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           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                      No. 17-70001
                                                                           Fifth Circuit

                                                                         FILED
                                                                     July 19, 2018

CHARLES MAMOU, JR.,                                                 Lyle W. Cayce
                                                                         Clerk
              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-403


Before OWEN, ELROD, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      In 1999, a Texas jury sentenced Charles Mamou, Jr., to death for
murdering Mary Carmouche after kidnapping her. Almost two decades later,
we review Mamou’s claim for federal habeas relief on the following two
grounds: (1) his trial counsel should have objected to victim impact testimony
related to uncharged crimes; and (2) his trial counsel should have objected to
or countered the testimony of an expert witness concerning magazine marks
left on casings found at the crime scenes. Mamou also appeals the district
court’s denial of his motion for expert funding.    Finding no error in the
district court’s rulings, we AFFIRM.
                                       I.
      Carmouche lost her life as a consequence of a bad faith drug purchase
in which both sides met with the intent to rob the other. Mamou went with
two other men, Samuel Johnson and Terrence Dodson, to a mall parking lot
to ostensibly buy cocaine from Kevin Walter, Dion Holley, and Terrance
Gibson. Mamou’s plan, however, was to pretend to have the $20,000 cash in
a bag, but then pull a gun on the sellers and steal the cocaine. To help with
that ruse, on the way to the parking lot Mamou stopped at a convenience
store to purchase a newspaper, which he then cut in dollar-sized pieces and
placed in the bag. As for the sellers, they did not actually have the cocaine
Mamou planned on stealing; they planned on robbing Mamou of the money
they thought he had.
      Each side was rightly suspicious of the other and dallied about, driving
to different meeting points. In the course of this, Mamou and Johnson took
Dodson home, and their three opposites picked up Carmouche. Both groups
finally settled on a meeting on Lantern Point Drive, a minor street near
Houston’s Astrodome.
      The testimony becomes confused at this point, but shots were fired.
Holley was hit in the arm and ran to a nearby field. Walter attempted to
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                                  No. 17-70001
drive away in the blue Lexus in which his ensemble arrived, but Mamou shot
him through the glass. While Walter was exiting the car, Mamou shot him
several times more. Nonetheless, Walter continued to struggle with Mamou
and ran towards the rear of the Lexus.         Hit once again in the back, he
stumbled to where he found a fatally wounded Gibson lying on the ground
still holding his own weapon. Walter reached for the gun, but when he looked
back, he saw that Mamou was escaping in the Lexus with Carmouche still in
the car.   Mamou later admitted at trial that he shot Gibson and Walter (in
self defense, he said), but stated that he did not recollect firing at Holley.
      A security guard from a nearby apartment complex and officers from
the Houston Police Department arrived next. They were able to speak with
Holley, who lied about the reason for their encounter with Mamou (he said
his group had stopped to help Mamou whose car seemed to need a jumpstart)
but accurately reported that Mamou had shot them, stolen the Lexus, and
abducted Carmouche.       Gibson was past help, but the police arranged for
Holley and Walter to be taken to the hospital. None of these shooting victims
knew what happened to Carmouche after Mamou drove away with her in the
stolen car.
      Two days later, a meter reader for the electric company discovered
Carmouche’s body in the backyard of a vacant house in southwest Houston.
She had been shot once through the chest. Police found a single unspent
cartridge lying near her body.
      Police efforts to find Mamou led them to his father, who directed the
police to Dodson, the person Mamou had dropped off before encountering the
“sellers” at Lantern Point Drive. Dodson would later testify that Mamou
called him after returning to his home in Louisiana the day after the
shooting. When Dodson told Mamou that he had seen news reports about a
stolen Lexus and missing young woman, Mamou explained that he had been
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                                  No. 17-70001
in a shootout and escaped with a girl. He said he took her to an abandoned
house where she performed oral sex on him. Because the girl was “looking at
him funny,” Mamou shot her out of fear that she would talk to the police.
      After talking to Dodson and having Holley and Walter look at photo
spreads from which they identified Mamou as the shooter, the Houston Police
Department detective investigating the case asked law enforcement in
Louisiana to arrest Mamou. Those officials found Mamou hiding in the closet
of a home in Sunset, Louisiana.
      At the capital murder trial that followed, Walter, Holley, Johnson, and
Dodson testified about the events of the tragic evening. The prosecution also
offered firearms testimony from Robert Baldwin, a criminalist employed by
the Houston Police Department. He testified that the bullet recovered from
Carmouche’s body shared the same “class characteristics” as the bullets that
were extracted from Gibson and Holley at the hospital. He also testified that
the unspent cartridge discovered near Carmouche’s body was cycled through
the same magazine as one of the spent cartridges found at Lantern Point.
      During the punishment phase, the prosecution showed that Mamou
had previously been convicted of a cocaine trafficking offense. A Louisiana
police officer also testified that he once stopped Mamou for driving 100 miles
per hour on the highway, discovered that he was carrying a pistol, and
arrested him for being a felon in possession of a firearm.
      The government also presented evidence of an uncharged murder that
took place a year before Carmouche’s murder.           Mamou’s friend Joseph
Melancon testified that he had been heading with him to a nightclub when
Mamou asked to stop at a convenience store. Melancon saw Mamou get out
of the car and walk away with a man named “Bruiser” Williams; he then
heard gunshots. Melancon testified that he later saw Williams lying on the
ground at a nearby autoparts store. The police would later find newspaper
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                                   No. 17-70001
clippings, cut into the shape of dollar bills, scattered about the scene—the
same trick of disguising newspaper as money that Mamou used at Lantern
Point.
         Carmouche’s family offered victim impact testimony. So did the sister
of Williams and mother of Gibson even though the trial did not involve
charges for their murders. These witnesses described the emotional toll and
health problems they endured in the wake of the killing of their loved ones.
         Mamou sought to counter this testimony with testimony from his own
family members describing his harsh upbringing and his efforts as an adult
to provide for his family. It also called two expert witnesses, psychologist
Walter Quijano and parole supervisor Dorothy Morgan, who gave testimony
favorable to the defense on when Mamou would be eligible for parole and the
risk that he would be violent in prison.
         After the jury convicted him and sentenced him to die, Mamou
unsuccessfully appealed to the Texas Court of Criminal Appeals. While his
direct appeal was pending, Mamou filed a state application for habeas corpus.
This was followed by a pro se petition and a third petition filed with the
assistance of new state habeas counsel.         The Court of Criminal Appeals
dismissed these later petitions for abuse of the writ and adopted the findings
of fact and conclusions of law of the trial court rejecting the original habeas
application. Ex Parte Mamou, 2014 WL 467954 (Tex. Crim. App. Feb. 5,
2014).
         In federal court, Mamou sought funding to retain an expert to assist in
developing his claims. See 18 U.S.C. § 3599(f). The district court denied this
motion. Mamou then filed his federal habeas petition. It asserted 14 claims.
The district court granted summary judgment dismissing all of them, either
on procedural grounds or because Mamou could not overcome AEDPA’s
deferential standard of review for claims the state court had rejected on the
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                                      No. 17-70001
merits. Mamou sought a certificate of appealability from our court to appeal
only on the two ineffective assistance claims we mentioned at the outset. We
authorized those appeals and now consider both claims.
                                            II.
       Before reaching those Strickland claims, we review a district court
decision on which Mamou did not have to obtain a certificate of appealability:
the denial of his request for expert funding. A trial court’s decision to deny
funding under 28 U.S.C. § 3599 is reviewed for abuse of discretion. See Hill
v. Johnson, 210 F.3d 481, 487 (5th Cir. 2000). A district court may authorize
funding if the services of the proposed expert or investigator are “reasonably
necessary” to represent the petitioner. 18 U.S.C. § 3599(f). While this appeal
was pending, the Supreme Court rejected the “substantial need” language we
had been using in applying this statute. Ayestas v. Davis, 138 S. Ct. 1080
(2018). Ayestas concluded that “substantial need” arguably created a greater
burden than the text’s “reasonably necessary” language. Id. at 1093.
       The    district   court    understandably        recited    the   then-governing
“substantial need” standard in the section of its order discussing “applicable
legal standard.” But it never mentioned that heightened standard again,
instead using the statutory “reasonably necessary” language when declining
Mamou’s specific requests. Because the reasons the district court gave for its
ruling remain sound after Ayestas, we find no abuse of discretion. 1
       The district court rejected Mamou’s request seeking funding to develop
an actual innocence claim for two reasons. First, there is no freestanding


       1 We recognize that in two other cases since Ayestas we have remanded for
reconsideration of the funding decision. Robertson v. Davis, No. 17-70013, 2018 WL
3309567 (5th Cir. July 5, 2018); Sorto v. Davis, 716 F. App’x 366 (5th Cir. March 28, 2018).
And we held off on deciding the funding decision in this case until Ayestas issued. But
having applied that decision to the specific reasons for the funding denial in this case, we
conclude that a remand is not appropriate. As discussed, none of the district court’s
reasons depend on the heightened standard that Ayestas rejected.
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                                     No. 17-70001
actual innocence claim on federal habeas review. Herrera v. Collins, 506 U.S.
390, 404 (1993). Second, to the extent such a claim could be used to overcome
a procedural default of an independent constitutional claim, Mamou was only
“speculating” that the “State hid agreements with witnesses to manufacture
testimony.” As Ayestas recognized that funding is not appropriate when it
“stand[s] little hope of helping him win relief,” 138 S. Ct. at 1094, we find no
error in the rejection of this request for funding for a claim based on nothing
more than conjecture.
       The district court made similar findings about insufficient detail in
rejecting Mamou’s request for funding of a mitigation expert, so we also find
no abuse of discretion in that ruling.           Nor did the district court err in
concluding that there was no basis to fund an expert on future
dangerousness. Mamou wanted to use that to argue there was insufficient
evidence to support the jury’s finding of dangerousness. But as the district
court explained, a sufficiency challenge considers only “the record evidence
adduced at trial.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). Ayestas
undermines neither of these rulings. Indeed, Mamou’s appeal of the funding
denial does not focus on these punishment phase issues. 2
       Mamou’s main challenge to the section 3599 ruling involves the
funding he sought to develop ineffective assistance claims, especially his
claim of ineffective habeas counsel that he was using to try and overcome the
procedural default of his claim that trial counsel should have objected to
magazine mark testimony from a ballistics expert. 3                 The district court



       2  Respondent argues that we should consider the funding appeal only in the context
of this Martinez issue. It is certainly the main target of Mamou’s briefing. But we address
the other funding requests out of an abundance of caution because some of Mamou’s
arguments may encompass them.
        3 For ineffective assistance claims that had been exhausted in state court, the

district court rejected the funding request because further factual development was not
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                                      No. 17-70001
acknowledged that a petitioner may show cause to excuse the procedural
default of ineffective assistance of trial counsel claims if he received
ineffective assistance from his state habeas counsel. See Trevino v. Thaler,
133 S. Ct. 1911 (2013); Martinez v. Ryan, 566 U.S. 1 (2012). But the court
found     that   Mamou      failed   to   “explain    how     state   habeas     counsel’s
representation fell below expected standards.” It also held that he had failed
to provide “sufficient detail” about what the basis of his underlying ineffective
assistance of counsel claim would be.
        Ayestas’s rejection of the “substantial need” standard does not
undermine these findings that Mamou did not provide sufficient detail to
show a reasonable need for an investigator to help find evidence of ineffective
assistance. Mamou’s Catch-22 argument is that he could not show cause to
excuse the procedural default without funds, but the district court would not
give him funds because his underlying claims were procedurally defaulted.
This ignores the court’s ruling that Mamou had failed to show how expert
assistance would help him accomplish either goal, including establishing the
ineffective assistance of habeas counsel claim that could serve as
Martinez/Trevino cause. And for the claim Mamou pushes the most in his
funding appeal and on the merits—the ineffective assistance claim related to
trial counsel not challenging the magazine mark testimony—funding would
not be helpful because additional information discrediting that forensic
testimony would not have created a “reasonable probability” of a different
result.   See Strickland v. Washington, 466 U.S. 668, 694 (1984).                  That is
because, as explained more fully below in discussing the merits of this claim,
the magazine mark testimony that Mamou attacks was cumulative of other

reasonably necessary as AEDPA limits federal review to the existing state record. See
Cullen v. Pinholster, 563 U.S. 170, 180–81 (2011); Blue v. Thaler, 665 F.3d 647, 655–56 (5th
Cir. 2011). Mamou does not appear to challenge this ruling, which we agree with in any
event.
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                                       No. 17-70001
ballistics evidence, which itself only corroborated eyewitness testimony and a
confession strongly implicating Mamou. So even if court-funded investigation
might have revealed further weaknesses in the ballistics testimony to show
counsel’s mistake in not seeking to exclude or counter it, that could not
change the result of the prejudice inquiry as there remained overwhelming
evidence of Mamou’s guilt. 4
       We therefore conclude that the district court did not abuse its
discretion in denying funding.
                                            III.
                                             A.
       Mamou’s first substantive claim is that his trial counsel was ineffective
for failing to object to punishment phase testimony from victims of the
uncharged murders. Because the state court adjudicated this claim, we can
only grant relief if the state court judgment “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). For claims like Mamou’s that challenge the effectiveness
of counsel, that habeas standard is a second layer of deference. The first
comes from the Sixth Amendment standard itself, which requires a defendant
to show that his representation “fell below an objective standard of
reasonableness.”      Strickland, 466 U.S. at 687–88.             In assessing counsel’s
actions, courts must take account of the difficult strategic choices defense
lawyers have to make in the pressure cooker of trial. Id. at 689. Applying



       4 We thus need not consider respondent’s alternative argument that we can affirm
the funding decision as to the ineffective assistance claim on the rationale that 28 U.S.C. §
2254(e)(2) bars a federal court’s consideration of new evidence when the petitioner “failed to
develop the factual basis of a claim in State court proceedings” (unless certain
circumstances are met). Ayestas “decline[d] to decide” that question, 138 S. Ct. at 1095, and
we need not reach it in light of our reasoning above.
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                                 No. 17-70001
AEDPA on top of this deference to counsel’s decisions already built into
Strickland’s effectiveness inquiry means that review of this first question is
“doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).          If a petitioner can
overcome these obstacles and show that counsel’s performance fell below
constitutional standards, he must then show that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Because
of AEDPA, it is not enough for a habeas petitioner to show that a state court’s
finding of no prejudice was wrong; the state court’s decision has to be an
unreasonable application of the second Strickland inquiry.          Williams v.
Taylor, 529 U.S. 362, 410 (2000).
      The district court held that “[t]he state court’s denial of this claim
readily withstands review.” While acknowledging that Texas case law would
have allowed Mamou’s attorney to exclude the testimony from victims of
uncharged offenses, see Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App.
1997) (allowing punishment phase testimony from victims of the charged
offense but not from victims of other, even related, crimes), the district court
concluded that the state court’s rejection of the Strickland claim was
reasonable.
      In rejecting the claim, the Texas court found neither deficient
performance nor prejudice. It emphasized that the jury already knew Mamou
was a drug dealer who had likely killed Gibson (the same night he abducted
Carmouche) and Williams (a year earlier) even though he was not on trial for
those crimes.   The state court thus found reasonable the explanation of
Mamou’s trial counsel that allowing the victim impact testimony was a
strategic choice that allowed him to call attention to Williams’s and Gibson’s
own history of violence and drug dealing. Indeed, defense counsel in closing
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                                 No. 17-70001
argument sought to “underscore the importance throughout the entirety of
[the] case about how drugs played a role in the events of the tragedy that you
heard about.” With respect to prejudice, the state court concluded that the
brevity of this victim impact testimony, its quality, and the other aggravating
evidence against Mamou meant that omission of the excludable testimony
would have not affected the outcome.
      Mamou challenges the state courts’ characterization of the victim
impact evidence.    He contends that the testimony of the victims’ family
members was heartrending, lengthy, and was not effectively countered by
trial counsel on cross examination. He also points to an instance in closing
argument when the prosecutor referred the jury to the victim testimony
about these other murders: “And when he pulled the gun and he fired and
killed Terrance and Anthony, he ripped those families apart. . . . And every
time he pulled that trigger, he answered that first special issue yes, yes, yes,
yes, yes. Seven times he answered it yes.”
      The district court nonetheless was correct to conclude that the state
court’s ruling was not unreasonable. As to prejudice, even if Mamou can
demonstrate that the victim impact testimony was more impactful than the
state court concluded, that is not enough to render the state court’s contrary
view unreasonable. See Knowles, 556 U.S. at 123 (“[B]ecause the Strickland
standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.”).
But he does not make that showing. Other than the one sentence quoted
above, which itself does not directly mention the testimony of the family
members, the closing argument did not refer to the testimony. And we go a
step further than AEDPA requires in concluding that the state court not only
took a reasonable view but the better one in finding no prejudice.           The
murders of Gibson and Williams likely had a substantial impact at the
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                                  No. 17-70001
punishment phase. But that evidence was admissible. The question is how
much the excludable victim impact testimony about those murders added. It
may have had some marginal benefit to the prosecution in further
highlighting the depravity of those uncharged murders, but not enough to
create a reasonable probability that the sentence would have been different if
trial counsel had objected to the testimony.
      Although the lack of prejudice is enough to defeat this claim, the state
court also reasonably concluded that trial counsel made a strategic choice to
allow the testimony because he calculated that the marginal benefit it
provided the prosecution was outweighed by emphasizing to the jury that all
the violence resulted from the drug trade, with its known risks. See Pape v.
Thaler, 645 F.3d 281, 291 (5th Cir. 2011) (“[A] ‘conscious and informed
decision on trial tactics and strategy cannot be the basis of constitutionally
ineffective assistance of counsel unless it is so ill chosen that it permeates the
entire trial with obvious unfairness.” (quoting Richards v. Quarterman, 566
F.3d 553, 564 (5th Cir. 2009))). Because the state court’s rejection of this
Strickland claim was not unreasonable, we must also deny habeas relief.
                                       B.
      Mamou’s second ineffective assistance claim is that his trial counsel
should have challenged certain testimony of the State’s ballistics expert,
Robert Baldwin. Baldwin linked magazine marks on an unfired cartridge
found at the site of Carmouche’s murder with used casings discovered at the
scene of the earlier Lantern Point shooting.
      The district court rejected this claim on a procedural ruling that, as an
example of how convoluted the procedural aspects of federal habeas law can
be, had three components. First, Mamou did not raise this claim in state
court, so it is unexhausted. 28 U.S.C. § 2254(b)(1). Second, because Texas
courts would apply the abuse of the writ doctrine if Mamou now tried to
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pursue the claim in a state habeas action, the district court held that the
claim was procedurally defaulted. Third, Mamou could not excuse the default
by establishing that his state habeas counsel was constitutionally deficient in
failing to raise the claim. See Martinez, 566 U.S. at 14.
         Mamou challenges the final step in this analysis, arguing that he can
show ineffective assistance of habeas counsel that overcomes the procedural
bar to his claim. Because any failure by habeas counsel to raise a claim
would result in the prejudice Strickland requires only if “there is a
reasonable probability that he would have been granted state habeas relief”
had the claim been asserted, Newbury v. Stephens, 756 F.3d 850, 872 (5th
Cir. 2014) (per curiam), the analysis of a Strickland claim involving habeas
counsel largely merges with the merits of the underlying claim about the
ineffectiveness of trial counsel. That is, Mamou must still show a reasonable
likelihood of success for his Strickland claim about trial counsel’s failure to
object to the magazine mark testimony.
         Mamou first tries to do so by arguing that state habeas counsel
performed only a cursory investigation that was limited to reviewing the trial
transcript and interviewing the jurors.           The district court, however,
recognized that the record belied Mamou’s claim. In particular, state habeas
counsel hired a ballistics expert to review the forensic evidence. The record
thus does not support Mamou’s contention that state habeas counsel
conducted an inadequate investigation of the ballistics evidence offered at
trial.
         Apart from any deficiencies in counsel’s investigation of the ballistics,
Mamou contends that state habeas counsel rendered ineffective assistance
because the flaws in Baldwin’s testimony should have been obvious. From
today’s vantage point, Mamou is able to point out errors in Baldwin’s
testimony. Most glaringly, it was based on the “individuation fallacy”—in
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                                  No. 17-70001
layman’s terms, this is the incorrect assumption that no two magazines will
produce the same markings on cartridges cycled through them. Critics of
magazine mark testimony argue it is not backed by statistics demonstrating
the rate of false positives and false negatives or any other proof that a given
magazine imprints a unique mark when used.                 See Adina Schwartz, A
Systemic Challenge to the Reliability and Admissibility of Firearms and
Toolmark Identification, 6 COLUM. SCI. & TECH. L. REV. 2 (2005).
      Yet the district court rejected these authorities as a basis for finding
that Mamou’s habeas counsel should have brought a claim challenging trial
counsel’s failure to object to the magazine mark testimony. It did so because
the evidence discrediting Baldwin’s testimony all originated after Mamou’s
trial and state habeas proceedings. This includes the academic literature
criticizing magazine mark testimony, a disciplinary action against Baldwin in
2003, and Baldwin’s recanting his expert testimony in another capital case,
Williams v. Quarterman, 551 F.3d 352, 355–56 (5th Cir. 2008).
      Mamou responds that the flaws in Baldwin’s testimony were apparent
prior to these events. He cites the affidavit of a firearms expert who opined
that a competent ballistics expert would have spotted these weaknesses in
Baldwin’s testimony for Mamou and could have pointed them out to the jury
or enabled his counsel to do so on cross examination. He also insists that the
individuation fallacy underlying Baldwin’s testimony was not a novel
discovery, but rather a conceptual error that becomes apparent when logic
and a rudimentary understanding of the scientific method are brought to
bear on the topic. See Schwartz, supra at 4. After all, the error was revealed
in a law review article, not a scientific journal.
      But we need not determine whether the failure of state habeas counsel
to challenge the magazine mark testimony rose to the level of ineffective
assistance. Even assuming it did, raising that Strickland claim would not
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                               No. 17-70001
have resulted in state habeas relief because excluding the magazine mark
testimony likely would not have made a difference at trial. Mamou’s attack
on the magazine mark evidence leaves unchallenged other forensic evidence
linking bullets taken from the bodies of Gibson and Holley at Lantern Point
to the bullets extracted from Carmouche’s body. Baldwin testified that the
bullets shooting all three victims had the same caliber, the same number of
“lands and grooves,” and a right twist.       This unchallenged testimony
accomplished the same purpose as Baldwin’s now-challenged magazine mark
testimony: connecting the murder of Carmouche to the shootings at Lantern
Point. And that forensic evidence was merely one piece in the evidentiary
puzzle that corroborated other damning evidence: testimony that Mamou was
the last person seen with Carmouche, Mamou’s statements to Dodson
boasting about shooting Carmouche, and Mamou’s statements to his friend
Anthony Trail that he had taken the Lexus and was in it “with a female” who
“was giving him oral sex.” Trail also testified that after he took Mamou to a
bus station so he could return to Louisiana, Mamou called him and asked
“what had been on the news about a missing person, Mary Carmouche.”
Because the magazine mark testimony was redundant of other, unimpeached
forensic evidence proving the same thing, and other evidence also strongly
pointed to Mamou’s guilt, Mamou cannot establish prejudice from any failure
to raise this Strickland claim to the state habeas court.     As a result, he
cannot overcome the procedural bar to his underlying claim that trial counsel
should have objected to the magazine mark testimony.
                                    ***
     We AFFIRM the judgment of the district court.




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