Wiggins was physically abused

by two foster mothers, raped by a foster father, and gang-raped by

boys in another foster home; and, (4) Wiggins was sexually abused

by a supervisor in his Job Corps program.          Wiggins, 539 U.S. at

516-17.    In Williams, counsel failed to present evidence to the

jury    that:   (1)   Williams’s   parents   had   been   imprisoned   for

criminally neglecting Williams and his siblings; (2) Williams had

been severely and repeatedly beaten by his father; (3) Williams had

been placed in an abusive foster home; and, (4) Williams was

borderline mentally retarded.       Williams, 529 U.S. at 395-96.

       In light of the district court’s application of Williams and

Wiggins, we conclude that Reyes has not established that jurists of

reason could disagree with the district court’s resolution of his

constitutional claims or that reasonable jurists could conclude the

issues presented are adequate to deserve encouragement to proceed


                                   -21-
further.4     Accordingly, we deny Reyes’s application for COA on his

IAC claim.



                            III. CONCLUSION

       For the foregoing reasons, we DENY Reyes’s application for a

COA.       We also find that the district court did not abuse its

discretion by not holding an evidentiary hearing on Reyes’s IAC

claim.




       4
      We also note, as previously mentioned, that the district
court acknowledged that while at least one of Reyes’s federal
habeas attorneys also represented him in state habeas
proceedings, federal habeas counsel did not provide an affidavit
(or an explanation for failing to submit one) from Reyes’s trial
counsel regarding his strategy at the punishment phase to either
the state court or the district court. Had an affidavit been so
presented, the record would be far better developed for review.

                                  -22-
