                       REVISED October 15, 2009

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

                                                                FILED
                                                           September 17, 2009
                                  No. 08-70049
                                                          Charles R. Fulbruge III
                                                                  Clerk
LINDA ANITA CARTY,

                                            Petitioner - Appellant,
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
                                    Respondent - Appellee.



                 Appeal from the United States District Court
             for the Southern District of Texas, Houston Division


Before KING, DENNIS, and OWEN, Circuit Judges.
KING, Circuit Judge:
      A Texas jury convicted and sentenced to death petitioner–appellant Linda
Anita Carty for the intentional murder of Joana Rodriguez during the course of
a kidnaping of Rodriguez and her newborn son. The Texas Court of Criminal
Appeals affirmed the conviction and sentence and denied post-conviction relief.
Carty then filed this federal habeas petition under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. The district court
denied substantive relief, denied Carty’s request for an evidentiary hearing, and
dismissed her case. It then granted a certificate of appealability (“COA”) for two
substantive claims. The first is whether trial counsel rendered ineffective
                                      No. 08-70049

assistance by failing to notify Carty’s ostensible common-law husband of his
marital privilege not to testify. The second is whether trial counsel rendered
ineffective assistance by failing to present additional mitigation evidence in the
punishment phase. The district court also granted a COA for the procedural
issue that prevented adjudication of those substantive claims—whether Carty
exhausted state court remedies.1 Carty’s appeal is now before us. We affirm the
district court’s judgment denying Carty relief.
                          I. FACTS AND PROCEDURE
       The district court’s exhaustive opinion more than adequately documents
the factual background and procedural development of this case. See Carty v.
Quarterman (Carty Federal Habeas), No. 06-614, slip op. at 4–35 (S.D. Tex. Sept.
30, 2008). Here, we revisit only those facts relevant to our disposition of the
presently appealed issues and claims.
       Carty, a foreign national citizen of St. Kitts and thus the United Kingdom,
was indicted by a Texas grand jury for the kidnaping and intentional murder of
Rodriguez. Carty planned the kidnaping of Rodriguez and her baby, facilitated
its execution, and murdered Rodriguez on May 16, 2001. Although Carty
originally hired her own attorney, when her family could not pay his fees, the
Texas trial court appointed Jerry Guerinot and Windi Akins to represent her
(collectively, “trial counsel”).      Trial counsel met Carty for the first time
approximately two weeks before jury voir dire. They hired investigator John
Castillo and psychologist Dr. Jerome Brown to aid Carty’s defense. Investigator
Castillo began his work about two weeks before trial.

       1
         The court denied a COA for the remainder of Carty’s claims. In a separate opinion,
we denied Carty’s request for an additional COA. See Carty v. Quarterman, No. 08-70049, slip
op. (5th Cir. Aug. 28, 2009).

                                             2
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      The trial proceeded in two phases: guilt/innocence and punishment. The
evidence presented in the guilt/innocence phase revealed the following events.
Approximately three years before Rodriguez’s murder, Carty started living with
Jose Corona, and the parties now dispute whether they entered into a common-
law marriage. Corona testified that they lived together up until two weeks
before the murder, and, during that period, they represented to others that they
were husband and wife, as discussed in greater detail below. While they lived
together, Carty, who had a grown daughter, Jovelle Carty, told Corona three
times that she was expecting another child, but she did not allow him to attend
her prenatal doctor’s visits. In the first two instances, Carty eventually told him
that she had miscarried. Corona believed that Carty lied about the pregnancies.
At the beginning of May 2001, the month during which Rodriguez was
murdered, Corona decided to leave Carty, in part because of her lies about being
pregnant. When he told her that he was leaving, Carty again claimed that she
was pregnant. Corona, however, did not believe her and moved out. Throughout
May, Carty repeatedly called Corona to reconcile their relationship, claiming
that she was pregnant and that her due date was in the middle of May. On May
15, she called multiple times and told him she was going to have a baby boy the
next day, May 16. She called again on May 16—after she had murdered
Rodriguez—and confirmed that she was going to have the baby. When Corona
saw Carty later that day at the police station, after she had been arrested for
Rodriguez’s kidnaping and murder, he asked her if the baby had been born
already, and she told him “not yet.” Corona eventually found out that Carty had
never been pregnant.
      Other witnesses’ testimonies revealed Carty’s activities between Corona’s
departure and Rodriguez’s murder. In early May, Carty began moving her

                                        3
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things to a storage unit because the apartment lease was due to terminate at the
end of the month. Sherry Bancroft, an employee at Public Storage, testified that
Carty had an existing storage unit in their facility and rented a second one on
May 10. Two days later, she rented a third unit. That day, she told Bancroft
that she was already in labor and was expecting to give birth to a baby boy that
day. To Bancroft, however, Carty did not look like she was in labor. Carty
returned to the storage facility on May 15 in a Pontiac Sunfire. At that point,
she told Bancroft that she had birthed a son and that he was at home with his
father. She retrieved a baby blanket and two baby outfits from one of her
storage units.2
       Numerous witnesses testified about the kidnaping and murder that
occurred the next day, May 16.             Early in the morning on May 16, four
men—three of whom were later identified as Christopher Robinson, Carliss
“Twin” Williams, and Gerald “Baby G” Anderson—broke into the apartment
where Rodriguez lived with her husband (Raymond Cabrera), her infant son, and
her husband’s cousin (Rigoberto Cardenas). Cardenas testified that the men
demanded drugs and money. While the men were in the house, Cardenas heard
a cell phone ring. One of the men answered it and said: “We are here inside,”
and “Do you want it?” The man on the phone then yelled: “She’s outside, we got
to go.” The intruders tied up Cabrera and Cardenas and, now joined by Carty,
kidnaped Rodriquez and her baby.
       The testimony of Robinson and other individuals with first-hand
knowledge of the kidnaping and murder evidenced that Carty planned and



       2
        At least two additional witnesses testified that they knew Carty and that she had told
them in the days immediately before Rodriguez’s murder that she was expecting a baby.

                                              4
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orchestrated the crimes because she wanted Rodriguez’s baby. On Sunday, May
13, Carty began recruiting a group of people to help her abduct the baby. She
asked Robinson, Josie Anderson, and Marvin “Junebug” Caston to assist in a
“lick”—a burglary wherein they would break into an apartment and steal what
she claimed was approximately 200 pounds of marijuana. Carty brought them
to her apartment, which was in the same complex as and in close proximity to
Rodriguez’s apartment. From Carty’s apartment, they scoped out Rodriguez’s
apartment and familiarized themselves with the standard layout of apartments
in the complex. Carty told them that Rodriguez was pregnant with Corona’s
child; that “I’m going to get the baby. I’m going to . . . take the baby from
them. . . . I’m going to cut the baby out of the lady and take the baby”; and that
“she needed the baby, needed a baby, needed a baby, needed their baby, that she
needed the lady’s baby.” She repeated similar statements throughout the
planning of the crime. Because Josie Anderson, Robinson, and Caston were only
interested in stealing drugs and not in kidnaping Rodriguez’s baby, the plan was
for them to secure the drugs while Carty dealt with Rodriguez.
      On the night of Sunday, May 13, the group went to the apartment complex
to conduct the lick but soon aborted their attempt. Afterwards, Josie Anderson
and Caston decided that they would no longer participate. Carty nonetheless
persisted in her plan, and on Tuesday, May 15, she convinced Robinson, his
friend Williams, and Josie’s cousin Gerald Anderson to participate in the lick.
The new plan was for Carty to wait outside the apartment, and the men would
bring Rodriguez to her after they secured the drugs for themselves. After
midnight on May 16, 2001, Carty, Robinson, Williams, and Gerald Anderson left
6402 Van Zandt Street, a house that served as the group’s staging area. Carty
drove her car and served as a lookout.        After parking in a lot near the

                                        5
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apartments, she called Gerald Anderson and told him to start the lick. The men
kicked in the door of the apartment and tied up and beat Cabrera and Cardenas.
Carty called Anderson again and told him that she was coming inside. When she
entered the apartment, Robinson lied and told her that they had killed the men
(to prevent her from doing it). Robinson then left the apartment. A few minutes
later, Robinson saw Carty leave the apartment with the baby. Williams and
Gerald Anderson followed with Rodriguez and put her in the trunk of Robinson’s
car. They left the apartment complex, met at a storage unit, and transferred
Rodriguez to the trunk of Carty’s car. Both cars then returned to Van Zandt
Street.
      At Van Zandt Street, Carty demanded that the men tape up Rodriguez.
Robinson and Gerald Anderson refused, but Williams complied. He then closed
Rodriguez in the trunk of Carty’s car. At this point, the men were angry because
they had obtained little drugs or money in the lick; they believed that Carty had
set them up for a kidnaping that they did not want to commit. Hearing the
argument, Zebediah Combs, who lived at 6402 Van Zandt Street and did not
participate in the lick, came outside and demanded that everybody be quiet.
Carty said to him, “I got my baby. I got my baby.” After seeing Rodriguez in the
trunk of her car, Combs told Carty to move the car away from the house. Carty
refused, and Combs went back inside. Meanwhile, Robinson, Williams, and
Gerald Anderson went to make change for the money they had stolen.
      When they returned around 3:30 a.m. to 4:00 a.m., Carty was standing
partially in the trunk of her car and partially on the ground. Rodriguez was face
down in the trunk, and Carty had placed a plastic bag over her head. Robinson
ran up and pushed Carty away, but he could see that Rodriguez had stopped
breathing.   Robinson ripped the bag while attempting to remove it from

                                       6
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Rodriguez’s head. When Robinson confronted Carty about why she had killed
Rodriguez, Carty replied that it was her baby, her husband’s baby.
      During the police investigation of the burglary and kidnaping, a tenant in
Carty’s apartment complex, Florence Meyers, told police about an encounter
with Carty the day before that was suspicious. On the evening of May 15,
Meyers saw Carty sitting in the Pontiac Sunfire in the parking lot of the
apartment complex. Carty told Meyers that she was pregnant and that the baby
was going to be born the next day. There was an infant’s car seat in the back
seat of Carty’s car. To Meyers, Carty did not appear to be pregnant. Meyers’s
statement caused the police to suspect Carty had committed the kidnaping.
      After taking Meyers’s statement, the police called Carty at around 9 a.m.
on May 16 and pretended to respond to a complaint she had filed a few days
earlier. She agreed to meet them. At the time of the call, Carty was in a car
with Robinson and the baby. Robinson drove Carty to meet the police, and she
agreed to go with them to a police station. When Carty did not return from the
meeting, Robinson went back to Van Zandt Street with the baby.
      Upon arriving at the police station, Carty told the police that she was a
confidential Drug Enforcement Agency (“DEA”) informant, and asked to speak
with her DEA agent, Charlie Mathis. A few days before the kidnaping and
murder, Carty had called Mathis and told him about being pregnant. The police
then asked Mathis to help them find out what Carty knew about Rodriguez and
the missing baby. Mathis told Carty she was in a lot of trouble and advised her
to help the police.
      After speaking with Mathis, Carty gave a statement to the police, telling
them that she had loaned her daughter’s car and rental car to some people she
believed might be involved in the kidnaping. She directed officers to the house

                                       7
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at 6402 Van Zandt Street. When the police arrived, a black Chevrolet Cavalier
belonging to Carty’s daughter Jovelle, and the Pontiac Sunfire, which was rented
in Jovelle’s name, were both parked at the house. Police found the kidnaped
baby boy alive in the Cavalier. They found Rodriguez’s body in the trunk of the
Sunfire. Her arms and legs were bound with duct tape, her mouth and nose
were also taped, and she had a ripped plastic bag over her head which appeared
to be taped around the bottom. A forensic expert later determined the cause of
death to be homicidal suffocation. Carty’s fingerprints were in both cars. Inside
the cars, the officers found, inter alia, baby clothes, baby blankets, a diaper bag
containing infant formula, and other baby paraphernalia. The diaper bag also
contained a live round of .38 caliber ammunition. A .38 caliber gun was found
by police in a drawer inside the house at 6402 Van Zandt Street; it was similar
in appearance to a .38 caliber gun that Corona saw Carty possess before he left
in early May.
      The police traced Carty’s cell phone records, which led them to Gerald
Anderson. He eventually gave a statement and was charged with capital
murder. Carty’s cell phone records showed eleven calls logged between Carty’s
phone and the cell phone number that led police to Gerald Anderson from 12:50
a.m. and 2:50 a.m. on May 16. Seven of those calls were placed between 1:09
a.m. and 1:14 a.m., the time of the kidnaping.
      Based on this and other evidence, the jury returned a verdict of guilty
against Carty on the charge of capital murder.




                                        8
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       During the subsequent punishment phase, both the state and Carty
presented evidence relevant to Texas’s “special issues.”3 The state primarily
presented evidence about Carty’s criminal history to show her ongoing
dangerousness. For example, in 1992, Carty was arrested for auto theft when
she rented a car that she never paid for or returned. To rent the car, Carty
identified herself as an FBI agent, so the FBI also investigated her for
impersonating an officer. Carty pleaded guilty and was placed on a ten-year
term of probation (she was still on probation when arrested for murdering
Rodriguez). The state agreed to dismiss the auto theft charge if Carty would act
as an informant. Although she provided information leading to two arrests, her
supervising officer concluded that she was an uncontrollable informant. Her
service came to an end when she was arrested on drug charges. Police officers
had been observing a large drug transaction when Carty entered the house
under observation with a package. When she left, the police followed her. She
led them on a high-speed chase. During the chase, Carty attempted to run over
an officer. The police eventually recovered two pistols, $3,900 in cash, and fifty
pounds of marijuana from her car.4
       Trial counsel countered with testimony showing that Carty would not be
a future danger and that mitigating circumstances existed. To dampen the
impact of the prosecutor’s evidence of Carty’s future dangerousness, trial counsel


       3
          In Texas, jurors must answer three “special issues” in favor of the death penalty for
the court to impose capital punishment: (1) whether the defendant would “commit criminal
acts of violence that would constitute a continuing threat to society”; (2) whether the defendant
actually caused or intended to cause the death of the victim; and (3) whether mitigating
evidence warranted “the imposition of life imprisonment rather than a death sentence.”
       4
       The prosecution also presented victim impact testimony from Rodriguez’s family (her
husband Cabrera, her sister, and her father).

                                               9
                                  No. 08-70049

enlisted the services of Dr. Jerome Brown, a clinical psychologist who evaluated
Carty, interviewed her mother and daughter, and reviewed police interrogation
tapes. He testified, inter alia, that Carty did not have problems with anger or
aggression, was not prone to violence, and was not predatory towards other
people. She had a stable family life and employment history. She did not have
disciplinary problems as a child and described her upbringing as spoiled. Dr.
Brown noted that Carty had a grown daughter and had given another child up
for adoption when she became pregnant after a sexual assault. Dr. Brown
opined that she would not be capable of committing the crime of which she was
convicted, that her clinical profile indicated that she was not antisocial, and that
she lacked characteristics normally associated with criminals. The prosecution,
however, cross-examined Dr. Brown extensively to show that Carty was a liar.
Dr. Brown also admitted that Carty met some characteristics of a child abductor,
although on redirect he reaffirmed that she did not have traits commonly
associated with violent people.
      Trial counsel also presented testimony from Carty’s family to support the
mitigation special issue. Carty’s mother testified that Carty was a beloved
teacher in St. Kitts and that her former students still asked about her. Carty
did not have a history of criminality while on St. Kitts, was kind and generous
to others, and was never cruel to people or animals. Jovelle, Carty’s daughter,
testified that her mother was sweet and kind, was not mean, and had not
harmed anyone. She had worked hard her whole life to put Jovelle through
school. Isalyn DeSouza, Carty’s closest sister, testified that she had never
known her sister to be violent, destructive, or cruel.
      Based on this evidence, the jury answered all three of Texas’s special
issues in favor of sentencing Carty to death. The trial court entered her

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conviction and death sentence on February 21, 2002. The Texas Court of
Criminal Appeals (“CCA”) affirmed Carty’s conviction and sentence. See Carty
v. State, No. 74295, 2004 WL 3093229, at *1 (Tex. Crim. App. Apr. 07, 2004).
      The trial court appointed counsel to represent Carty during the state
habeas process. Carty timely applied for state habeas relief on August 6, 2003.
One of Carty’s claims was that trial counsel rendered ineffective assistance by
failing to advise her of her right, as a citizen of St. Kitts and the United
Kingdom, to consular notification and assistance. See Vienna Convention on
Consular Relations (“VCCR”), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
The British Government became aware of Carty’s citizenship and filed a motion
on February 2, 2004, seeking time to retain counsel who could amend Carty’s
application. Although recognizing that Carty was not authorized to raise new
issues at that late date, it nonetheless asked the state habeas court to grant a
period of 180 days in which “any amendment or supplement filed in that time
should be accepted without the application of [TEX. CODE CRIM. PROC. ANN. art.]
11.071 [§] 5(f).” The state habeas court denied this application for want of
jurisdiction.
      Carty’s habeas counsel filed a reply to the state’s answer and later filed a
further response, again asking the court to allow the British Government to
intervene. The state habeas court did not issue an order on her request. The
British Government, however, hired attorneys from Baker Botts, L.L.P., who
entered an appearance unopposed on May 28 to serve as Carty’s co-counsel.
Carty’s new co-counsel met with the state habeas judge and the prosecutors to
discuss their role. They agreed to submit any additional pleadings to the court
by November 1, 2004, the same day that both sides were due to submit their


                                       11
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proposed findings of fact and conclusions of law. The parties dispute, however,
whether they agreed to permit Carty to raise entirely new claims at that time.
Carty asserts that Jane Scott, a Harris County assistant district attorney, and
Roe Wilson, Harris County’s chief of the postconviction writs division, agreed
that co-counsel would have approximately six months to familiarize themselves
with Carty’s case and make any additional filings, including proposed findings
of fact and conclusions of law, by November 1, 2004. The state denies that any
such agreement included permission to raise new claims.         Absent a proper
extension, November 1, 2004 was well after the deadline for Carty to file new
claims. See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 4(a) (Vernon 2007).
      On November 1, Carty’s co-counsel filed an Additional Further Response
to the state’s answer. On the same day, both parties filed their proposed
findings of fact and conclusions of law. The Additional Further Response stated,
“[C]ounsel for Carty and the State agreed to additional time for Carty’s counsel
to examine Carty’s claims further. The Court approved this agreement.” In the
Additional Further Response, Carty raised entirely new claims, supported by
exhibits and appendices. The new claims included the two substantive claims
that Carty maintains in this appeal—whether trial counsel rendered ineffective
assistance (1) by failing to notify Corona of his marital privilege not to testify
and (2) by failing to present additional mitigation evidence in the punishment
phase.
      On November 30, 2004, the state trial court heard argument regarding
Carty’s habeas application. During that hearing, co-counsel addressed the
Additional Further Response on behalf of Carty and argued about claims
contained only therein. In particular, co-counsel raised the claims now on
appeal. The state did not object and the state habeas court did not mention any

                                       12
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delinquency in the filings of those claims. Nonetheless, the court only reviewed
the claims Carty raised in her initial application and recommended that the
CCA adopt the state’s findings of fact and deny those claims, see Ex Parte Carty,
No. 877592-A, order (Tex. Dist. Ct. Dec. 2, 2004), a recommendation that the
CCA adopted, see Ex Parte Carty, No. WR-61,055-01, slip op. at 2 (Tex. Crim.
App. Mar. 2, 2005). Neither state court addressed the claims she raised for the
first time in her Additional Further Response. Carty did not bring this omission
to the attention of either court.
      Having found no success in the Texas courts, on February 24, 2006, Carty
filed an application in federal district court for a writ of habeas corpus under
§ 2254. She presented approximately twenty issues to the district court. The
district court initially denied the state’s motion for summary judgment and
ordered briefing on certain issues, including whether Carty exhausted state
court remedies for the claims she raised for the first time in her Additional
Further Response.      After briefing, the state renewed its motion.       Carty
responded and requested an evidentiary hearing. Without a hearing, the district
court concluded that Carty failed to raise a triable issue of fact, granted the
state’s motion for summary judgment, and dismissed the case. See Carty
Federal Habeas, No. 06-614, slip op. at 142. The district court held that Carty
failed to exhaust the claims raised for the first time in her Additional Further
Response and that, in any case, her substantive claims were not meritorious.
      Carty then moved for a COA. The district court granted Carty a COA on
whether she failed to exhaust the claims that she raised for the first time in her




                                        13
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Additional Further Response5 and on whether trial counsel rendered ineffective
assistance by failing to notify Corona of his spousal privilege and by failing to
produce more mitigation evidence during the punishment phase of trial. It
denied a COA for all other claims. See Carty v. Quarterman (Carty COA),
No. 06-614, slip op. at 2–3 (S.D. Tex. Dec. 16, 2008). Carty now appeals the
claims for which the district court granted her a COA.
                         II. STANDARDS OF REVIEW
      We review de novo whether Carty exhausted available state court
remedies and whether the state waived exhaustion. See Taylor v. Cain, 545 F.3d
327, 332–33 (5th Cir. 2008); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).
We apply the same de novo review to Carty’s claims of ineffective assistance of
counsel. See Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009); Smith
v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008). Both types of claims present
mixed questions of law and fact. See Ward v. Dretke, 420 F.3d 479, 486 (5th Cir.
2005) (ineffective assistance of counsel); Wilder, 274 F.3d at 259 (exhaustion).
When examining mixed questions of law and fact, our de novo standard requires
that we “independently apply[] the law to the facts found by the district court,
as long as the district court’s factual determinations are not clearly erroneous.”
Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005); see also Wilder, 274 F.3d
at 259.
      Our de novo review is governed by AEDPA. Under AEDPA, a federal court
may not grant habeas relief after a state court adjudicates the merits of a claim
unless that adjudication (1) “resulted in a decision that was contrary to, or


      5
        As part of their briefing on the issue of exhaustion, both parties have addressed
whether the state waived the defense.

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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).
“Therefore, neither the district court nor this Court may grant a writ of habeas
corpus based solely on a finding of error by a state court.” Evans v. Cockrell, 285
F.3d 370, 374 (5th Cir. 2002). Yet, the AEDPA-mandated deference to state
court decisions does not apply if the petitioner properly exhausted his claim by
raising it in the state court, but the state court did not adjudicate that particular
claim on the merits. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.
2003). We instead review such claims de novo without applying AEDPA-
mandated deference. Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003); see also
Jones v. Jones, 163 F.3d 285, 299–300 (5th Cir. 1998) (applying de novo review
to an ineffective assistance of counsel claim that the petitioner raised in state
court, but the state court did not adjudicate on the merits). In this case, the
CCA did not address Carty’s claim of trial counsel’s ineffective assistance in
failing to inform Corona of his marital privilege. It adjudicated part, but not all,
of her claim of ineffective assistance in failing to investigate and present
additional mitigation evidence. We review under AEDPA’s heightened standard
the portion of Carty’s claim of trial counsel’s ineffective assistance in presenting
mitigation evidence that the CCA adjudicated on the merits; the rest of her
claims, including whether she exhausted them in state court, we review de novo.
                               III. DISCUSSION
      A. Exhaustion




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                                       No. 08-70049

       Carty raised most of her present claims for the first time in her Additional
Further Response.6 The state habeas court did not address these claims, which
raises the issue of whether Carty exhausted them in state court. Under AEDPA,
“[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). “This longstanding exhaustion requirement
is not jurisdictional, but ‘reflects a policy of federal-state comity . . . designed to
give the State an initial opportunity to pass upon and correct alleged violations
of its prisoners’ federal rights.’” Anderson v. Johnson, 338 F.3d 382, 386 (5th
Cir. 2003) (quoting Wilder, 274 F.3d at 260). When undertaking review, “we ask
not only whether a prisoner has exhausted his state remedies, but also whether
he has properly exhausted those remedies, i.e., whether he has fairly presented
his claims to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999);
see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To provide the State with the
necessary opportunity, the prisoner must fairly present his claim in each
appropriate state court . . . .” (quotation marks and citations omitted)); Mercadel
v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (“The exhaustion requirement is
satisfied when the substance of the federal habeas claim has been fairly
presented to the highest state court.”). To fairly present the claims, “‘the
applicant must present his claims in a procedurally correct manner.’” Beazley
v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001) (quoting Deters v. Collins, 985 F.2d
789, 795 (5th Cir. 1993)); see also Mercadel, 179 F.3d at 275 (“[A] claim is not

       6
         For the portion of Carty’s claim related to trial counsel’s deficient presentation of
mitigating evidence that she raised in her initial application for habeas relief in state court,
this discussion does not apply. We review that portion on the merits below.

                                              16
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exhausted unless . . . the applicant present[s] his claims before the state courts
in a procedurally proper manner according to the rules of the state courts.”
(quotation marks and citations omitted)). Fair presentation does not entertain
presenting claims “for the first and only time in a procedural context in which
its merits will not be considered unless there are special and important reasons
therefor.”   Castille v. Peoples, 489 U.S. 346, 351 (1989) (quotation marks
omitted).    The purposes of the exhaustion requirement “would be no less
frustrated were we to allow federal review to a prisoner who had presented his
claim to the state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it.” Edwards v.
Carpenter, 529 U.S. 446, 453 (2000).
      Texas’s habeas statute requires an inmate seeking relief from a judgment
imposing a penalty of death to file an application for a writ of habeas corpus in
the trial court, “returnable to the [CCA],” by the later of two dates: “the 180th
day after [the appointment of counsel]” or “the 45th day after the date the state’s
original brief is filed on direct appeal.” TEX. CODE CRIM. PROC. ANN. art. 11.071
§ 4(a). This deadline is subject to a single, discretionary 90-day extension. Id.
§ 4(b). The state trial court is not authorized to consider any subsequent habeas
application unless the applicant shows the statutory equivalent of cause and
prejudice or actual innocence. Id. § 5(a). Texas courts usually treat an amended
pleading filed after the deadline as a new habeas action: “If an amended or
supplemental application is not filed within the time specified under Section 4(a)
or (b), the court shall treat the application as a subsequent application under
this section.” Id. § 5(f). The state statute establishes detailed procedures for
processing such subsequent applications. See id. § 5(b), (c).


                                        17
                                 No. 08-70049

      Limiting habeas claims to those timely filed in the initial application
encourages efficient, all-inclusive applications. Ex parte Kerr, 64 S.W.3d 414,
418 (Tex. Crim. App. 2002). As such, a dismissal for an abuse of the writ in the
form of a tardy application is an adequate and independent state-law bar to
federal review. Whitaker v. Quarterman, 200 F. App’x 351, 356–57 (5th Cir.
2006).
      In this case, Carty timely filed her initial habeas application on August 6,
2003. After the filing period expired, the state trial court denied the British
Government the opportunity to amend Carty’s application without treating the
amended application as a subsequent application pursuant to article 11.071
§ 5(f). With the assistance of co-counsel, Carty nonetheless filed her Additional
Further Response on November 1, 2004, raising new claims for the first time.
The trial court and CCA did not address those claims; however, they also did not
follow the procedures for handling subsequent applications as established in
article 11.071 §§ 5(b), (c), and (f), and did not dismiss the Additional Further
Response for abuse of the writ. Furthermore, although the state did not move
to treat the Additional Further Response as a subsequent application, Carty did
not raise with the state courts their failure to consider the claims contained in
her Additional Further Response.
      Carty does not and cannot argue that her Additional Further Response
was timely; instead, she urges that the parties entered into an agreement
(sanctioned by the state habeas court) to permit her to add new claims in that
filing that article 11.071 § 4(a) would otherwise bar. As the parties have framed
it, the exhaustion question has three components: (1) did the parties and state
habeas court agree to permit late-filed claims; (2) under Texas law, can the


                                       18
                                       No. 08-70049

parties extend the filing deadline by agreement; and (3) did the state waive its
exhaustion defense.
       For the first issue, the district court found that Carty did not show an
agreement in fact to permit late-filed claims in the Additional Further Response.
Carty Federal Habeas, No. 06-614, slip op. at 48 (“Nothing in the record . . .
suggests that the parties and state habeas court agreed to suspend TEX. CODE
CRIM. PROC. [ANN.] art. 11.071 § 5’s limitation on tardy amendments.”); id. at 53
(“Even if an agreement allowed her to file something, [Carty] has not shown that
the parties agreed to suspend the application of TEX. CODE CRIM. PROC. [ANN.
art.] 11.071 § 5(f), as was previously requested.”). We hold that the district
court’s factual conclusion was not clearly erroneous.7 Although Carty has
pointed to some record evidence showing some agreement regarding co-counsel’s
submission of the Additional Further Response, she has not pointed to sufficient
evidence to call into question the district court’s conclusion that there was no
agreement to permit tardy claims in that document. While statements in Carty’s
Additional Further Response and by co-counsel during oral argument before the
state habeas court show that her habeas counsel proceeded as if the claims
would be permitted, those statements permit only the weakest of inferences of
any agreement.        Co-counsel’s generic statements of timeliness are hardly
exceptional and are no basis on which to conclude an agreement existed. On the
other hand, the state’s failure to object to those statements or to the new claims


       7
         The district court based its decision in part on an affidavit presented by the state’s
federal habeas counsel, Neelu Sachdeva, who attested that “[t]here was no agreement between
the State and habeas counsel concerning habeas counsel filing ‘Additional Further Response
to Respondent’s Original Answer’ and no agreement between the State and habeas counsel as
to the substance of such document.” Sachdeva, however, has not shown that she had firsthand
knowledge of the meeting between Carty’s habeas counsel and the state’s counsel.

                                              19
                                        No. 08-70049

in general raises a stronger inference of an agreement, but that inference is
counterbalanced by Carty’s failure to follow-up with either state habeas court
when both the trial court and the CCA did not rule on her new claims.
Similarly, the state trial court’s failure to submit the Additional Further
Response to the CCA for review pursuant to article 11.071 § 5 also permits an
inference that the new claims therein were not considered tardy by the trial
court, but that inference is again counterbalanced by that court’s and the CCA’s
decision not to rule on those new claims. Carty presents no other record
evidence supporting her assertion that an agreement permitted her to file new
claims in the Additional Further Response. Thus, Carty has failed to dislodge
the district court’s findings of fact. Having affirmed the district court’s finding,
we need not weigh the more difficult second issue—whether Texas statutory law
permits the parties, with the tacit approval of the court, to agree to set aside the
statutory deadline contained in article 11.071 § 4(a).8

       8
          For this issue, Carty argues that state habeas courts may set aside the time line in
certain circumstances, especially where the parties rely on the court. She cites cases in which
courts have permitted or considered claims filed outside of the initial application. See, e.g.,
Coleman v. Dretke, 395 F.3d 216, 220 (5th Cir. 2004); Ex parte Ramos, 977 S.W.2d 616, 617
(Tex. Crim. App. 1998); Ex parte Jennings, Nos. AP-75,806, 75,807, 2007 WL 4377072, at *1
(Tex. Crim. App. Dec. 12, 2007); see also Bagwell v. Dretke, 372 F.3d 748, 755–56 (5th Cir.
2004); Riley, 339 F.3d at 318. These case are distinguishable. In Jennings, 2007 WL 4377072,
at *1, the CCA treated the supplement to the application as a successive petition and concluded
that it met an exception to the successive writ bar. Here, the CCA did not rule that Carty’s
Additional Further Response qualified under an exception. In Ramos, 977 S.W.2d at 617, the
state habeas court miscalculated the deadline for filing an initial application, so the prisoner’s
initial application was timely according to the court order but not under § 4(a). Here, no such
mistake occurred, and Carty timely filed her initial application. Finally, Coleman, 395 F.3d
at 220, was not a death penalty case; thus, Texas Code of Criminal Procedure art. 11.07 (which
does not contain deadlines), not article 11.071 (which contains deadlines), applied.
Furthermore, in Riley and Bagwell, we defined some of the ways in which a petitioner may
exhaust a claim, but did not consider whether the claims were properly before the state habeas
court. At best, the cases cited by Carty stand for the unremarkable proposition that in certain
circumstances that do not exist in fact in this case, state courts have carved exceptions to the

                                               20
                                       No. 08-70049

       Carty also argues that the state waived its exhaustion defense. Under
AEDPA, the state may waive the exhaustion requirement through an express
statement by counsel:          “A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the requirement
unless the State, through counsel, expressly waives the requirement.” 28 U.S.C.
§ 2254(b)(3). Although AEDPA requires an express waiver, it “does not require
‘magic words’ in order for a state to expressly waive exhaustion.” D’Ambrosio v.
Bagley, 527 F.3d 489, 497 (6th Cir. 2008).9 “The touchstone for determining
whether a waiver is express is the clarity of the intent to waive.” Id. In Bledsue
v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999), we considered whether such a
waiver had occurred. There, the state admitted, in its original answer to the
federal habeas petition, that “‘Bledsue has sufficiently exhausted his state
remedies.’” Id. We held that “the state has waived any independent exhaustion
argument, as well as the exhaustion argument included within the doctrine of
procedural default.” Id. In McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984)
(en banc), we reached the opposite conclusion. In that case, we held that the
state did not make an express waiver because “its pleading asserted only that
it ‘believed’ that [the applicant] had exhausted state remedies.” Id. Although
we held that this was not an express waiver, we concluded that it was “at least


time lines of article 11.071 § 4(a).
       9
         In D’Ambrosio, the Sixth Circuit looked in depth at the concept of express waiver, and
held that “[t]he warden expressly waived the exhaustion requirement because her counsel’s
conduct during the district court proceedings manifested a clear and unambiguous intent to
waive the requirement.” 527 F.3d at 495–96. It clarified that “this is not a case in which the
State simply failed to raise the exhaustion requirement in the district court” and that the fact
that “the warden participated in discovery and moved to expand the record” did not “indicate,
by itself, that the warden expressly waived the exhaustion requirement, as [the applicant]
argues.” Id. at 497.

                                              21
                                         No. 08-70049

the equivalent of failure to assert the defense of non-exhaustion.” Id. We also
approved of the Eleventh Circuit’s treatment of a similar statement, which that
court determined to be “closely related to an express waiver.” Id. at n.22 (citing
Thompson v. Wainwright, 714 F.2d 1495, 1502 (11th Cir. 1983)).
       In this case, the parties dispute whether the state’s statements and actions
before the district court expressly waive exhaustion. The state argued to the
district court in its motion for summary judgment that
              All but one of Carty’s claims appear to be exhausted.
       Nevertheless, Carty fails to establish that she is entitled to habeas
       relief. Carty’s claim of trial court error based on Crawford v.
       Washington, 541 U.S. 36 (2004), was never raised in state court. As
       a result, the claim is unexhausted and procedurally defaulted.
       Carty cannot overcome this procedural hurdle where, as here, she
       does not acknowledge exhaustion deficiencies or attempt to
       establish cause and prejudice as might serve to excuse her default.
       For those remaining claims which appear exhausted, Carty fails to
       demonstrate that the state court’s adjudication was both incorrect
       and objectively unreasonable, that her claims merit relief, or that
       relief is not precluded under Teague v. Lane, 489 U.S. 288 (1989).
In the section entitled “Statement Regarding Exhaustion,” the state also
announced that “[t]he Director believes that Carty’s claim of trial court error
under Crawford v. Washington is unexhausted.” These express statements show
that the state treated only one claim, not presently at issue on appeal, as
unexhausted. The rest, including the claims on appeal, it expressly treated as
exhausted.10 Thus, the district court’s cursory conclusion that the state has not

       10
          The state does not argue that its assertion of the defense of failure to exhaust after
prompting by the district court preserved that defense if it had already expressly waived it.
The district court has the ability to sua sponte raise procedural defenses like failure to exhaust;
however, in the face of an express—as opposed to inadvertent—waiver, the district court
typically abuses its discretion by raising a waived defense. See Magouirk v. Phillips, 144 F.3d
348, 359 (5th Cir. 1998) (“A state’s purposeful waiver may also pose an obstacle to sua sponte

                                               22
                                        No. 08-70049

explicitly waived exhaustion was erroneous as a matter of law. See Carty
Federal Habeas, No. 06-614, slip op. at 52.                 The state clearly considered
exhaustion as a defense and chose not to exercise that defense for the close issue
of whether Carty exhausted the claims contained in her Additional Further
Response. The state has waived exhaustion, but in any case, Carty’s substantive
claims lack merit.
       B. Ineffective Assistance of Counsel
       Carty contends that her trial counsel’s assistance was ineffective. The
Sixth Amendment guarantees a criminal accused the right to assistance of
counsel, and “the right to counsel is the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).                             “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). Under the Strickland standard, the Sixth
Amendment right to effective assistance of counsel “is denied when a defense
attorney’s performance falls below an objective standard of reasonableness and
thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
“Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at
700.




reliance upon a procedural default, and the nature of the state’s alleged ‘waiver’ should be
given consideration by the district court. . . . Where omission is the result of a purposeful or
deliberate decision to forgo the defense, the district court should, in the typical case, presume
that waiver to be valid.”).

                                              23
                                   No. 08-70049

        “The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms,” by reference to “all the
circumstances.” Id. at 688; see also Sonnier v. Quarterman, 476 F.3d 349, 357
(5th Cir. 2007) (same). “Prevailing norms of practice as reflected in American
Bar Association standards and the like . . . are guides to determining what is
reasonable . . . .” Strickland, 466 U.S. at 688. In all cases, “[j]udicial scrutiny
of counsel’s performance must be highly deferential” and must avoid second-
guessing. Id. at 689. We avoid the distorting effects of hindsight. Dowthitt v.
Johnson, 230 F.3d 733, 743 (5th Cir. 2000). “We 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.” Id. (quotation
marks and alterations omitted).
        Sufficient prejudice requires a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694. The deficient assistance must be “so
serious as to deprive [her] of a fair trial, a trial whose result is reliable.” Id. at
687.
        “It bears repeating that,” where the state habeas court ruled on the
petitioner’s ineffective assistance of counsel claim, “the test for federal habeas
purposes is not whether [the petitioner] made [the required] showing.” Schaetzle
v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). “Instead, the test is whether the
state    court’s   decision—that      [the    petitioner]   did   not    make     the
Strickland-showing—was contrary to, or an unreasonable application of, the
standards, provided by the clearly established federal law (Strickland), for


                                         24
                                        No. 08-70049

succeeding on [the petitioner’s ineffective assistance of counsel] claim.” Id. With
these standards in mind, we now turn to Carty’s claims of ineffective assistance
of counsel.
              1. Failure to notify Corona of his marital privilege
       Carty asserts that trial counsel rendered ineffective assistance by failing
to interview Corona and notify him of his right to assert his marital privilege not
to testify against Carty. Under Texas law, the spouse of the accused has the
right to refuse to testify against the accused in a criminal case.                     TEX. R.
EVID. 504(b)(1).11 Nonetheless, the privilege is the spouse’s, not the accused’s;
the spouse may testify voluntarily for the state. Id.
       Corona testified during the prosecution’s case in chief. As discussed in
greater detail above, he testified that Carty repeatedly claimed that she was
pregnant, that none of those purported pregnancies resulted in the birth of a
child, that he left her in May 2001, and that he did not believe Carty when she
told him that she was pregnant in May 2001—shortly before she kidnaped and
murdered Rodriguez. The prosecution emphasized his testimony to explain
Carty’s motive and provide the context for her otherwise inexplicable crime.
       If permitted to refuse to testify, Corona attested that he would have
exercised the option:
       I did not want to get involved in the trial or to testify against Linda,
       but when the prosecutor’s office called me to testify, I thought that
       I had to testify and that I had no other choice. Neither Mr. Gerry
       Guerinot nor Ms. Windi Akins talked to me before I testified at
       Linda’s trial. It was never explained to me before I testified that in

       11
          Rule 504(b)(1) provides: “In a criminal case, the spouse of the accused has a privilege
not to be called as a witness for the state.” “The privilege not to testify may be claimed by the
person or the person’s guardian or representative but not by that person’s spouse.” TEX. R.
EVID. 504(b)(3).

                                               25
                                 No. 08-70049

      Texas there is a marital privilege and that under that privilege I
      had the right to refuse to testify at Linda’s trial. If Linda’s
      attorneys had explained to me or informed me about this marital
      privilege, I would have refused to testify at Linda’s trial unless
      Linda’s attorneys had asked me to do so.
      Trial counsel neither informed Corona of the potential availability of a
marital privilege nor interviewed him to establish the factual predicate.
Although Corona was on the state’s witness list, Guerinot admitted that, “[i]n
my representation of Linda, I did not contact her husband Jose Corona prior to
trial. I assumed that my investigator John Castillo would speak with him.”
Castillo, however, “never spoke to Corona.” Guerinot also conceded that “I never
attempted to inform Jose Corona that he had the right as her husband to not
testify.”
      The district court held that “[z]ealous counsel should have interviewed
Corona before trial and provided him the information necessary to try exerting
[sic] the marital exemption.” Carty Federal Habeas, No. 06-614, slip op. at 97.
It held, however, that trial counsel’s deficiency did not sufficiently prejudice
Carty’s defense to warrant relief.     We agree that although trial counsel
performed objectively unreasonably by failing to interview Corona to determine
if he could or would assert a marital privilege, that omission did not prejudice
Carty’s defense.
      The state does not disagree that trial counsel’s failure to inform Corona of
the potential availability of the marital privilege fell below the objective
standard of reasonableness; instead, it argues only that Carty suffered no
Strickland prejudice as a result of trial counsel’s deficient investigation. The
state provides two reasons why Carty was not sufficiently prejudiced, both of
which she disputes. First, Corona was not Carty’s common-law husband, so the

                                       26
                                      No. 08-70049

state trial court would not have permitted him to assert the marital privilege.
Second, in any case, Corona’s testimony did not render the jury’s guilty verdict
unreliable.
       Both Corona and Carty agree that they shared a common-law marriage.
“Common law marriages have been recognized in Texas since 1847.” Russell v.
Russell, 865 S.W.2d 929, 931 (Tex. 1993). The elements of a common-law or
informal marriage, as codified in § 2.401 of the Texas Family Code, are “(1) an
agreement to be married, (2) after the agreement, the couple lived together in
[Texas] as husband and wife, and (3) the couple represented to others that they
were married.” Id. at 932.12 “Proof of cohabitation and representations to others
that the couple are married may constitute circumstantial evidence of an
agreement to be married.” Id. at 933.
       The district court held that “the record does not show that, given the
information he had, that trial counsel could have made a plausible argument
that would allow Corona to exert [sic] his marital privilege.” Carty Federal

       12
          As currently codified, the Texas statute establishing informal marriage provides:
        (a) In a judicial, administrative, or other proceeding, the marriage of a man and
        woman may be proved by evidence that:
        ...
                 (2) the man and woman agreed to be married and after the agreement
                 they lived together in this state as husband and wife and there
                 represented to others that they were married.
        (b) If a proceeding in which a marriage is to be proved as provided by Subsection
        (a)(2) is not commenced before the second anniversary of the date on which the
        parties separated and ceased living together, it is rebuttably presumed that the
        parties did not enter into an agreement to be married.
TEX. FAM. CODE ANN. § 2.401. Regarding the presumption contained in subsection (b), the
state’s prosecution of Carty was commenced prior to the second anniversary of the date that
Carty and Corona separated; however, the state habeas application and present federal habeas
litigation were not commenced within that time frame. Because the state does not argue that
the adverse presumption contained in § 2.401(b) applies to this case, we do not rule on its
applicability to the present case.

                                            27
                                  No. 08-70049

Habeas, No. 06-614, slip op. at 96; see also id. at 97 (“[T]he mixed record does
not suggest that the trial court would have allowed Corona to avoid testifying.”).
The district court based its conclusion in part on the record of mixed statements
by Carty and Corona, on Carty’s statements about the termination of their
relationship after Corona moved out, and on the absence of prior attempts to
authenticate officially their marriage or to seek a divorce.
      The district court in part misconceives Texas law as it applies to the
evidence in this case.    Although Carty’s and Corona’s mutual conclusory
assertions that they have a common-law marriage “[are] not sufficient, standing
alone, to establish a common law marriage,” Tompkins v. State, 774 S.W.2d 195,
209 (Tex. Crim. App. 1987), it is undisputed that they lived together for
approximately three years, from 1999 to 2001. The record contains evidence of
multiple representations to others that they were married during the period of
their cohabitation. For example, Corona attested that, during the period of their
co-habitation, “I would introduce Linda as my wife, and she would introduce me
as her husband.” The difficult prong, as nearly always is the case, is the first:
whether there was an agreement to be married. There is an indistinct record as
to this prong. Carty has pointed the court to no direct evidence or statements
that she and Corona agreed to be married. Yet, such an agreement can be
inferred from the spouses’ public statements and their cohabiting. See Russell,
865 S.W.2d at 932. The fact that both Carty and Corona assert that they had a
common-law marriage, although not dispositive, lends credence to their
claim—typically, the spouses dispute their status.
      The evidence to the contrary, on which the district court relied, is not
pertinent to the analysis in this case. While some statements show that they


                                       28
                                         No. 08-70049

may not have always referred to themselves as being married, Texas law does
not require that the purported spouses always refer to themselves as
married—undertaking each requirement of informal marriage consummates the
union and renders additional or contradictory statements superfluous. See id.
Even if Carty may have been planning a wedding ceremony, the intention to
have a formal proceeding does not automatically disprove the existence of a
common-law marriage. See Hinojos v. R.R. Ret. Bd., 323 F.2d 227, 231 (5th Cir.
1963) (“[T]here is nothing necessarily inconsistent with an agreement presently
to enter into a common-law marriage and an intention later to have performed
a ceremonial marriage.”); Tompkins, 774 S.W.2d at 209 (“The fact that they
might have intended to go through a ceremonial marriage at sometime in the
future does not necessarily negate the inference that they believed that they
were married common law.”). Nor, as the district court erroneously referenced,
does a later separation, a statement by one or both spouses that no marriage
exists, or the spouses’ failure to otherwise authenticate their marriage disprove
or dissolve an established common-law marriage. See State v. Mireles, 904
S.W.2d 885, 889 (Tex. App.—Corpus Christi1995, pet. ref’d) (“[O]nce a common
law marital status exists, it, like any other marriage, may be terminated only by
death or a court decree; once the marriage exists, the spouses’ subsequent
denials of the marriage do not undo the marriage.”).
      On this record, considering Carty’s and Corona’s widely disseminated
representations that they were married and the fact that during trial, even the
prosecutors claimed that they were married,13 Carty may well have established
that she was married to Corona and that, but for her counsel’s ineffective


      13
           It is difficult for the state to now complain that Carty’s assertion is surprising.

                                                29
                                 No. 08-70049

assistance, Corona would have exercised his marital privilege not to testify.
Ultimately, however, we need not decide the question whether Carty and Corona
were married because Carty fails on the prejudice prong of her ineffective
assistance claim.
      Carty bears the burden of showing a reasonable probability of a different
result had Corona not testified. Although this is a close case, she has not made
the requisite showing that his testimony rendered her conviction “fundamentally
unfair or unreliable.” Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Corona’s testimony was
undoubtedly damaging to Carty’s defense, but it did not render her conviction
fundamentally unreliable. His testimony provided motive and context for the
crime. He testified that Carty wanted to have a child and frequently lied about
being pregnant. He provided the best evidence of their break up a mere two
weeks before Rodriguez’s murder, of her statements at that time that she was
pregnant, and of his belief that she was lying about being pregnant. Corona also
testified that Carty called him numerous times on May 15—the day prior to the
kidnaping and murder—and on May 16—the day of the crimes—to inform him
that she was having his baby boy. It is an obvious and no small inference that
Carty kidnaped Rodriguez’s baby and killed Rodriguez to prove to Corona that
she had birthed his son and thereby reestablish their relationship.
      The prosecutors emphasized Corona’s testimony in their closing remarks,
particularly “that every time [he] tried to end [their relationship], Carty
announced she was pregnant” and that “[w]hat [Carty] wanted, . . . needed, was
[the baby] because her life was falling apart and she needed the baby to bring it
back together again.” The state concedes that “Corona provided motive and
context for what would otherwise be a wholly inexplicable crime”—it was the

                                       30
                                 No. 08-70049

“evidence of what drove the defendant to commit such a brutal crime.” As
Guerinot summarized, Corona’s testimony “hurt Linda’s case.” The district court
thus appropriately concluded that Corona’s testimony “would be persuasive to
the jury” and “was obviously important to the prosecution.”
      Yet, while Corona’s testimony may have been damaging to Carty’s defense,
the Strickland prejudice test carries a higher standard. Trial counsel’s failure
to notify Corona that he did not need to testify must have “a pervasive effect on
the inferences to be drawn from the evidence, altering the entire evidentiary
picture.”   Strickland, 466 U.S. at 695–96.     We affirm the district court’s
conclusion that Corona’s testimony provided nuance to the case but did not alter
the entire evidentiary picture. The evidence of Carty’s guilt was overwhelming,
even absent Corona’s testimony, and his testimony, in most regards, only
corroborated other sources. Corona’s testimony was not necessary to prove, let
alone relevant to, any of the elements of capital murder. More importantly, trial
testimony from witnesses other than Corona revealed, inter alia, that in the days
leading up to the kidnaping and murder, Carty told Mathis, Meyers, and
Bancroft that she was pregnant. Neither Meyers nor Bancroft, however, thought
she looked pregnant. Carty had also acquired baby items that she stored in her
car, despite the fact that she was not pregnant.            In addition, Carty
masterminded the planned kidnaping—recruiting her accomplices, inviting them
into her home to see the layout (which mirrored the target home), calling the
kidnapers during the abduction, and then entering Rodriguez’s home to take the
baby, telling them repeatedly that she needed the baby, and directing them to
tie up Rodriguez and put her in the trunk of the car—and killed Rodriguez by
placing a bag over her head. While this other evidence may not have shown as


                                       31
                                     No. 08-70049

directly why Carty wanted Rodriguez’s baby, it nonetheless shows that she
wanted the baby.14 Although Corona’s testimony was obviously damaging to
Carty’s defense, we conclude, based on the totality of the evidence, that Carty
has not shown that but for trial counsel’s deficient failure to advise Corona of his
marital privilege there was a reasonable probability that she would not have
been convicted of capital murder.
             2. Failure to investigate and present additional mitigation
             evidence
      Carty also argues that trial counsel was ineffective because counsel failed
to investigate or present significant mitigating evidence. In Strickland, the
Supreme Court addressed an ineffective assistance claim based on an attorney’s
failure to investigate and present mitigation evidence. The Court “noted that
counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Sonnier, 476 F.3d
at 358 (citing Strickland, 466 U.S. at 691); see also Miniel v. Cockrell, 339 F.3d
331, 344 (5th Cir. 2003) (“[G]enerally accepted standards of competence require
that counsel conduct an investigation regarding the accused’s background and
character.”). “Mitigating evidence that illustrates a defendant’s character or
personal history embodies a constitutionally important role in the process of
individualized sentencing, and in the ultimate determination of whether the
death penalty is an appropriate punishment.” Riley, 339 F.3d at 316. “[C]ounsel
should consider presenting . . . [the defendant’s] medical history, educational
history, employment and training history, family and social history, prior adult


      14
         In fact, trial counsel’s unimpeached trial strategy was to challenge the evidence
showing Carty’s intent to kill, not her involvement in the kidnaping and murder. Corona’s
testimony was thus not relevant to the most prominently disputed element of Carty’s case.

                                           32
                                  No. 08-70049

and juvenile correctional experience, and religious and cultural influences.”
Wiggins v. Smith, 539 U.S. 510, 524 (2003).                Sometimes, however,
“[i]nvestigations into mitigating circumstances may reasonably be limited where
the defendant fails to call witnesses to his lawyer’s attention.” Wiley v. Puckett,
969 F.2d 86, 99 (5th Cir. 1992). As the Supreme Court explained in Strickland,
            The reasonableness of counsel’s actions may be determined or
      substantially influenced by the defendant’s own statements or
      actions. Counsel’s actions are usually based, quite properly, on
      informed strategic choices made by the defendant and on
      information supplied by the defendant. In particular, what
      investigation decisions are reasonable depends critically on such
      information. . . . In short, inquiry into counsel’s conversations with
      the defendant may be critical to a proper assessment of counsel’s
      investigation decisions . . . .
466 U.S. at 691. Thus, although a defendant’s obstreperousness will not justify
a complete failure by appointed counsel to investigate and present mitigating
evidence in all cases, see Sonnier, 476 F.3d at 358 (“[The defendant’s] refusal to
consent to their undertaking more extensive and in-depth discussions with his
family and acquaintances to determine the nature and extent of the mitigation
evidence available was not reasonable grounds for their failure to do so.”), “[t]he
scope of the attorney’s duty to investigate may be limited by a defendant’s lack
of cooperation,” Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995).
      When considering Strickland prejudice, we review “the totality of the
available mitigation evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding—in reweighing it against the evidence in
aggravation.” Williams v. Taylor, 529 U.S. 362, 397–98 (2000); see also Wiggins,
539 U.S. at 534 (“[W]e reweigh the evidence in aggravation against the totality
of available mitigating evidence.”); Strickland, 466 U.S. at 695 (“[T]he question


                                        33
                                   No. 08-70049

is whether there is a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it independently reweighs
the evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.”). In this re-weighing, the
brutality of the crime is relevant but does not automatically trump additional
mitigating evidence. See Gardner v. Johnson, 247 F.3d 551, 563 (5th Cir. 2001).
      Carty asserts that trial counsel failed to investigate or present mitigating
testimony from Corona, Mathis, Dr. Brown, Carty’s family and friends, and
acquaintances on St. Kitts and failed to investigate and present that Carty
suffered from posttraumatic stress disorder after being the victim of a sexual
assault, becoming pregnant, and giving her baby up for adoption.
      The state habeas court ruled on some of these claims. In particular, in her
initial state habeas application, Carty raised trial counsel’s failure to investigate
and present additional mitigating testimony from her family members who
testified and any mitigating testimony from her other family members. The
CCA concluded that trial counsel was not ineffective: “Trial counsel cannot be
considered ineffective for an alleged failure to investigate and present mitigating
evidence . . . in light of counsels’ investigation and presentation of thorough
punishment evidence, including testimony concerning [Carty’s] family
background and support, positive personal characteristics, positive activities,
work ethic, and her parenting abilities . . . .” The court also concluded that Carty
had not shown prejudice: “[Carty] fails to show harm, if any, so that the outcome
of the proceedings would have been different if the witnesses proffered on habeas
[[her] mother, daughter, two sisters, and brother] had been presented at trial,
based on the fact that three of the proffered witnesses [mother, daughter, sister]
actually testified at trial and that the proffered testimony was essentially the

                                         34
                                  No. 08-70049

same as evidence presented at trial.”        Bolstering its conclusion, the court
weighed Carty’s and her family’s lack of cooperation: “[Carty] fails to show
ineffective assistance of trial counsel based on the alleged failure to investigate
and present mitigating evidence, especially in light of [her] repeated failure to
cooperate with counsel, [her] refusal to give counsel the name of potential
witnesses, [her] instruction not to contact her family, and the failure of [her]
daughter to appear in court without the trial court issuing a writ of attachment
for her appearance.” As noted above, we review the state court’s conclusions and
the factual findings contained therein under AEDPA’s deferential standard. See
§ 2254(d). For Carty’s remaining claims, we review de novo. See Henderson, 333
F.3d at 598.
      Carty asserts that trial counsel failed to investigate and present mitigation
testimony from her family. Trial counsel presented some mitigating evidence,
including the testimony of Carty’s mother Enid, sister Isalyn, and daughter
Jovelle. Carty offers that, with better preparation, these witnesses would have
presented a more vivid picture of Carty as a generous and caring human being.
See Walbey v. Quarterman, 309 F. App’x 795, 804 (5th Cir. 2009) (“[T]he
mitigating evidence omitted by [trial counsel] during [the applicant’s] sentencing
overwhelms the ‘scant’ evidence, ‘bereft in scope and detail,’ that was
presented.”). Although trial counsel did not conduct extensive interviews with
these witnesses, they obtained a writ of attachment to secure Jovelle’s
testimony, and, moreover, Carty’s complaint about trial counsel’s preparation of
these witnesses boils down to a matter of degrees—she wanted these witnesses
to testify in greater detail about similar events and traits. We agree with the




                                        35
                                  No. 08-70049

district court that Carty has not shown any deficiency in trial counsel’s
preparation of Enid, Isalyn, and Jovelle. See Dowthitt, 230 F.3d at 743.
      Carty also asserts that trial counsel performed ineffectively by not
contacting Carty’s other family members, including Sonia Carty Jackson, Verna
Connor, Yvette Jacqueline Carty-Innes, Boyce Carty, and Clarence Eugene
Carty—all of whom now attest that they were willing to testify about Carty’s
dynamic life, intelligence, and generosity.       Such testimony would have
overlapped considerably with the testimonies of Enid, Isalyn, and Jovelle.
Carty’s claim is again that trial counsel did not present enough mitigating
evidence. We agree with the district court that Carty has not shown any
deficiency related to her proffer of cumulative evidence. See id. In addition,
with the exception of Verna, Carty refused to notify trial counsel about her
relatives: Guerinot attested that “Ms. Carty did not provide me with names of
people who would testify on her behalf. Ms. Carty did not even want her family
to testify but I approached them anyway because I thought their testimony was
important.”   Carty’s own actions and statements undermine her claim of
ineffective assistance related to mitigating testimony from other family
members. See Randle, 43 F.3d at 225; Wiley, 969 F.2d at 99. The CCA’s
conclusion—that trial counsel’s handling of the witnesses who testified and
failure to contact Carty’s other relatives, who would have testified similarly, did
not prejudice    Carty’s   mitigation    defense—was     not   an   unreasonable
determination of the facts in light of the evidence presented in the punishment
phase and was not an unreasonable application of or contrary to clearly
established, Supreme Court-determined federal law. See Neal v. Puckett, 286
F.3d 230, 247 (5th Cir. 2002) (deferring to state habeas court determination that


                                        36
                                       No. 08-70049

“the additional evidence was not substantial enough to outweigh the
overwhelming aggravating circumstances” where “[a]lthough the additional
mitigating evidence was of a significantly better quality than that actually
presented, much of it was similar in nature to the original evidence”).
       For the remainder of Carty’s claim of ineffective assistance of counsel
based on failure to investigate and present mitigating evidence, which we review
de novo, we conclude that Carty has failed to show Strickland prejudice. The
omission of Corona’s and Mathis’s proffered punishment-phase testimony was
not prejudicial.     Neither trial counsel nor the state has offered sufficient
justification for trial counsel’s failure to interview Corona or Mathis or to place
them on the stand for purposes of mitigation. Corona undisputedly resided with
Carty for three years prior to the kidnaping and murder and was Carty’s
common-law husband, while Mathis was Carty’s DEA agent with direct
knowledge of her work for the government. Corona attests that he would have
testified to the jury that Carty “did not deserve the death penalty” and that he
did not “believe she is an aggressive person or a threat to society.” Mathis
attests that “[t]he Linda I know is not a violent person, let alone a cold-blooded
murderer.” Mathis would also have provided some favorable if mixed testimony
about her performance as an informant for the DEA. Based on the totality of the
evidence, and weighing the relatively unpersuasive nature of Corona’s and
Mathis’s testimony, some of which would have been cumulative,15 against the
circumstances of the crime and other evidence, Carty has failed to show that
their testimony would have resulted in a life sentence.


       15
          Mathis’s testimony would have been largely cumulative of his trial testimony. For
example, Mathis testified during the guilt/innocence phase of trial that “I’ve known Linda for
a long time and I did not believe that she could do something like this.”

                                             37
                                        No. 08-70049

       Carty next asserts that trial counsel rendered ineffective assistance by
failing to investigate or procure testimony from her friends and acquaintances
on St. Kitts. The state does not dispute that these witnesses could show that
Carty was “well-liked and well-known,” “involved in church and politics,” a “good
teacher,” and not “violent or aggressive or even rowdy” while growing up and
working in St. Kitts.16 Indeed, these witnesses would have provided a much
more nuanced and detailed vision of Carty’s life and contributions to the St.
Kitts community. See Riley, 339 F.3d at 316. Yet, most, although not all, of
Carty’s supporters on St. Kitts had little contact with Carty in the two decades
since she left there—as the district court noted, the affidavits “have been
prepared by people removed both in time and geographic location from her life
at the commission of the capital murders.” Carty Federal Habeas, No. 06-614,
slip op. at 112. In fact, their proffered testimonies of her good character appear
“weak and stale” when compared to the person she had become—a person who
stole cars; organized drug deals, burglaries, and kidnapings; and committed
murder. Id. Furthermore, the testimonies of Enid, Isalyn, and Jovelle—based
on more recent observations and interactions with Carty in Texas—presented
at least some of the proffered information to the jury. And, again, Carty’s
obfuscation contributed to trial counsel’s alleged deficiency; she did not inform
trial counsel that she was a foreign national or provide counsel with her contacts



       16
           Each of the potential witnesses attested that, if asked, he or she would have traveled
to Texas to testify during Carty’s trial. The St. Kitts consulate stated that it would have
assisted with visas and travel. Thus, we assume that the witnesses would have testified if
called. See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (“In order for the
appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only
that this testimony would have been favorable, but also that the witness would have testified
at trial.”).

                                              38
                                       No. 08-70049

in St. Kitts. Although the proffered testimonies would have given more detail
and more focus to the mitigating evidence, in light of the totality of the evidence
presented at trial, they were not of sufficient quality and force to establish a
reasonable probability that, had the jury heard them, it would have elected to
impose a life sentence.
       Carty adds that trial counsel was ineffective for failing to investigate and
present mitigating evidence showing that she was the victim of a rape and that
she became pregnant as a result of that rape, birthed a child, gave it up for
adoption, and now suffers from chronic post-traumatic stress disorder as a
result. Carty did not present this mitigation argument to the district court. See
Carty Federal Habeas, No. 06-614, slip op. at 88. At most, she argued that her
rape was a justification for why she was uncooperative with trial counsel. Thus,
Carty has abandoned this line of argument. See Johnson v. Puckett, 176 F.3d
809, 814 (5th Cir. 1999) (“We have repeatedly held that a contention not raised
by a habeas petitioner in the district court cannot be considered for the first time
on appeal from that court's denial of habeas relief.”).17
       Finally, Carty argues that trial counsel ineffectively prepared Dr. Brown
for testimony and cross-examination about Carty’s future dangerousness during

       17
           Even if Carty did not abandon this claim, she has not shown either deficient
performance or prejudice. Carty did not inform trial counsel that she gave birth to a child that
was conceived as a result of rape. And, the jury heard testimony and argument about her rape
and resulting child birth, even as it related to mitigation. For example, after Dr. Brown
testified that she informed him about the rape, trial counsel stated during closing arguments:
                Linda Carty, according to the report by Dr. Brown—you may say, as far
        as mitigating goes, you may ask yourself, “You know what, I wonder if the fact
        that she reported that she gave birth to a child that was the result of a sexual
        assault and gave that up for adoption, if that may have triggered something to
        cause her to do what she did?” I mean, it could be anything from any source
        whatsoever. And the law does not require that you leave your common sense
        out there on the courthouse steps.

                                              39
                                  No. 08-70049

the punishment phase. Because neither we nor the district court granted Carty
a COA on this issue, we lack jurisdiction to consider this claim. See 28 U.S.C.
§ 2253(c); Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998) (“Compliance
with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional . . . .”).
      C. Denial of An Evidentiary Hearing
      Lastly, Carty argues that the district court abused its discretion by
denying her request for an evidentiary hearing on the exhaustion issue. Having
considered Carty’s proffer in connection with that request, we perceive no abuse
of discretion in the district court’s ruling. See Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to
federal habeas relief.”).
                              IV. CONCLUSION
      For the above-stated reasons, we AFFIRM the district court’s judgment.




                                       40
