                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              December 9, 2004
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                       ______________________                      Clerk

                            No. 04-70005
                       ______________________

                        ROBERT JAMES CAMPBELL

                                                 Petitioner-Appellant
                               versus

 DOUGLAS DRETKE, 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
                         (C.A. No. H-00-3844)
         ___________________________________________________

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.


DENNIS, Circuit Judge:*

     In 1991, Robert James Campbell was convicted of capital murder

and sentenced to death for the murder of Alexandra Rendon.       On June

14, 1995, the Texas Court of Criminal Appeals affirmed Campbell’s

conviction and sentence on direct review.       Campbell v. State, 910




     *
      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this opinion should not be published and is not precedent except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.

                                  1
S.W.2d 475 (Tex. Crim. App. 1995),1 cert. denied, 517 U.S. 1140

(1996).   Campbell, through counsel appointed by the Court of

Criminal Appeals, filed a state habeas application raising two

grounds for relief.2   The Texas habeas court denied habeas relief

as to each of Campbell’s claims, and on March 8, 2000, the Court of

Criminal Appeals affirmed the lower court’s denial.   In late 2000,

Campbell filed a timely petition for writ of habeas in federal

district court raising seven grounds for relief.      The district

court denied Campbell’s petition in its entirety and refused to

grant a certificate of appealability (“COA”).   Campbell v. Dretke,

H-00-3844 (S.D. Tex. March 20, 2003) [herinafter Ct. Op.]

     Campbell now seeks a COA on six grounds: (1) denial of his

constitutional   entitlement    to   a   lesser-included    offense

instruction; (2) constitutional error in instructing the jury on

the conspiracy law of parties during the liability phase of his

trial; (3) procedural default does not bar his claims that his

trial and appellate counsel provided ineffective assistance; (4)

ineffective assistance of trial counsel; (5) ineffective assistance

of appellate counsel; and (6) the federal district court’s denial


     1
      The Texas Court of Criminal Appeals only selected portions
of this opinion for publication. The entire case is No. 701491,
slip op. (Tex. Crim. App. June 15, 1995).
     2
      The two grounds for relief were: (1) Campbell was entitled
to a lesser-included offense instruction for murder, felony
murder, kidnapping, and aggravated sexual assault; and (2)
ineffective assistance of counsel for not presenting testimony by
a mitigation expert during the punishment phase.

                                 2
of authorization for intellectual functioning testing.               We DENY

Campbell’s application for a COA on all of his claims.

                                    BACKGROUND

     On January 3, 1991, Alexandra Rendon left her job at Bank One

between 10:00 and 10:30 p.m.            She was wearing a white leather

skirt, a cream-colored dress coat with snake skin patches on the

shoulders, a high school graduation ring, an engagement ring, and

a watch.   At 10:53 p.m. Ms. Rendon purchased gasoline at a Chevron

station located near her place of employment.              The next day, Ms.

Rendon’s mother realized that her daughter was missing, and on

January    5,   she    contacted     the    police   about   her   daughter’s

disappearance.

     On January 14, 1991, the police picked up Lawrence Thomas,

Campbell’s friend of three years, for questioning. Thomas told the

police that Campbell had told him that he and his friend Lewis had

gotten a car from a lady at a gas station, driven her to a field,

and shot and killed her.       On January 15, Thomas led the police to

the field where Campbell had told him that Ms. Rendon’s body was

located.    On January 16, the police arrested Campbell for Ms.

Rendon’s murder.

     At    trial,     the   State    presented   several     witnesses   whose

testimony tied Campbell to the commission of Ms. Rendon’s murder.

Campbell’s friends Thomas, Carey Pennamon, and Jesse Criff all

testified that Campbell told them that he had shot and killed a

woman whose car he’d taken at a gas station.                   Campbell also

                                        3
mentioned to two friends watching a news story about Ms. Rendon’s

murder, Otha Norton and Sheila Robeson, that Ms. Rendon looked like

the woman he’d shot and killed.

     Additionally, Campbell told Thomas, Criff, and Pennamon that

he’d shot at Ms. Rendon twice, hitting her the second time.      He

told Pennamon that he told her to “run, bitch run” before shooting

at her and told Thomas that he’d told her to walk away from the car

before shooting at her.   He showed Thomas the field where he’d left

Ms. Rendon’s body, and described the location to Criff. That field

was where the police later recovered Ms. Rendon’s body.

     The police also recovered many of Ms. Rendon’s belongings from

Campbell’s friends and family.    They recovered the coat Ms. Rendon

had been wearing from Campbell’s mother Wilda, the class ring and

watch she had been wearing from Campbell’s girlfriend Demetrius

Brown,3 and the gun used to kill Ms. Rendon from Campbell’s friend

Pennamon.   Pennamon testified that Campbell had asked him to hold

onto the gun.   Campbell offered Ms. Rendon’s white leather skirt,

which Thomas had seen earlier in the car Campbell was driving, to

his friends Robeson and Norton. Robeson declined the skirt because

it was dirty and Norton later threw it away.          Campbell told

Pennamon that he had taken the personal belongings of the woman he

had killed.     Campbell also drove numerous friends, including

Thomas, Norton, and Robeson around in a car identical to Ms.


     3
     Pennamon had also seen Campbell wearing the ring a day or
so after Ms. Rendon’s disappearance.

                                  4
Rendon’s.

      The police recovered semen of two men from Ms. Rendon’s body.

Campbell told Criff that he had sex with his victim and told Thomas

that Leroy Lewis, who was with Campbell that night, had also had

sex with her.         DNA testing further determined that 85.3% of

African-American males could be excluded from contributing the

semen attributed to Campbell,4 and only four percent of African-

American males could have contributed the semen attributed to

Lewis.

      Although the draft jury charge contained instructions on

felony     murder,   murder,   aggravated   kidnapping,     and   aggravated

murder, the State objected to the inclusion of any lesser-included

offense instruction.      The instructions given only allowed the jury

to return a verdict of not guilty or guilty of capital murder.           The

jury found Campbell guilty of capital murder.

                               Punishment Phase

      During the punishment phase, the State offered evidence of

other crimes Campbell had committed.              Aside from judgments of

conviction against Campbell for two robberies, the State presented

evidence of two other carjacking crimes he committed about the time

of   Ms.   Rendon’s    disappearance.       In   both   instances   Campbell

confronted persons getting into their cars, abducted them, took

them to a remote location, and stole their personal possessions.


      4
      The degraded nature of the DNA prevented more accurate
results.

                                      5
In one instance, Campbell ordered the victim to walk away from the

vehicle and shot at him twice, missing both times.              In the other,

Campbell’s accomplice talked him out of his plan to shoot the

female victim and drown her son in a nearby lake.

       The defense called three family members and a friend to

testify on Campbell’s behalf.         They testified that Campbell was

remorseful, needed rehabilitation, was loved by his family, and

would not be a future danger to society.        On May 21, 1991, the jury

answered Texas’ special issues in a manner requiring the imposition

of a death sentence.

                                 DISCUSSION

       Campbell’s   §   2254   habeas     petition    is   subject   to     the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

because he filed his petition after its enactment.          See Pub. L. No.

104-132, 100 Stat. 1214; Penry v. Johnson, 532 U.S. 782, 792

(2001).     Under AEDPA, Campbell may not appeal the district court’s

denial of habeas relief until he has obtained a COA.             28 U.S.C. §

2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478 (2000).

       To obtain a COA, Campbell must make “a substantial showing of

the denial of a constitutional right.”              28 U.S.C. § 2253(c)(2)

(2000); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529

U.S.   at    483.   Making     such   a   showing    requires    Campbell    to

demonstrate that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in



                                      6
a different manner or that the issues presented were adequate to

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

336 (quoting Slack, 529 U.S. at 484).                Our analysis “requires an

overview of the claims in the habeas petition and a general

assessment of their merit.”        Id.       Any doubt regarding whether to

grant a COA is resolved in favor of the petitioner, and the

severity    of   the   penalty    may       be    considered   in   making   this

determination.     Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.

1997).

       Where the lower court denied Campbell’s claims on procedural

grounds, a COA should issue only if Campbell demonstrates both that

“jurists of reason would find it debatable whether the petition

states a valid claim of a denial of a constitutional right and that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.”                Slack, 529 U.S. at

484.

       In our review of the district court’s determinations, we must

take into consideration that § 2254(d) of AEDPA requires a district

court to defer to a state court’s adjudication of a petitioner’s

claims on both pure questions of law and mixed question of law and

fact unless the state court’s determination was “contrary” to or an

“unreasonable application” of clearly established federal law as

determined by the Supreme Court.                 See Hill v. Johnson, 210 F.3d

481, 488 (5th Cir. 2000).        A state court’s decision is contrary to


                                        7
clearly established federal law when it “reaches a legal conclusion

in direct conflict with a prior decision of the Supreme Court or if

it reaches a different conclusion than the Supreme Court based on

materially indistinguishable facts.”   Miniel v. Cockrell, 339 F.3d

331, 337 (5th Cir. 2003).     Additionally, we must defer to the

state court’s factual findings unless they “resulted in a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”   28

U.S.C. § 2254(d)(2).     The state court’s factual findings are

presumed to be correct and petitioner “shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.”   28 U.S.C. 2254(e)(1).

I. Lesser-Included Offense

     Campbell first seeks a COA on his claim that the state court

violated his due process rights as provided by the Supreme Court in

Beck v. Alabama, by not giving the jury a lesser-included offense

instruction for the crimes of sexual assault, kidnapping, felony

murder, and murder, when the evidence would support such a verdict.

447 U.S. 625 (1980).      On review of an Alabama statute that

prohibited a lesser-included offense instruction in capital cases,

the Supreme Court stated that:

     [W]hen the evidence unquestionably establishes that the
     defendant is guilty of a serious, violent offense–but
     leaves some doubt with respect to an element that would
     justify a conviction of a capital offense–the failure to
     give the jury the “third option” of convicting of a
     lesser-included offense would seem inevitably to enhance
     the risk of unwarranted conviction.

                                 8
Id. at 637.   However, “due process requires that a lesser-included

offense instruction be given only when the evidence warrants such

an instruction.”    Hopper v. Evans, 456 U.S. 605, 611 (1982).        Thus,

a lesser-included offense instruction will only be merited when

“the evidence would permit a jury rationally to find him guilty of

the lesser offense and acquit him of the greater.”                 Jones v.

Johnson, 171 F.3d 270, 274 (5th Cir.), cert. denied, 120 S. Ct. 29

(1999).

      The Fifth Circuit’s interpretation of Beck requires a trial

court judge to consider all of the evidence in the case as a whole

in   determining   whether   a   rational   jury   could   have   found   the

defendant not guilty of capital murder but guilty of a lesser-

included offense.     Ransom v. Johnson, 126 F.3d 716, 726 (5th Cir.

1997); United States v. Harrison, 55 F.3d 163, 167 (5th Cir. 1995);

Montoya v. Collins, 955 F.2d 279, 286 (5th Cir. 1992).

      Fifth Circuit precedent has held that the determination of

whether a defendant is entitled to a lesser-included offense

instruction is a factual determination made by the state court and

to be entitled to habeas relief, a petitioner must rebut the

state’s holding under the “clear and convincing evidence” standard

contained in § 2254(e)(1).       Dowthitt v. Johnson, 230 F.3d 733, 757

(5th Cir. 2000), Robertson v. Johnson, 234 F.3d 890, 898 (5th Cir.




                                     9
2000).5   We will address each requested lesser-included offense

charge that Campbell was denied.

     1. Aggravated Sexual Assault or Kidnapping but not Capital
     Murder

     Campbell contends that a rational jury could have found that

he kidnapped and raped Ms. Rendon but still have reasonable doubt

as to whether he killed her.   Thus, he argues that the Texas state

trial court violated his due process rights under Beck when it did

not instruct the jury on the offenses of aggravated sexual assault

and kidnapping. To support this contention, Campbell relies on the

medical examiner’s testimony that the body’s decomposition would

have been expected to reach a more advanced stage if it had been

lying where it was discovered from January 3 until January 15.

Based on the examiner’s testimony, Campbell argues, the jury could

have rationally found that although Campbell kidnapped or sexually

assaulted Ms. Rendon while stealing her car on January 3, someone

other than Campbell may have killed her and left her body in the


     5
      There is, however, a debate as to whether it is correct to
classify the issue of whether a defendant was entitled to a
lesser-included offense instruction as a question of fact or a
question of law. See Bryson v. Ward, 187 F.3d 1193, 1211 (10th
Cir. 1999) (Briscoe, J., concurring) (arguing that whether a
defendant is entitled to a lesser-included offense instruction is
a mixed question of fact and law). If we were to analyze this
issue as a mixed question of law and fact we would apply §
2254(d)(1) to decide whether the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly
established Federal law.” Because we find that Campbell is not
entitled to a COA under either standard and we are bound by Fifth
Circuit precedent, we do not resolve the debate in this case.


                                 10
field on a date subsequent to January 3, because her body would

have sustained more decomposition if she had been killed and left

in the field on January 3.

     Although the district court stated that the medical examiner

testified “that the body’s decomposition would have been expected

to reach a more advanced stage...unless the temperature was cool,”

Ct. Op. at 37, the medical examiner actually said that even if the

temperature was cool “there would be changes more than what we have

here.”   St. Rec. Vol. 59 at 519-20.        Campbell also argues that

aggravated   sexual    assault   and    kidnapping   instructions   were

warranted because the murder weapon was discovered in Pennamon’s

possession rather than in Campbell’s.

     It is not disputable that Campbell failed to present “clear

and convincing evidence” to rebut the state court’s determination

that he was not entitled to a lesser-included offense instruction.

Dowthitt, 230 F.3d at 757-58.    The evidence before the jury showed

that in the days following Ms. Rendon’s disappearance, Campbell

repeatedly bragged to multiple friends that he had shot and killed

Ms. Rendon, and he was seen wearing her class ring.        Moreover, he

gave her dirty clothing to his friends and family.          Considering

these admissions, in light of the whole record, jurists of reason

would agree that a rational jury could not have found Campbell

guilty of sexual assault or kidnapping without also finding him

guilty of murder.     Only by a contorted and irrational view of the

evidence could the jury have found that Campbell kidnapped or

                                   11
sexually assaulted her and took her belongings on the day she

disappeared, but that she was murdered by an unidentified person

afterwards, although Campbell repeatedly bragged about being the

killer.    We therefore deny Campbell’s request for a COA on this

claim.

     2. Felony Murder but not Capital Murder

     Campbell next contends that the jury may have rationally found

him guilty of felony murder rather than capital murder because it

could have had a reasonable doubt that he intended to kill Ms.

Rendon.    Felony murder is a lesser-included offense of capital

murder.    Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App.

1999).    The distinguishing element between the two crimes is the

“intent to kill.”   Id.   Therefore, Campbell is only entitled to a

lesser-included offense instruction on felony murder if he can show

that the jury could rationally have found Ms. Rendon’s homicide

unintentional.

     Campbell argues that the evidence shows that he shot at Ms.

Rendon with only the intent to terrify or wound her.   In support of

this argument, Campbell points to the following facts: (1) the

scene of the murder was likely pitch black; (2) Campbell told Ms.

Rendon to run into the darkness, which would have made it more

difficult for him to shoot her; and (3) the bullet wound on Ms.

Rendon’s body was located on her upper hip rather than her head.

Of that evidence, the Texas court found that the only evidence that



                                 12
tended to support Campbell’s theory was his claim that the shooting

occurred when it “may have been ‘pitch black,’” and that a rational

jury could have found that the darkness obscured his target to the

extent that his hitting her was unintentional.                     As the district

court explained, however, giving Ms. Rendon a chance to run into

the darkness before shooting her may have added “a sadistic element

of sport into the murder,” but not grounds for reasonable doubt as

to Campbell’s intent to kill Ms. Rendon. Ct. Op. at 32.

     It is not debatable that the fact that it was dark when

Campbell shot Ms. Rendon is not sufficient clear and convincing

evidence    to   rebut    the    state    court’s      factual     determinations.

Similarly, no reasonable jurist could argue, given the evidence,

that a rational jury could have found Campbell guilty of felony

murder    but    not   capital    murder;      and    it    therefore    cannot    be

reasonably maintained that the state habeas court unreasonably

applied    clearly     established    federal        law.     We   therefore     deny

Campbell’s request for a COA on this issue.

     3. Murder but not Capital Murder

     Campbell next contends that a properly instructed jury may

have rationally found him guilty of murder but not capital murder

because the jury could have had a reasonable doubt as to whether

Campbell    intentionally        caused    Ms.   Rendon’s      death    during    the

commission or attempted commission of aggravated sexual assault or

kidnapping.      Under Texas law, murder is defined as “intentionally

or knowingly caus[ing] the death of an individual.”                    TEX. PEN. CODE

                                          13
§ 19.02(b)(1).         Under Texas law, murder is a lesser-included

offense    of    capital     murder,      which    requires   that    a     defendant

intentionally cause the death of another while in the course of

committing      or   attempting      to   commit    some   other    crime    such    as

aggravated      sexual     assault     or    kidnapping.       TEX.   PEN.    CODE    §

19.03(a)(2); Ex Parte McClelland, 588 S.W.2d 957, 959 (Tex. Crim.

App. 1979).

               A. Aggravated Sexual Assault

       Campbell argues that the jury could have harbored a reasonable

doubt with regard to whether he committed aggravated sexual assault

based on the following evidence: (1) Campbell told Thomas that

Lewis had raped Ms. Rendon, but did not confess to raping her

himself; and (2) while Campbell consented to providing the state

with body tissue and fluid samples, Lewis refused.

       It is not maintainable that the evidence that Campbell, in his

conversation with Lewis, neither volunteered nor denied that he had

raped Ms. Rendon and that he provided a blood sample without the

state obtaining a warrant, rebuts the state court’s findings by the

clear    and    convincing     evidence.          Dowthitt,   230    F.3d    at   757.

Similarly, it is not maintainable that the state habeas court’s

holdings were unreasonable in light of clearly established federal

law.    Specifically, no rational jury could have convicted Campbell

of murdering Ms. Rendon but not sexually assaulting her.                             We

therefore deny a COA on this issue.

               B. Kidnapping

                                            14
       Campbell argues that there was sufficient basis for a rational

jury to find that he killed Ms. Rendon without kidnapping her

because of Thomas’ testimony that Campbell said Ms. Rendon complied

when he “just told her to get in [her car]” with Campbell and Lewis

at the gas station,     St. Rec. Vol. 58 at 145-46, because it tends

to create a doubt as to whether Campbell made her leave the gas

station with him by means of force, intimidation, or deception, as

would   be   required   under   Texas    law   to   uphold    a   verdict   of

kidnapping.    As the district court properly noted, however, before

Thomas so testified, he had earlier told the police that Campbell

told him that he forced Ms. Rendon into the car.             Furthermore, as

the district court properly explained:

     Logic defies the assumption that Ms. Rendon, a bank
     employee who stopped to get gasoline in her car after
     leaving work at night, would voluntarily get into her
     vehicle with two strangers, having not met them before
     and with at least one of them carrying a gun, and then
     proceed to an out-of-the-way location merely because one
     of the men “just told her to get in it.”
Ct. Op. at 36.

       We agree.   It cannot be maintained that Campbell presented

clear and convincing evidence rebutting the state court’s findings.

Similarly, it is not maintainable that the state habeas court’s

holding was unreasonable in light of clearly established federal

law.    We therefore deny a COA on this issue.

II. Jury Instructions on The Law of Parties During The Liability
Phase

       Campbell’s next request for a COA relies on the Supreme

Court’s holding in Enmund v. Florida that it violates the Eighth

                                    15
Amendment to execute someone for aiding in a murder that he himself

did not commit.   458 U.S. 782 (1982).    He argues that based on the

holding in Enmund, he is entitled to a COA on the issue of whether

the inclusion of the “law of the parties” charge during the guilt-

innocence phase of trial led to a constitutional error during the

punishment phase.    Id.   Campbell argues that the trial court’s

instructions created a substantial risk that the jury answered the

special issues requiring imposition of the death penalty upon

Campbell without finding that Campbell killed, intended to kill, or

intended that a killing take place as required for a death sentence

to comport with the Eighth Amendment.     Id.

     Over Campbell’s objection, the charge submitted to the jury

during    the   guilt-innocence   phase   contained   the   following

instruction:

     If, in an attempt to carry out a conspiracy to commit one
     felony, another felony is committed by one of the
     conspirators, all conspirators are guilty of the felony
     actually committed, though having no intent to commit
     it, if the offense was committed in furtherance of the
     unlawful purpose and was one that should have been
     anticipated as a result of the carrying out of
     conspiracy.
St. Rec. Vol. 1 at 185.

During the punishment phase the trial court judge did not give the

jury an “anti-parties” instruction, specifying that conspiratorial

liability does not apply to the punishment phase and that Campbell

should not get the death penalty unless he personally killed Ms

Rendon.



                                  16
     Language identical to the language contained in the first

special issue in the instant case, however, has been held to

include the requirement of a jury finding of individual liability

during the punishment phase.6       Beyleu v. Scott, 67 F.3d 535, 543

(5th Cir. 1995); Andrews v. Collins, 21 F.3d 612, 630-31 (5th Cir.

1995).     Furthermore, “th[e] structure of the punishment phase

reasonably lead[s] the jury to assume the law of the parties was

not applicable during this phase.”          Westley v. Johnson, 83 F.3d

714, 723 (5th Cir. 1996).

     Campbell’s attempts to distinguish prior Fifth Circuit cases

because the trial court judge instructed the jury to consider

evidence    from   both   phases   “in    accordance   with   the   previous

instructions of the court”7        fail for the three reasons clearly

stated by the district court.      First, the jury instructions during

the punishment phase told the jury to make an “individualized

determination...of the personal culpability of...Campbell.” St.

Rec. Vol. 1 at 225.       Second, the closing arguments by both sides



     6
      Special Issue No. 1 asked:
     Was the conduct of the defendant, Robert James Campbell,
     that caused the death of the deceased committed
     deliberately and with the reasonable expectation that the
     death of the deceased or another would result?
This Court, in Beyleu v. Scott, 67 F.3d 535, 543 (5th Cir. 1995),
and Andrews v. Collins, 21 F.3d 612, 630-31 (5th Cir. 1994), found
that asking whether “the conduct of defendant was committed
deliberately and with the expectation that death would result” in
the special issue requires the finding of individual liability.
     7
         St. Rec. Vol. 1 at 227.

                                     17
informed the jury that deliberations during the punishment phase

must focus on Campbell’s conduct alone.             Finally, the evidence

before    the   jury   contained   few    details   about   Lewis’   personal

culpability in crimes other than rape of the victim.

     As for Campbell’s argument that the trial court erred by not

including a conspiracy instruction in the application portion of

the jury charge, as the district court noted, Campbell does not

cite any case finding a federal right to such instruction and

Campbell is unable to tie the application paragraph to a federal

Enmund right.      Because reasonable jurists would not debate the

correctness of the district court’s determination that the Texas

habeas court’s decision did not involve an unreasonable application

of clearly established federal law, we deny Campbell a COA on this

issue.

III. Procedural Default of Ineffective Assistance of Counsel Claims


     In district court, Campbell asserted a habeas claim based on

ineffective assistance of his trial and appellate counsel on three

grounds.    Campbell concedes that he did not raise in state court:

(1) trial counsel’s failure to object to, and request limiting

instructions regarding, the admission of certain hearsay testimony;

and (2) appellate counsel’s failure to raise several points of

error on direct appeal in state court.8             He recognizes that 28

U.S.C. § 2254(b) requires him to present and exhaust any habeas

     8
         We discuss the third ground below.

                                     18
claim he may have in state court before bringing a habeas claim on

those grounds in federal court.9       Campbell argues, however, that he

can overcome that default by demonstrating cause for the defaults

and actual prejudice, which would excuse his procedural default.10

Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir.), cert. denied, 537

U.S. 1040 (2002).

      To establish cause, Campbell asserts that his state appointed

counsel was ineffective in not raising those claims of ineffective

counsel in Campbell’s state habeas proceedings.            He argues that

although there is no Sixth Amendment right to effective habeas

counsel, because Texas law provides for state appointed habeas

counsel,11 a due process right attaches to that state-created right

and protects Campbell from an arbitrary deprivation of that right.

He bases his argument on the Supreme Court’s decision in Coleman v.

Thompson, 501 U.S. 722 (1991), which held that an inmate generally

has   no   right   to   effective   representations   in   post-conviction

proceedings, but expressly did not reach the question of whether

that reasoning also applied when the state habeas forum is the

      9
      Because Campbell has already brought a request for habeas
in state court, however, Texas’ abuse-of-the-writ doctrine would
prevent the presentation of these claims in a successive habeas
application. See TEX. CODE CRIM. PRO. art. 11.071 § 5(a).
      10
       Campbell does not rely on the “manifest injustice”
exception to procedural bar.
      11
       TEX. CODE CRIM. P. art § 2(a) states that a person seeking
habeas relief from imposition of the death penalty: “shall be
represented by competent counsel unless the applicant has elected
to proceed pro se....”

                                      19
“first forum in which a federal claim can be raised.”                    Id. at 750.

       Campbell is correct that the Supreme Court left that question

unanswered.        As the district court properly noted, however, the

Fifth    Circuit       has   consistently      rejected       the     argument    that

compliance      with    Texas’     statutory       provision       guaranteeing     the

appointment of “competent” counsel in state habeas proceedings

mandates constitutionally effective representation even where, as

here, state      habeas      proceedings     are    the    first    forum   in    which

petitioner could assert such claims.                     Ogan, 297 F.3d at 357;

Martinez v. Johnson, 255 F.3d 229, 245 (5th Cir. 2001); In re Goff,

250 F.3d 273, 274-76, (5th Cir. 2001).                    This Court has clearly

stated   that    “ineffective       assistance      of    habeas     counsel     cannot

provide cause for a procedural default.”                   Martinez, 255 F.3d at

241.

       Other    Circuits      to   address     this       issue     similarly    found

insufficient “cause” for a procedural default based purely on a

habeas petitioner’s collateral counsel’s ineffectiveness.                           See

Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir. 1997); Hill v.

Jones, 81 F.3d 1015, 1024-26 (11th Cir. 1996); Bonin v. Calderon,

77 F.3d 1155, 1159-60 (9th Cir. 1996); Nolan v. Armontrout, 973

F.2d 615, 616-17 (8th Cir. 1992).              Accordingly, we conclude that

jurists of reason could not debate whether Campbell has made out a

claim of cause for his procedural default.                 The district court did

not err in denying Campbell a COA on the issue of ineffective


                                        20
assistance of trial and appellate counsel. We therefore deny a COA

on Campbell’s claims that his counsel failed to object and request

limiting instructions regarding the admission of certain hearsay

testimony and failed to raise several points of error on direct

appeal.

IV. Ineffective Assistance During the Punishment Phase:

       Campbell      argues    that   he   did    present     his   third   claim    of

ineffective assistance of counsel in state court.                     He requests a

COA    on    the     issue     of   whether      he   received      constitutionally

ineffective assistance of counsel because his trial counsel did not

do    an    adequate   investigation       of     mitigation     evidence   for     the

punishment phase.             In support of his claim, Campbell presents

affidavits by friends and family members describing Campbell’s

abused childhood and stating that Campbell’s attorneys had not

previously asked them about his childhood.                  The state argues, and

the district court found, that Campbell’s claim on this issue is

procedurally barred because he did not present those affidavits in

state court.        Because the lower court denied Campbell’s claims on

procedural         grounds,     a   COA    should     issue    only    if   Campbell

demonstrates that “jurists of reason would find it debatable

whether the petition states a valid claim of a denial of a

constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.”      Slack, 529 U.S. at 484.

       Exhaustion of Remedies in State Court?

                                           21
     “The exhaustion requirement is satisfied when the substance of

the habeas claim has been fairly presented to the highest state

court” so that a state court has had a “fair opportunity to apply

controlling     legal    principles    to   the   facts    bearing     on    the

petitioner’s constitutional claim.”          Soffar v. Dretke, 368 F.3d

441, 465 (5th Cir. 2004).

     Exhaustion inquiries are case and fact-specific and “dismissal

is not required when evidence presented for the first time in a

habeas proceeding supplements, but does not fundamentally alter,

the claim presented to the state courts.” Anderson v. Johnson, 338

F.3d 382, 387 n.8 (quoting Caballero v. Keane, 42 F.3d 738, 741 (2d

Cir. 1994)).     But “[s]ubstantial evidence rising to a ‘180 degree

turn’    will   render   a   claim   unexhausted.”        Id.   at   389    n.26.

Furthermore, a petitioner has not exhausted his state claim when he

offers material additional factual allegations and evidentiary

support to the federal court that were not presented to the state

court.    Dowthitt, 230 F.3d at 746; Barrientes v. Johnson, 221 F.3d

741, 761 (5th Cir. 2000); Graham v. Johnson, 94 F.3d 958, 968-69

(5th Cir. 1996).

     Although Campbell’s state habeas petition stated that his

trial counsel did not do an adequate mitigation investigation, the

claim was in the context of arguing that counsel should have

presented the testimony of a mitigation specialist during the

punishment phase of Campbell’s trial.         Specifically, in the state


                                      22
habeas proceedings Campbell argued that he was:

      [D]enied effective assistance of counsel during the
      punishment phase of his trial when trial counsel failed
      to adequately investigate [his] history, when such
      historical information was essential in the preparation
      of a biopsychological assessment by an expert in the area
      of mitigation, thereby denying [Campbell] the opportunity
      to present mitigating evidence during punishment.


His   petition   failed   to   allege     what   specific      facts    such   an

investigation would have uncovered in Campbell’s case or any facts

tending to show that Campbell’s trial attorney did not investigate

Campbell’s background. He relied solely on the fact that his state

trial counsel did not present a mitigation expert’s testimony.

      The state habeas court found that Campbell’s trial counsel’s

strategy to not use a mitigation expert was reasonable and that

trial counsel did present evidence of Campbell’s background that

was within the scope of the special issues submitted to the jury

during   the   punishment   phase.        Because   in   the    state    habeas

proceedings Campbell did not allege any other facts tending to show

that Campbell’s trial lawyer failed to investigate his background,

the state habeas court did not perform any further analysis.

Although Campbell now faults the state habeas court for not holding

an evidentiary hearing, he gave no indication to the state court

that he had any evidence that Campbell’s state trial counsel did

not investigate Campbell’s background.

      Before the federal district court, Campbell argued not that

his state trial counsel should have investigated his background for


                                     23
the purpose of presenting expert testimony, but alleged more

broadly that trial counsel was not adequately informed as to

Campbell’s     background.      For    the    first   time   in   federal      court

Campbell submitted affidavits by Campbell’s family and friends

stating that Campbell’s state trial counsel did not ask them about

Campbell’s background and describing various aspects of Campbell’s

childhood.     Campbell’s state habeas counsel did not make any of

these allegations.       Thus, as the district court explained, because

Campbell’s claim in federal court did “not focus on counsel’s

preparation of information to be used by an expert, but the

preparation     of    substantive     evidence     for   trial...The     expanded

breadth and divergent focus render Campbell’s current habeas claim

unexhausted.”        Ct. Op. at 57.

     Because Campbell’s state habeas claim only briefly mentioned

counsel’s failure to investigate Campbell’s background and instead

focused   on    counsel’s     failure        to   present    testimony    from     a

“mitigation expert,” Campbell’s claim took a “180 degree turn” in

federal court when he presented for the first time specific factual

allegations     that     Campbell’s     state      habeas    counsel     did     not

investigate his background and allegations of the facts they would

have uncovered if they had.           See Anderson, 338 F.3d at 389 n. 26,

Dowthitt, 230 F.3d at 746; Graham, 94 F.3d at 968.                     For those

reasons, reasonable jurists would not find debatable that the state

court did not have a “fair opportunity to apply controlling legal

principles to the facts bearing on the petitioner’s constitutional

                                        24
claim” when Campbell presented no specific facts of a failure to

investigate Campbell’s background to the state court.    Soffar, 368

F.3d at 465.   Because Campbell’s arguments attempting to establish

“cause” for and “prejudice” from his procedural default are no

different than the arguments he asserted for his other claims of

ineffective assistance of counsel, they fail for the same reasons.

We therefore deny Campbell’s request for a COA on this issue.

V. Authorization for IQ testing

     Finally, Campbell requests a COA on the issue of whether the

district court erred by not giving him funding to pursue his IQ

testing.   Campbell’s original state and federal habeas petitions

did not allege that he was mentally retarded.     Almost two years

after Campbell filed for habeas relief in federal court, the

Supreme Court held in Atkins v. Virginia that execution of mentally

retarded individuals is unconstitutional.    536 U.S. 304 (2002).

Prompted by that ruling, Campbell filed a successive state writ

application claiming for the first time that his death sentence was

invalid under Atkins because he was mentally retarded.    After the

Texas Court of Criminal Appeals dismissed Campbell’s subsequent

application as an abuse of the writ, Campbell filed a motion in

this Court requesting authorization to file a successive federal

habeas petition pursuant to the “new rule” exception contained in

28 U.S.C. § 2244(b)(2)(A).    This Court denied Campbell’s request

when it found that Campbell had not stated a prima facie case of



                                  25
mental retardation under Atkins because he presented no evidence of

impaired mental functioning but only that he was “at risk” of being

mentally retarded.     In re Campbell, 82 Fed. Appx. 349, 351 (5th

Cir. 2003).

     After this Court denied Campbell’s request for authorization

to file a successive habeas petition, Campbell filed a motion with

the district court requesting funds for IQ testing under 21 U.S.C.

§ 848(q)(9).12   The district court denied Campbell’s motion on the

grounds   that   he   could   not   authorize   public    funds   for   the

prosecution of a theory that the Court of Appeals has found

insufficient to support the filing of a successive habeas petition.

     A lower court’s denial of a motion for authorization of funds

is reviewed for abuse of discretion.        Riley v. Dretke, 362 F.3d

302, 304 (5th Cir. 2004).     To be entitled to IQ testing, Campbell

must “show that he is indigent and that the requested assistance is

‘reasonably necessary’ for his representation.”          Id. at 307.

And to be entitled to additional discovery, Campbell must show

“good cause.”    Hill, 210 F.3d at 487; Rules Governing § 2254 Cases,

Rule 6(a).    “Good cause” generally exists when a habeas petitioner

has “establish[ed] a prima facie claim for relief.”          Id. (quoting

Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000)).            Because



     12
       Section 848(q)(9) allows for the court to “authorize
[public funds for] a [capital] defendant’s attorney to obtain
services” that are “reasonably necessary for the representation
of the defendant.” 21 U.S.C. § 848(q)(9).

                                    26
this court previously ruled that Campbell failed to make out a

prima facie Atkins claim and was therefore not entitled to file a

successive habeas petition before Campbell requested funds to

further investigate his claim, reasonable jurists would not find it

debatable that the district court did not abuse its discretion when

it denied Campbell funding for IQ testing.   We therefore deny a COA

on this issue.

                            CONCLUSION

     For these reasons, we DENY Campbell’s application for a COA on

all of his claims.




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