     Case: 13-70027      Document: 00513124175         Page: 1    Date Filed: 07/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-70027                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
GUY LEN ALLEN,                                                              July 21, 2015
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CV-651


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The United States District Court for the Western District of Texas
denied petitioner Guy Allen’s federal habeas petition and denied his request
for a Certificate of Appealability (“COA”). Allen now moves in this court for a
COA. The motion is DENIED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-70027       Document: 00513124175          Page: 2     Date Filed: 07/21/2015


                                       No. 13-70027

                 FACTUAL AND PROCEDURAL BACKGROUND
       On the morning of April 3, 2002, nineteen-year-old Janette Johnson
placed a 911 call to police stating there was “domestic violence” occurring
between her mother, Barbara Hill, and her “mom’s friend.” Police arrived
seven minutes after the call and found Hill dead in the backyard and Johnson
dead in the kitchen. Hill had been stabbed or cut forty-six times; Johnson had
been stabbed or cut ten times. Allen ostensibly was Hill’s boyfriend at the time
of the killings. Allen concedes that he “was connected to the commission of the
offense by a plethora of evidence, including, among other things, numerous
DNA matches.” Allen was tried in state court in Travis County, Texas. A jury
found him guilty of capital murder.
       During the penalty phase of the trial, Allen’s younger brother, Steve
Allen, 1 testified about Allen’s family background.                    It was extremely
impoverished and rife with abuse. Steve testified that he, Allen, and their six
siblings, lived with their mother in a one-room house. The family often had no
electricity or gas, food was scarce, and the children slept on the floor. Their
father was rarely at home, but when he was, he was angry, violent, and drunk.
Their father physically abused their mother, and both parents physically
abused the children. Additionally, Allen was repeatedly raped by a cousin from
age nine to eleven.
       Steve also testified about the family’s reluctance to speak of Allen to his
counsel or the mitigation specialist:
       Counsel:      Was it difficult for you to come forward and speak to
                     this jury today?
       Steve:        Harder than you think.
       Counsel:      The things that you’ve told this jury—


       1 Steve Allen will be referred to as “Steve” in this opinion; Guy Allen will be referred
to as “Allen.”
                                              2
    Case: 13-70027     Document: 00513124175     Page: 3   Date Filed: 07/21/2015


                                  No. 13-70027

      Steve:      Something I was never supposed to tell.
      Counsel:    Are these things you even discuss inside your family?
      Steve:      Never. They never get brought up. They never get
                  mentioned. They never get talked about. They never get
                  hinted about. Something that was supposed to stay hidden.
      Counsel:    Were you encouraged not to tell?
      Steve:      For—yeah, they told me not to say anything. If [mitigation
                  specialist] [G]erry Byington would come by and send a
                  message on, I was not to talk to him for any reason. Or any
                  one of the lawyers that were representing my brother. I
                  wasn’t suppose[d] to talk to them, period.
      Counsel:    Well, we’re talking about right now, not sometime in the
                  past.
      Steve:      I’m talking about just here recently, even last night. I was
                  encouraged not to talk to you—any of you about it.
      Counsel:    It’s not something even you and Guy have discussed, is it?
      Steve:      Never.
      During its closing argument, the prosecution stated that “[i]f there is a
scintilla of mitigation, it must come from Steve Allen” and “if there’s one of you
who believes that Steve Allen is a credible and believable person, we failed in
voir dire because we did allow an insane person to come on to this jury.” The
prosecution noted that no one other than Steve had testified on Allen’s behalf;
that the absence of any other witnesses was “telling”; and that their “silence
sp[oke] volumes” because “[i]f they had something good to say, you better
believe they would have been brought it in here to say it.”
      Defense expert Dr. Robert Cantu, a general and forensic psychiatrist,
also testified during the penalty phase.         His testimony was based on
information gleaned from Steve’s testimony, a meeting between Steve and trial
counsel, and facts in a hypothetical incorporating Allen’s life history. He did
not personally evaluate Allen or review his records.        Cantu testified that
Allen’s upbringing explained, but did not excuse, much of his behavior. He
stated that because Allen’s father physically abused women and treated them

                                        3
    Case: 13-70027     Document: 00513124175     Page: 4   Date Filed: 07/21/2015


                                  No. 13-70027

as objects, Allen did so as well, and that Allen was angry with women because
his own mother was not protective of him. Also, Allen’s sexual assault by his
cousin made him overly aggressive in an attempt to stave off future attacks.
Cantu concluded that Allen’s violence and rage could be managed, particularly
in a prison setting, with the right type of therapy and medication.
      Also presented to the jury during the penalty phase was evidence of
Allen’s violent history. In 1994, Allen was convicted of aggravated assault
after an altercation with a man that resulted in the man’s death. That same
year, a woman with whom Allen had a child was questioned by police about
bruises on her face; she testified that Allen, her boyfriend at the time, had beat
her. In 1998, Allen assaulted his then-wife Darlene Allen, told her he was
going to kill her, broke her jaw, fractured her rib, and ruptured her spleen.
When Darlene’s fourteen-year-old daughter tried to intervene, Allen pushed
her out a second-story window, resulting in the placement of a rod and two
screws in her leg. This resulted in a conviction for misdemeanor assault. While
Allen was incarcerated pending trial for the murders of Hill and Johnson, he
was involved in two fights with other inmates. Evidence of convictions for drug
offenses and criminal trespass was also presented.
      Allen was sentenced to death in March 2004. His direct appeal was
denied in June 2006, and the United States Supreme Court denied his petition
for a writ of certiorari in January 2007. Allen filed for state habeas relief. In
one of his ten claims for relief, Allen argued that trial counsels’ mitigation
investigation and presentation was inadequate. At the evidentiary hearing,
trial counsel were asked about their decision not to allow Cantu to personally




                                        4
     Case: 13-70027       Document: 00513124175          Page: 5     Date Filed: 07/21/2015


                                       No. 13-70027

evaluate Allen. 2 Counsel testified that they did not want Cantu to evaluate
Allen because, if he had, the State would have been allowed to evaluate Allen.
Also, one of Allen’s trial counsel testified he felt they would “lose ground” if
Cantu met with Allen because Allen was “one of the most explosively
dangerous human beings” he had ever known, 3 and the “problem with having
an expert interact with your client is that the expert is bound to make truthful
answers and you may then create an expert who helps you and damages you
at the same time.”
       On the same claim, trial counsel testified that Steve was the only family
member to present mitigation testimony because Allen and his family would
not speak to counsel or the mitigation specialist, Gerry Byington. In fact, trial
counsel were surprised when Steve “finally” came forward and agreed to
testify. One of Allen’s counsel testified that
       Guy was an absolute stonewall. Every time that I raised
       mitigation with Guy, every time I reminded him that in my opinion
       he was a perfect candidate for death row unless we found the
       reasons to persuade a jury that he deserved some consideration
       that he should not have the death penalty inflicted, he just
       wouldn’t talk. What little we did learn, and it wasn’t much, never
       came as a result of any communication I had with Guy. It came
       because Gerry Byington somehow got it.
He also stated that “[t]he single most frustrating part of representing Guy in
this death penalty case is that [as to] what in my mind was the single most
important issue, mitigation, [he] was an absolute stonewall.”
       Danalynn Recer, the director of a capital-case defense office, presented a



       2 Allen did not bring a claim in the state court challenging trial counsels’ utilization
of Dr. Cantu. Counsel were questioned about Dr. Cantu within the context of Allen’s
mitigation claim.
       3 One of Allen’s trial counsel knew him well as he had represented him on his

convictions for aggravated and misdemeanor assault.
                                              5
    Case: 13-70027      Document: 00513124175    Page: 6   Date Filed: 07/21/2015


                                  No. 13-70027

report to the state court in which she concluded that counsel had performed
their mitigation investigation inadequately. She found that most of Allen’s
family was easily located; all of them cared about Allen and were interested in
cooperating with the defense; all of them invited state habeas investigators
into their homes to visit; and most were willing to provide sworn affidavits
regarding the testimony they would have provided at trial. Recer also reported
that Byington developed a list of 19 potential witnesses but only interviewed
two, and that he did not interview any life history witnesses until six weeks
before the penalty phase when he attempted to speak with Allen’s mother and
aunt.
        Allen submitted affidavits from several family members and friends in
support of his state habeas application. The affidavits detailed the extreme
poverty in which Allen grew up; a family history of mental illness; the physical
abuse of Allen’s mother by his father; the death of Allen’s brother and aunt;
and the physical and sexual abuse of Allen by family members. All affiants
stated they would have testified for Allen if asked. One family friend, Charles
Wattles, stated that he received a call from Allen’s mother asking him to speak
to trial counsel; he called counsel two or three times and left messages, but no
one ever contacted him.
        There was also evidence that one of Recer’s interns had stayed on Allen’s
mother’s doorstep for 40 hours to get an interview. Also, Byington’s time
summary showed he began his attempts to contact family members in March
2003, and included at least ten entries documenting such efforts.
        In December 2009, the state court denied habeas relief. The Texas Court
of Criminal Appeals adopted the court’s findings and denied relief. Allen filed
for federal habeas relief in August 2011. The magistrate judge recommended
the petition be denied on procedural and substantive grounds. Following the

                                        6
    Case: 13-70027     Document: 00513124175     Page: 7   Date Filed: 07/21/2015


                                  No. 13-70027

Supreme Court’s decision in Trevino v. Thaler, 133 S. Ct. 1911 (2013), the
district court referred the case back to the magistrate judge for an amended
report. The magistrate judge again recommended denial of relief. In August
2013, the district court conducted a de novo review of Allen’s claims, “approved
and accepted” the magistrate judge’s amended report, denied relief, and denied
a COA. Allen filed a notice of appeal and a motion for COA with this court.
After briefing was completed, Allen’s counsel asked to be removed due to health
problems. New federal habeas counsel was appointed and the parties were
directed to re-brief the case.
                                 DISCUSSION
      To appeal the district court’s denial of his habeas petition, Allen must
first obtain a COA. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A COA
may issue “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, “a district
court has rejected the constitutional claims on the merits . . . [t]he petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”            Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The issue is the “debatability of the
underlying constitutional claim, not the resolution of that debate.” Miller-El,
537 U.S. at 342. “Indeed, 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. “This threshold
inquiry does not require full consideration of the factual or legal bases adduced
in support of the claims,” but rather “an overview of the claims in the habeas
petition and a general assessment of their merits.’” Id. at 336. “[A]ny doubts
as to whether the COA should issue are resolved in favor of the petitioner.”
Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008).

                                        7
    Case: 13-70027      Document: 00513124175    Page: 8    Date Filed: 07/21/2015


                                  No. 13-70027

      For claims that were adjudicated at the state court level, “the
determination of whether a COA should issue must be made by viewing the
petitioner’s arguments through the lens of the deferential scheme laid out in
28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000).
Under Section 2254(d), a federal court may not grant habeas relief unless the
state court’s adjudication “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
      “A state court’s decision is ‘contrary to’ clearly established federal law if
‘the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially
indistinguishable facts.’” Higgins v. Cain, 720 F.3d 255, 260 (5th Cir. 2013)
(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A state court’s decision
involves an ‘unreasonable application of clearly established federal law’ if the
state court ‘identifies the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413). “The state court’s
factual findings are ‘presumed to be correct’ unless the habeas petitioner
rebuts the presumption ‘by clear and convincing evidence.’” Id. (quoting 28
U.S.C. § 2254(e)(1)).
      To prevail on an ineffective assistance of trial counsel claim, Allen must
show that (1) counsel’s actions were deficient, and (2) the deficiency prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the
first prong, there is a “strong presumption that counsel’s conduct falls within

                                        8
     Case: 13-70027      Document: 00513124175        Page: 9    Date Filed: 07/21/2015


                                     No. 13-70027

the wide range of reasonable professional assistance[.]” Id. at 689. To satisfy
the second prong, a “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
      Allen seeks a COA on his third and fourth claims for habeas relief at the
district court. We examine each in turn.
I.    Whether the district court’s denial of relief on Claim 3 is debatable
      At the district court, Allen claimed that trial counsel provided ineffective
assistance by failing to prepare expert witness Dr. Robert Cantu adequately to
testify on behalf of Allen during the punishment phase of trial.                   After
considering the claim on the merits, 4 the magistrate judge found that counsels’
decision not to have Cantu personally evaluate Allen or his records was not
deficient, but, instead, strategic, because “Texas law at the time provided that
a defendant who submits to an interview by his own psychiatric expert must
submit to an interview with the prosecution’s expert.” The magistrate judge
also discussed the testimony by one of Allen’s counsel that he did not want
Cantu meeting Allen as he felt they would “lose ground” due to what he knew
of Allen.
      In addition, the magistrate judge found that Allen “has not shown he was
prejudiced as a result of counsel’s strategic decision” as “[he] has not pointed
to any evidence or testimony Cantu would have presented had Cantu examined
him. Rather, Allen simply suggests Cantu was subject to damning cross-
examination by the prosecution as a result.” The magistrate judge noted that
while it was true that during cross-examination Cantu admitted he did not



      4 This claim was not raised at the state court and is therefore unexhausted; the
magistrate judge excused the default under Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012),
and Trevino v. Thaler, 133 S. Ct. 1911 (2013).
                                            9
    Case: 13-70027       Document: 00513124175         Page: 10     Date Filed: 07/21/2015


                                      No. 13-70027

review Allen’s records, “[u]nder Texas law, had Cantu reviewed those records,
he would have been required to disclose the information in them.”                       The
information in the records showed that Allen: (1) had an “other than honorable
discharge” from the Army due to a dirty urinalysis; (2) admitted to marijuana,
cocaine, and speed use; (3) had a history of assault; (4) had anger problems
which led him to “episodic acting out”; (5) possessed “much in common” with
individuals known to be violent; (6) took no responsibility for one child and had
not seen two other children in three years; (7) rationalized his own behavior
and transferred blame to others; (8) did not “exhibit empathy” toward his
victims; and (9) had a history of drug use. The magistrate judge found that
“Counsel’s strategy was aimed at avoiding the damage that admission of such
evidence would have caused.” Therefore, “Allen has failed to show counsel’s
decision to limit the information provided to Cantu and thus avoid the
admission of damaging evidence, resulted in prejudice to him.”
       The district court adopted the magistrate judge’s findings in full, holding
that Allen had “failed to show that trial counsel’s decision to not have Dr.
Cantu examine Allen in order to protect Allen from examination by the
prosecution’s expert constitutes a deficient strategic decision or prejudiced his
defense.”
     In his motion for COA, Allen contends that counsels’ argument that they
did not have Cantu evaluate Allen because they did not want the State’s expert
to evaluate him is without merit. He notes that any information the State
would have gleaned could not have been used unless trial counsel presented
Cantu’s testimony at trial. 5 In light of this, Allen argues, trial counsel should



       5Allen adds to his request for a COA on Claim 3 on appeal. He argues, for the first
time, that trial counsel were ineffective for not having Allen evaluated by “another forensic
medical expert.” Because a request for a COA on this specific claim was not raised at the
                                             10
    Case: 13-70027        Document: 00513124175          Page: 11     Date Filed: 07/21/2015


                                       No. 13-70027

have allowed the personal evaluation, kept all the gleaned information
confidential, and had a non-examining expert testify instead of Cantu. As to
prejudice, Allen concedes he cannot establish it because state and federal
habeas counsel failed “to obtain and/or present evidence from a mental health
evaluation.” He argues that under Martinez v. Ryan, 132 S. Ct. 1309 (2012),
he is entitled to remand for the consideration of prejudice in light of a new
mental health evaluation he now provides to this court.
     As to the first prong of Strickland, we conclude that reasonable jurists
would not debate the district court’s conclusion that trial counsel were not
deficient. “[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91.
     Here, trial counsels’ strategic decision not to have Cantu personally
evaluate Allen was reasonable. Counsel – one of whom knew Allen well – not
only wanted to avoid an examination of Allen by the State, but also felt that
“no good” could come out of Cantu examining Allen due to his “explosively
dangerous” personality. Trial counsels’ strategic decision to restrict Cantu’s
access to Allen’s records was also reasonable because, had Cantu reviewed
them, the damaging information in the records could have been admissible at
trial on cross-examination. See TEX. R. EVID. 705(a).
     Nevertheless, even assuming that trial counsels’ performance was




district court, we lack jurisdiction to consider it, and it is waived. See Brewer v. Quarterman,
475 F.3d 253, 255 (5th Cir. 2006). “We have repeatedly held that a contention not raised by
a habeas petition in the district court cannot be considered for the first time on appeal from
that court’s denial of habeas relief.” Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999).
                                              11
   Case: 13-70027      Document: 00513124175    Page: 12   Date Filed: 07/21/2015


                                 No. 13-70027

deficient, the district court’s conclusion that Allen did not establish prejudice
is not debatable. The magistrate judge found that Allen failed to establish
prejudice as he did not “point[] to any evidence or testimony Cantu would have
presented had Cantu examined him.” In one precedent, the defendant argued
that his counsel was ineffective because he failed to call an expert witness to
testify about blood testing. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir.
2002). We rejected the claim because the defendant “did not present any
evidence or allegations concerning what the expert would have stated . . . .” Id.
In another case, we held that to establish prejudice on an ineffective assistance
claim based on failure to call a witness, the defendant must “set out the content
of the witness’s proposed testimony, and show that the testimony would have
been favorable to a particular defense.” Day v. Quarterman, 566 F.3d 527, 538
(5th Cir. 2009). Allen argues that counsel should have had Cantu evaluate
Allen and his records so that Cantu would have been better prepared to testify
during the punishment phase. But Allen did not provide the district court with
any evidence of what Cantu would have testified to had he examined him or
his records, nor did he show that Cantu’s testimony would have been favorable
to the defense.     Reasonable jurists would not debate the conclusion that
prejudice was not established.
      Allen does not dispute the magistrate judge’s prejudice conclusion, but
claims that, under Martinez, he is entitled to remand to establish prejudice
via a newly provided mental health evaluation. This argument is without
merit as Allen has received all the relief he is due under Martinez. Martinez
“allows a federal court to consider the merits of a claim that otherwise would
have been procedurally defaulted,” it “does not entitle the prisoner to habeas
relief.” 132 S. Ct. at 1320. Here, the magistrate judge found that Claim 3 was
procedurally defaulted. It excused the default under Martinez, considered the

                                       12
      Case: 13-70027     Document: 00513124175         Page: 13     Date Filed: 07/21/2015


                                      No. 13-70027

claim on the merits, and recommended denial of relief. The district court
conducted a de novo review of Allen’s claims, adopted the magistrate judge’s
findings, and denied relief.         Allen is entitled to no further relief under
Martinez. 6
        Because the district court’s denial of relief on Claim 3 is not debatable,
Allen’s request for a COA is denied.


II.   Whether the district court’s denial of relief on Claim 4 is debatable
        In his fourth claim for relief at the district court, Allen claimed that trial
counsel provided ineffective assistance by failing to conduct a proper
investigation into Allen’s life history and to present a mitigation defense
during the punishment phase of trial. This claim was adjudicated on the
merits at the state court.        As is relevant here, the state court made the
following factual findings and denied relief:
        vv) Based on the credible testimony of trial counsel, this Court
        finds that Applicant’s family, other than Steve, was uncooperative
        and did not provide counsel with beneficial information regarding
        Applicant’s past.
        ***
        yy) Counsel faced an uphill battle on punishment since the family
        was uncooperative, but were nonetheless successful in procuring
        the beneficial testimony of Steve Allen.
        On federal habeas review, the magistrate judge found that Allen did not
“establish[] the state court was unreasonable in concluding counsel did not
conduct an inadequate investigation into his background” as he did not “point[]



        6Further, Allen argues that remand is required under Martinez and Trevino because
state and federal habeas counsel were ineffective for not obtaining a mental evaluation of
Allen. We disagree. Martinez and Trevino apply to claims of ineffective assistance of trial
counsel, and examines if habeas counsel in initial collateral proceedings was ineffective for
failing to bring such claims. See Martinez, 131 S. Ct. at 1320; Trevino, 133 S. Ct. at 1921.
                                             13
    Case: 13-70027    Document: 00513124175      Page: 14   Date Filed: 07/21/2015


                                  No. 13-70027

to clear and convincing evidence which contradicts the finding of the state court
that the mitigation investigation was largely stymied by the ‘stonewall’ Allen
presented to [counsels’] inquiry into his family history and the lack of
cooperation by Allen’s family.” It noted the following evidence that was before
the state court: (1) trial counsels’ testimony that Allen’s family was extremely
uncooperative; (2) Steve’s testimony during the penalty phase that the family
urged him not to talk to counsel or Byington; (3) the fact that Recer’s intern
sat on Allen’s mom’s porch for 40 hours trying to get an interview; and (4)
Byington’s time summary, which included at least ten entries documenting his
efforts to contact Allen’s family and showed that Byington began his attempts
at contact a year before trial.
      In addition to the stonewalling, the magistrate judge found that this was
not a case where counsel or the mitigation specialist wholly failed to
investigate. Rather, the evidence showed that Byington obtained medical,
school, military, and employment records for Allen, and counsel were able to
enlist Steve to testify regarding Allen’s abusive childhood. As to prejudice, the
magistrate judge found it was not established as Allen failed to show that
additional family and friends would have testified about evidence other than
what was addressed by Steve. Therefore, Allen could not establish that but for
the alleged errors of counsel, the outcome of the proceeding would have been
different.
      Allen argues before this court that trial counsels’ performance was
deficient as their “d[e] minim[i]s mitigation investigation and very poor
presentation of mitigation evidence through only two witnesses – the
unprepared Dr. Cantu and the vulnerable Steve Allen – fell way below
acceptable professional standards for the development and presentation of
mitigation evidence.” He argues that Byington’s efforts to contact Allen’s

                                       14
    Case: 13-70027       Document: 00513124175          Page: 15     Date Filed: 07/21/2015


                                       No. 13-70027

family and friends were deficient under controlling federal law. 7                    As to
prejudice, Allen argues that the testimony of family and friends was not
cumulative and was needed as additional support for Steve’s testimony as, due
to his criminal past, Steve was impeachable. 8 Allen argues that had the
additional testimony been offered, “[t]here is a reasonable likelihood that one
juror might have chosen ‘yes’ on the mitigation special issue, based upon the
horrific childhood from which Mr. Allen emerged.”
       Allen also contends that remand to the district court for a
“Martinez/Trevino hearing” is required because the state and federal decisions
in this case are “tainted by false testimony.” He relies on a letter sent a year
and a half before trial by Allen to his trial counsel, allegedly containing a “load
of mitigation evidence and suggesting avenues of investigation.” Allen avers
that the letter proves trial counsel lied about Allen’s stonewalling, and since
the entirety of the decisions by state and federal court were “forged on the false
impression” that Allen and his family were uncooperative, Allen has “not yet
been afforded a fair hearing for his Strickland claims and he deserves one.”
       Because this claim was adjudicated on the merits by the state court,
“[w]e must now decide whether the district court’s decision – that the state



       7  Allen also argues that the mitigation investigation was unreasonable in light of the
ABA guidelines which state that investigation of a defendant’s life history must involve “in-
person, face-to-face, one-on-one interviews with the client and the client’s family, and other
witnesses who are familiar with the client’s life, history, or family history or who would
support a sentence less than death.” The quoted language is from the ABA Supplementary
Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, Guideline
10.11(c). These guidelines were promulgated in 2008. See Supplementary Guidelines for the
Mitigation Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 677, 689
(2008). As the State notes, the quoted guideline was promulgated well after trial and
therefore cannot render the state court’s decision unreasonable. See Bobby v. Van Hook, 558
U.S. 4, 7-8 (2009).
        8 On cross-examination, Steve admitted that he had been incarcerated “five or six”

times for a total of seven years in prison.
                                             15
   Case: 13-70027     Document: 00513124175     Page: 16    Date Filed: 07/21/2015


                                 No. 13-70027

court’s resolution of [Allen’s] IAC claim was not unreasonable under § 2254(d)
– presents a question debatable among reasoned jurists sufficient to warrant
a COA.” Ward v. Stephens, 777 F.3d 250, 263 (5th Cir. 2015), petition for cert.
filed (May 28, 2015) (No. 14-10033).
      As previously noted, under Section 2254(d), a federal court may not
grant habeas relief unless the state court’s adjudication “(1) resulted in a
decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “In the habeas context, ‘[e]stablishing that
a state court’s application of Strickland was unreasonable under § 2254(d) is
all the more difficult’” because “‘[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.’” Ward, 777 F.3d at 264 (quoting Harrington v. Richter,
562 U.S. 86, 105 (2011)). Ineffective assistance “habeas claims are subject to
two layers of deference, and state courts are granted substantial leeway.” Id.
(citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “If this standard is
difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
      Applying this highly deferential standard of review, we find that the
district court’s decision – that the state court’s denial of relief was not
unreasonable under Section 2254(d) – is not debatable.
      On deficiency, Allen argues that neither trial counsel nor the mitigation
specialist did enough to obtain mitigation evidence for presentation in the
punishment phase of his trial. Counsels’ performance cannot be considered
deficient, though, when potential mitigation witnesses refuse to cooperate.
“Competence does not require an attorney to browbeat a reluctant witness into

                                       16
   Case: 13-70027     Document: 00513124175     Page: 17    Date Filed: 07/21/2015


                                 No. 13-70027

testifying, especially when the facts suggest that no amount of persuasion
would have succeeded.” Knowles, 556 U.S. at 125. The evidence shows that
Allen’s family was not willing to cooperate with counsel or the mitigation
specialist. Steve testified that he was told by family as recently as the night
before trial that he should not speak on Allen’s behalf. In one instance, an
intern working for the defense stayed on Allen’s mother’s doorstep for 40 hours
to get an interview. Such evidence suggests that “no amount of persuasion
would have succeeded” in convincing the family to testify. See id. Accordingly,
counsels’ “acceptance of [Allen’s family’s] conveyance of a refusal [to testify]
does not rise to the high bar for deficient performance set by Strickland.” Id.
(citation, quotation marks, and alterations omitted).
      Further, absent “clear and convincing” evidence to the contrary, we are
precluded from “second-guessing” the state court’s factual finding that Allen’s
family stymied the mitigation investigation. Ward, 777 F.3d at 268. Though
the affidavits provided by Allen state that family and friends would have
testified had they been asked, such evidence does not meet the “clear and
convincing standard” when viewed in light of the evidence to the contrary.
      In addition, this is not a case where counsel wholly failed to investigate.
The evidence shows that Byington obtained medical, school, military, and
employment records for Allen. In fact, the state court made factual findings
that Byington submitted a “Service and Expense Summary Report, reflecting
111 hours of service,” and that he worked a “couple of hundred hours over the
approved money[.]” Also, though faced with the refusal of Allen’s family to
speak on his behalf, trial counsel were nonetheless able to procure Steve’s
testimony. In light of the foregoing, the district court’s conclusion that trial
counsel were not deficient is not debatable.
      Because deficiency is not established, we need not consider prejudice.

                                       17
    Case: 13-70027        Document: 00513124175          Page: 18     Date Filed: 07/21/2015


                                       No. 13-70027

       Finally, Allen argues that remand is required on Claim 4 under Martinez
and Trevino “in the interests of justice” because a newly discovered letter
proves that Allen did not “stonewall” counsel. This argument is without legal
support because “once a claim is considered and denied on the merits by the
state habeas court,” as is the case here, “Martinez is inapplicable . . . .”
Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014).                     In any event,
assuming arguendo the letter established that Allen did not “stonewall”
counsel, it does nothing to overcome the state court’s factual finding that
Allen’s family stymied the mitigation investigation. 9
       Because the district court’s decision – that the state court’s denial of
relief on Allen’s mitigation investigation and presentation claim was not
unreasonable – is not debatable, Allen’s request for a COA is denied. 10
       DENIED.




       9  Allen also contends that he was denied a fair hearing because state habeas counsel
failed to secure his attendance. He provides no legal support for the contention that personal
attendance is required; therefore, the argument is waived. See FED. R. APP. P. 28(a)(8)(A).
        10 Subsequent to the completion of briefing, Allen filed a 28(j) letter asserting that a

recent unpublished opinion, Tabler v. Stephens, 591 F. App’x 281 (5th Cir. 2015), supports
his motion for COA. Tabler is inapposite. In Tabler, we held that Martinez applies where the
“ineffective assistance of habeas counsel . . . prevents an initial-review collateral proceeding
from ever taking place.” Id. at 281. We also noted a potential conflict in Tabler because Tabler
had the same counsel for both his state and federal habeas proceedings. Id. Neither
circumstance is present here.
                                              18
