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

                                                                            FILED
                                                                          March 28, 2013

                                       No. 11-70026                        Lyle W. Cayce
                                                                                Clerk

MICHELLE BYROM,

                                                  Petitioner–Appellant
v.

CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS

                                                  Respondent–Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                   (06-CV-142)


Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Michelle Byrom (“Byrom”) was charged with capital murder following the
death of her husband, Edward Byrom, Sr. (“Edward”). The jury found Byrom
guilty, and the state court judge sentenced her to death. Byrom’s appeal and
petition for post-conviction relief were both denied by the Mississippi Supreme
Court. Thereafter, Byrom petitioned for federal habeas relief on twelve separate
grounds. The district court denied Byrom’s petition, but granted her request for


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 11-70026

a certificate of appealability (“COA”) on five claims: (1) whether evidence was
improperly suppressed; (2) whether Byrom had statements taken in violation of
her privilege against self-incrimination; (3) whether the trial court failed to
consider all mitigating evidence; (4) whether her waiver of a jury sentencing was
valid;1 and (5) whether counsel was ineffective in failing to investigate and
present all available mitigating evidence. In addition to appealing most of those
claims for which a COA was granted, Byrom has moved for an expanded COA
on two issues considered by the district court: (1) whether the exclusion of
jailhouse letters from Byrom’s son as a discovery sanction violated Byrom’s
rights; and (2) whether Byrom received ineffective assistance of counsel when
her trial attorney committed a discovery violation, thereby causing the exclusion
of her son’s jailhouse letters. For the reasons that follow, we deny Byrom’s
motion for an expanded COA and deny her habeas petition.
I.     Factual and Procedural Background
       On June 4, 1999, Byrom was admitted to the Iuka Hospital in Iuka,
Mississippi with double pneumonia. Her admission was part of a recurring
series of illnesses caused in part by substance abuse and self harm.2 She was
dropped off at the hospital by her husband, Edward, who then returned home.
Later that day, responding to a 911 call from Byrom’s son, Edward Byrom, Jr.
(“Junior”), police found Edward slumped over a coffee table in the family’s home.
Edward had been shot four times in the chest with his own nine-millimeter
pistol. After questioning Byrom and Junior in the hours after the murder, the

       1
        Despite receiving a COA as to whether Byrom validly waived her jury sentencing,
Byrom’s brief does not contain any information or argumentation on this point. Accordingly,
we deem it waived.
       2
         Byrom received a number of medications upon being admitted to the hospital and
throughout her stay. These drugs included Talwin, a painkiller; Flexeril, a muscle relaxant;
Prilosec, for stomach acid; Restoril, a sleep aid; Synthroid, a thyroid medication; Prednisone
and Plaqueril, to treat lupus; Zoloft, an antidepressant; and Librium, for the agitation
associated with alcohol withdrawal.

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                                 No. 11-70026

police came to believe that Byrom had hired one of Junior’s friends, Joey Gillis
(“Gillis”), to murder Edward in exchange for $15,000 of Edward’s life insurance
policy. All three individuals—Byrom, Junior, and Gillis—were subsequently
arrested.
      By all accounts, the Byrom household was a particularly discordant place.
Byrom and Edward frequently fought about money-related issues, and Junior
would sometimes intervene when the fights escalated. Edward was physically,
sexually, and verbally abusive to Byrom. He often abused Junior as well,
generally in response to Junior’s partying, drinking, and drug use. Byrom and
Edward themselves drank frequently, and it appears the family’s fights were
worse when alcohol was involved. Junior claims that, in the six months leading
up to Edward’s murder, the family would engage in heated arguments that
involved yelling and cursing at least twice a week. Byrom also suffered verbal,
physical, and sexual abuse as a child at the hands of her stepfather, which
resulted in her leaving home at around age fifteen.
      According to Byrom and Junior, Edward frequently withdrew into the
family’s entertainment room when he was home, often eating and sleeping there.
That room, which had shag carpet on the walls and black plastic over the
windows, had functioned as a sound studio at one point. However, Byrom claims
that Edward had more recently used the room to indulge his addiction to
pornography. As part of that addiction, Byrom alleges that Edward forced her
to engage in sexual acts, some of which he videotaped. Byrom’s claims were
partially substantiated by videotapes recovered by police.
      Byrom claims that Edward’s recurrent threats and abuse prevented her
from leaving him. Instead, she arranged to have Edward murdered. Junior
testified that Byrom approached him about having Edward murdered sometime
in May 1999, after a particularly rowdy party at which Edward became
belligerent and abusive to both Byrom and Junior.         Junior testified that,

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approximately one week before the murder, he asked his friend, Gillis, about
murdering Edward. Gillis would either commit the murder himself or find
someone else to do it and would receive $15,000 in exchange. After two failed
attempts, Edward was murdered on June 4, 1999.
       Although the precise order of Byrom’s and Junior’s initial interviews with
police is disputed, it seems that police became suspicious of Junior at the crime
scene and took him into custody for questioning as a result.3 An investigator
from the Mississippi Highway Patrol went to the hospital to interview Byrom,
but police did not suspect Byrom’s involvement at the time; they went to ask
about weapons in the home and the relationship between Edward and Junior.
However, Junior made suspicious statements during his interview with the
police, which prompted them to return to the hospital at around 10:47 p.m. to
question Byrom further.         It was during that interview that Byrom began
implicating herself, Junior, and Gillis in a murder-for-hire plot. On October 21,
1999, Byrom was indicted under Miss. Code Ann. § 97-3-19(2)(d), which
criminalizes murder perpetrated by a person who has been offered or who has
received anything of value for committing a murder, as well as all parties to the
murder.
       During their incarceration, Byrom and Junior exchanged a number of
letters. In at least two of these letters—letters that police did not intercept—
Junior accepts complete responsibility for Edward’s murder and disclaims the
existence of a murder-for-hire conspiracy. In one of the letters, Junior claims he
alone murdered Edward and that he did so for purely personal reasons. In the
other letter, Junior describes the murder in detail. Defense counsel came into


       3
        Police were suspicious of Junior for multiple reasons. First, Junior told the 911
dispatcher that his father had been shot. When police arrived, however, Junior asked whether
Edward had suffered a heart attack. Second, Junior had cuts on his knuckles and blood on
the back of his pants. It was later determined that the blood was Junior’s. The blood and the
cuts were supposedly the result of punching a door after discovering Edward’s body.

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                                      No. 11-70026

possession of the letters some time before trial. Then, at Byrom’s pretrial
hearing in October 2000, defense counsel alluded to the existence of letters,
acknowledging the possession of materials intended for use as impeachment
evidence against Junior if he testified consistently with the prosecution’s
murder-for-hire theory.4 Defense counsel was told to produce the material or
risk its exclusion at trial. Counsel refused.
       At trial, Junior testified against his mother in support of the prosecution’s
murder-for-hire theory. During cross-examination, defense counsel attempted
to impeach Junior using the first letter to suggest that there was no murder-for-
hire plot. The prosecution objected because the letter had not previously been
disclosed. Byrom’s attorney claimed that the applicable rule did not mandate
pretrial disclosure since Junior and the letter were not part of the defense’s case-
in-chief.   The court recessed for the day to consider the issue, and the
prosecution was given an opportunity to question Junior about the letters.
When asked whether he had withheld any other evidence, Byrom’s attorney
stated that they had “other impeachment evidence” that they intended to use to
“impeach the daylights” out of Junior. Counsel was admonished that further
nondisclosure would result in exclusion of the evidence and further delay;
nondisclosure was at counsel’s “own peril.”
       The next day, the court determined that the letter would be excluded as
a sanction for counsel’s deliberate discovery violation. The court, however,
limited the scope of its sanction. Byrom’s counsel was allowed to ask Junior
about the letter’s contents using direct quotes, but counsel could neither handle
the letter nor reference its existence in front of the jury.                   The court
acknowledged that this amounted to splitting hairs, but nevertheless felt that
this remedy properly redressed counsel’s discovery violation. Counsel attempted

       4
        Junior agreed to testify against his mother in exchange for a plea bargain to lesser
charges in the murder-for-hire plot.

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                                       No. 11-70026

to impeach Junior with the second letter as well, which resulted in a second
recess and an identical sanction.
       During cross-examination of Junior, counsel was able to read directly from
the letters, and Junior admitted to many of the facts Byrom’s attorney sought
to establish. For instance, Junior admitted to telling different stories to different
people regarding his role in Edward’s death; Junior admitted that he wrote to
his mother taking responsibility for the murder; and he admitted that he had
told others that no murder-for-hire conspiracy existed. Junior nevertheless
denied other details from the letters, including that he alone killed Edward.
       On re-direct, the prosecution questioned Junior about the circumstances
surrounding the jailhouse letters. Junior testified that he and Byrom had
realized their letters were being intercepted and that the letters in question had
been written with an audience of law enforcement officers in mind. Junior
claimed that he wrote the letters at a time of deep depression, during which he
was “ready to take the rap for everything.”
       The jury found Byrom guilty of capital murder on November 17, 2000.
After her conviction, Byrom petitioned to waive her right to a jury sentencing.
The prosecution concurred with Byrom’s request, and the court found that
Byrom had made a valid waiver of her right. At the sentencing hearing, Byrom
did not present any witnesses.5 Instead, she offered the reports of a defense
expert and a court-ordered psychiatrist, as well as the medical records from a
doctor. These reports and records documented Byrom’s long history of abuse and
illness.   After considering mitigating and aggravating factors, the judge
sentenced Byrom to death by lethal injection.


       5
         Defense counsel apparently believed that the trial court had made several reversible
errors prior to sentencing and—anticipating a retrial—counsel did not want the prosecution
to know about their mitigation evidence. Additionally, Byrom waived her jury sentencing on
the belief that doing so would create a conflict for the trial judge at the retrial and because
they felt the waiver itself might be grounds for reversal.

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       Byrom’s direct appeal and petition for post-conviction relief were both
denied by the Mississippi Supreme Court. Byrom v. State, 863 So. 2d 836 (Miss.
2003); Byrom v. State, 927 So. 2d 709 (Miss. 2006). Byrom then petitioned the
district court for federal habeas relief on twelve grounds. The district court
denied Byrom’s petition in its entirety, but granted a COA as to five claims.
Byrom v. Epps, 817 F. Supp. 2d 868 (N.D. Miss. 2011). Byrom appealed to this
Court on four of the five claims for which the district court granted a COA. She
also sought an expanded COA as to two claims rejected below.
II.    Expanded Certificate of Appealability
       A.    Applicable Law
       As a jurisdictional matter, under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), petitioners may not appeal the denial of habeas
relief without securing a certificate of appealability (“COA”).       28 U.S.C.
§ 2253(c)(1); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A COA is only
warranted if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Byrom
must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
further.” Miller–El, 537 U.S. at 336 (quotation marks omitted).
       When reviewing a district court’s denial of a COA, this Court must issue
a COA if “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”      Id. at 338. “[A] claim can be
debatable even though every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that petitioner will
not prevail.” Id. at 338. Moreover, “[i]n death penalty cases, any doubts as to
whether the COA should issue are resolved in favor of the petitioner.” Moore v.



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Quarterman, 534 F.3d 454, 460 (5th Cir. 2008) (citing Lamb v. Johnson, 179 F.3d
352, 356 (5th Cir. 1999)).
      Here, the district court granted Byrom a COA as to five claims and denied
the rest. Byrom has since moved for an expanded COA regarding two of her
claims. First, Byrom alleges that the trial court’s exclusion of her son’s jailhouse
letters violated her Sixth and Fourteenth Amendment constitutional rights.
Second, Byrom claims she received ineffective assistance of counsel when her
trial attorney willfully withheld the jailhouse letters, thereby causing their
exclusion at trial. As such, the Court must examine the district court’s denial
of these claims to determine whether “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Michael
Williams v. Taylor, 529 U.S. 420, 484 (2000).
      B.    Exclusion of the Jailhouse Letters
      Byrom received at least two letters from Junior while they were both
incarcerated.   In these letters, which were purportedly written with the
intention that law enforcement intercept them, Junior took full responsibility for
Edward’s murder and disclaimed the existence of a murder-for-hire scheme.
These letters were given to Byrom’s attorney, who intended to use the letters as
impeachment evidence if Junior testified consistently with the prosecution’s
theory of the case against Byrom.
      Before trial began, the court warned Byrom’s counsel to disclose
impeachment evidence to the prosecution or risk discovery sanctions at trial.
Disregarding the court’s admonition, counsel withheld the letters until they were
unveiled during Junior’s cross-examination.        Counsel did so for strategic
surprise, as well as to ensure that Junior would remain a key prosecution
witness. Byrom’s attorney also believed that his tactic was permissible under




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                                       No. 11-70026

the relevant rule, a claim the court did not accept.6 As a sanction, the trial court
barred counsel from referencing or handling the letters in front of the jury.
Nevertheless, counsel was permitted to question Junior about the letters and to
read directly from the letters while questioning him. During cross-examination,
Junior admitted to offering different accounts of the murder to different people,
including previous statements taking complete responsibility for the murder.
Junior did, however, ultimately deny direct responsibility for his father’s death.
On re-direct, Junior said he took responsibility for the murder in the letters
because they were written during a time of deep depression and that he did so
to exonerate Byrom and Gillis.
       The Mississippi Supreme Court, on direct appeal, rejected Byrom’s claim
that the letters’ exclusion was improper. Byrom v. State, 863 So. 2d 836, 869–71
(Miss. 2003).      The court analyzed the relevant state discovery rule and
determined that the trial court followed the correct procedure and reached an
appropriate outcome. Id. at 868–71. That same court also rejected Byrom’s
assertion that the exclusion was prejudicial since Byrom’s counsel was
nevertheless able to elicit testimony from Junior that favored Byrom’s theory of
the case using the letters’ contents. Id. at 871.
       On review, the district court deferred to the state court’s interpretation of
its own evidentiary rules since it did not appear that the court was attempting
to evade a federal issue. Byrom v. Epps, 817 F. Supp. 2d 868, 887 (N.D. Miss.
2011). The district court found that it was not improper to exclude direct


       6
         In Mississippi, a reciprocal discovery rule required that defense counsel disclose “the
contents of any statement, written, recorded or otherwise preserved” for “all witnesses in chief
which the defendant may offer at trial[.]” URCCC 9.04(C)(1). Byrom contended that this rule
did not require disclosure of Junior’s letters because “they were to be offered for impeachment
purposes only and not as substantive evidence in her case-in-chief.” Byrom, 863 So. 2d at 868.
Based on prior precedent, the Mississippi Supreme Court rejected Byrom’s claim because the
relevant rule is concerned with discouraging the sort of “trial by ambush” that counsel had
attempted. Id. at 869 (quoting Coates v. State, 495 So.2d 464, 467 (Miss. 1986)).

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references to the jailhouse letters as a sanction for willfully withholding them
prior to trial. Id. Further, the sanction was carefully crafted to let defense
counsel “question Junior extensively from the letters in order to provide the
defense with the opportunity to present its theory of the murder.” Id. at 887–88.
In fact, trial counsel read portions of the letters verbatim. Id. at 888. Because
trial counsel’s discovery violation was a willful, strategic tactic, and because the
sanction itself deprived Byrom’s defense of very little, the district court denied
habeas relief. Id.
      Byrom bases her motion for an expanded COA on Taylor v. Illinois, 484
U.S. 400 (1988), an attempted murder case in which the trial court excluded a
defense witness because of trial counsel’s willful failure to disclose the witness
prior to trial. 484 U.S. at 401–02. In Taylor, the defendant’s attorney did not
disclose the existence of a witness until the second day of trial, despite the
prosecution’s pre-trial request for a list of all defense witnesses and an
amendment defense counsel made to his witness list on the first day of trial—an
amendment that did not include the withheld witness. Id. at 403–04. When
asked about the failure to disclose his witness, defense counsel claimed to have
only recently located the witness. Id. at 404. This, however, was not true.
Before determining whether the new witness could testify, the court conducted
its own examination of the witness. Id. During that colloquy, the witness
disclosed that he and the attorney had first met months before, and that counsel
visited him around a week before trial began. Id. at 405. The witness also made
statements suggesting he had not actually witnessed the altercation at issue.
Id. at 404–05. The trial judge concluded that complete exclusion of the witness’s
testimony was the appropriate sanction in light of the attorney’s deliberately
misleading statements and the likelihood that the witness had not in fact
witnessed the altercation that gave rise to the case. Id. at 405.



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      In upholding the sanction, the Supreme Court rejected both parties’
extreme positions: “Petitioner’s claim that the Sixth Amendment creates an
absolute bar to the preclusion of the testimony of a surprise witness is just as
extreme and just as unacceptable as the State’s position that the Amendment is
simply irrelevant.” Id. at 410. Instead, the Court decided that a complete
evidentiary exclusion was an acceptable sanction in certain situations, though
it declined to enumerate a definitive test. Id. at 414–16. Given the nature of the
violation in Taylor, the Court found “the inference that [counsel] was
deliberately seeking a tactical advantage . . . inescapable.” Id. at 417. Because
counsel’s violation was “willful and blatant,” complete exclusion was appropriate,
regardless whether “prejudice to the prosecution could have been avoided.” Id.
at 416–17.
      Here, Byrom attempts to distinguish the facts of Taylor in order to
undermine the validity of the trial court’s discovery sanction, which Byrom views
as identical to the sanction levied in Taylor. Byrom characterizes the sanction
here as a complete exclusion and claims that it was inappropriate because
Taylor was not a capital murder case and the attorney in Taylor went so far as
to deliberately mislead the court. Here, Byrom’s attorney believed withholding
Junior’s letters fell within the letter of the law, and Byrom never misled the
court. These points are well taken, but Byrom fails to appreciate how the
sanction in Taylor differs from this case. Whereas Taylor involved the complete
exclusion of a defense witness, the trial court here only partially restricted the
extent to which counsel could use Junior’s jailhouse letters.
      In fact, Byrom’s trial counsel was able to read directly from the letters
while questioning Junior, and Junior acknowledged many of the key points
counsel sought to establish. He acknowledged making inconsistent statements
concerning his role in the murder and the existence of a murder-for-hire plot;
and he admitted writing Byrom a letter stating that he killed his father. The

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trial court merely precluded counsel from handling the letters in front of the jury
and from specifically referring to their existence. That is, trial counsel was able
to explore their theory of the case, though in a more limited capacity than
originally planned. Counsel could not impeach Junior using the letters, but he
nevertheless    acknowledged     giving    inconsistent    stories   and    claiming
responsibility for the murder, points defense counsel specifically sought to elicit
for the sake of undermining Junior’s credibility and supporting their theory of
the case.
      Here, the sanction fit the violation and fell well within Byrom’s Sixth
Amendment rights. As the district court noted, “[Byrom’s] right under the
Confrontation Clause of the Sixth Amendment is to the “opportunity for effective
cross-examination.” Byrom, 817 F. Supp. 2d at 887 (quoting United States v.
Whitfield, 590 F.3d 325, 363 (5th Cir. 2009)) (emphasis original). To the extent
Byrom’s opportunity was limited, it was due to the deliberate actions of her
attorney. When counsel engages in willful discovery omissions for purely tactical
reasons, the Sixth Amendment is not offended by the imposition of proportionate
sanctions. See Taylor v. Illinois, 484 U.S. 400, 415 (1988).
      For these reasons, reasonable jurists could not find the district court’s
assessment of Byrom’s constitutional claim debatable or wrong.              Michael
Williams v. Taylor, 529 U.S. 420, 484 (2000). While the discovery violation in
this case was not as egregious as the one in Taylor, neither was the sanction. As
the district court stated:
      [t]he trial court allowed the defense a remedy for its discovery
      violation that still allowed it to present its theory, and it allowed the
      defense to question Junior extensively from the letters in order to
      provide the defense with the opportunity to present its theory of the
      murder. In fact, trial counsel read exact quotes from the letters in
      many instances.




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Byrom, 817 F. Supp. 2d at 888. Contrary to Byrom’s representations, the trial
court did not use the discovery violation to freely exclude defense evidence with
little regard for the impact on Byrom’s constitutional rights. Rather, the court
evaluated defense counsel’s discovery violation in light of the circumstances of
the case and fashioned a remedy that addressed the violation while still
affording Byrom wide latitude to present her theory of the case. Moreover,
counsel was able to elicit much of what it wanted from Junior. See Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (denying federal habeas relief for trial
error unless the error “had substantial and injurious effect or influence in
determining the jury’s verdict.”). Reasonable jurists could not find the district
court’s assessment of this issue debatable or wrong. Therefore, the Court denies
Byrom’s motion for an expanded COA on whether the exclusion of Junior’s
jailhouse letters amounted to a violation of Byrom’s rights.
      C.    Ineffective Assistance of Counsel
      Byrom also seeks an expanded COA to argue that trial counsel’s refusal
to disclose Junior’s jailhouse letters prior to trial constituted ineffective
assistance of counsel since counsel’s willful discovery violations resulted in the
sanctions discussed immediately above. However, the district court refused to
consider this claim because Byrom “has never presented a State court with the
argument that trial counsel performed ineffectively in failing to properly follow
the rules.” Byrom, 817 F. Supp. 2d at 888. Because reasonable jurists would not
find the district court’s assessment debatable or wrong, we deny Byrom’s motion.
Michael Williams v. Taylor, 529 U.S. 420, 484 (2000).
      Before state prisoners may seek habeas relief in federal courts, they must
first exhaust available state remedies so as to give the state courts an
opportunity to correct alleged violations of federal rights.          28 U.S.C.
§ 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004). In order to provide the
“opportunity” required, the prisoner must “fairly present” her claim “in each

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appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the
claim.” Baldwin, 541 U.S. at 29 (quoting Dunan v. Henry, 513 U.S. 364, 365–66
(1995) (per curiam); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). See also
Smith v. Quarterman, 515 F.3d 392, 402 (5th Cir. 2008) (“The exhaustion of
state remedies, codified in § 2254(b)(1), requires a petitioner to provide the
highest court of the state a fair opportunity to apply the controlling federal
constitutional principles to the same factual allegations before a federal court
may review any alleged errors.”). If a prisoner fails to exhaust her claim, it
becomes procedurally barred.
      Here, Byrom has not previously claimed ineffective assistance of counsel
based on trial counsel’s intentional withholding of evidence. In her motion
before this Court, Byrom makes two statements in response to the district
court’s ruling. First, Byrom claims that, “[i]n post-conviction proceedings,
Byrom claimed that she was denied her constitutional right to a fair trial when
the trial court excluded Junior’s letters.” This may be true, but such a claim
does not contain an ineffective assistance of counsel claim within it. This Court
addressed Byrom’s claims regarding the exclusion of Junior’s letters in Part II.B,
supra.
      Second, Byrom claims that, she “asserted that her trial and appellate
counsel were ineffective for failing to raise this claim as raised in her post-
conviction petition.” It is not clear, however, that “this claim” refers to an
ineffective assistance of counsel claim arising out of a willful discovery violation.
This conclusion is underscored by the block quote Byrom uses to illustrate the
Mississippi Supreme Court’s holding. The text Byrom relies on pertains to the
Mississippi Supreme Court’s refusal to re-examine whether the exclusion of
Junior’s jailhouse letters denied Byrom a fair trial. See Byrom, 927 So. 2d at
726. No portion of that text, nor any part of the opinion more broadly, even

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                                  No. 11-70026

mentions the ineffective assistance of counsel claim asserted here. Furthermore,
a review of Byrom’s briefs before the Mississippi Supreme Court failed to reveal
even a trace of the specific ineffective assistance of counsel claim put forth here.
      By contrast, Byrom in fact presented four specific ineffective assistance of
counsel claims while seeking post-conviction relief in the state court. She
asserted ineffective assistance of counsel claims premised on counsel’s (1) failure
to pursue a change of venue; (2) general failure to investigate Byrom’s case; (3)
failure to adequately investigate at both the guilt and sentencing phases; and (4)
failure to object to comments made by the prosecution during closing arguments.
Id. at 715–22. Byrom did not claim, however, that counsel was ineffective in
willfully violating discovery rules, causing the exclusion of Junior’s letters.
Byrom has attempted to shift her ineffective assistance of counsel claims to
substantive areas not previously considered by the state courts. See Smith, 515
F.3d at 402 (finding a claim unexhausted when a federal claim is shifted to
substantive areas not previously raised in state court). Therefore, this claim is
procedurally barred.
      In the alternative, Byrom contends that her procedural default should be
excused because she has demonstrated a “manifest injustice.” That is, Byrom
claims that her underlying innocence excuses her default since failure to
consider the claim would constitute a manifest injustice. Under the applicable
precedent, Byrom must meet the “probably resulted” standard when raising a
claim of actual innocence to avoid a procedural bar. Schlup v. Delo, 513 U.S.
298, 326–27 (1995). That is, she must “show that ‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’” Id. at 327
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). This test is more difficult
to meet than a showing of prejudice. Manifest injustice “does not merely require
a showing that a reasonable doubt exists in the light of the new evidence, but



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                                    No. 11-70026

rather that no reasonable juror would have found the defendant guilty.” Id. at
329.
         Apart from cursorily raising this contention, Byrom has offered no
argumentation on point. Nevertheless, it is clear that Byrom cannot meet this
standard with regard to counsel’s failure to produce Junior’s letters and their
subsequent exclusion. As discussed above, the trial court crafted a narrow
sanction in response to counsel’s conduct. That sanction still allowed counsel to
question Junior regarding the letters. The substance of the sanction did not
alter the outcome of the trial. Allowing Byrom’s trial counsel to handle Junior’s
letters in front of the jury would not have caused all reasonable jurors to find
Byrom not guilty. Therefore, we deny Byrom’s request for an expanded COA to
pursue her ineffective assistance of counsel claim.
III.     Byrom’s Remaining Claims
         A.    Junior’s Psychiatric Evaluation
         Before Byrom’s trial, the court ordered psychiatric evaluations for Byrom,
Junior, and Gillis. The same doctor, Dr. Criss Lott, conducted each evaluation,
and the results were transmitted to the trial court for in camera review. To
date, Byrom has not seen Dr. Lott’s evaluation of Junior. However, Byrom
contends that Junior confessed sole responsibility for Edward’s murder to Dr.
Lott. Byrom makes this inference on the basis of information gleaned from two
sources. First, in a newspaper article about Gillis’s trial, an Assistant District
Attorney purportedly stated that, while preparing to try Gillis, the government
learned of statements Junior made to Dr. Lott that conflicted with his
anticipated testimony. Second, Dr. Lott has apparently confirmed Junior’s
statement to Byrom’s counsel. Dr. Lott was even preparing to share Junior’s
evaluation before the trial court forbade him from doing so. However, Byrom
was aware of Junior’s alleged statement to Dr. Lott before her state court appeal



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                                  No. 11-70026

and yet did not challenge the evidence’s suppression. Having failed to raise
these claims previously, they are procedurally barred.
      Nevertheless, Byrom seeks discovery of Dr. Lott’s report in order to
establish three constitutional claims: (1) a Brady violation; (2) her actual
innocence under Schlup; and (3) her ineligibility for the death sentence under
Sawyer. Discovery is permitted only if good cause is found. Murphy v. Johnson,
205 F.3d 809, 814 (5th Cir. 2000). Good cause may be found when a petition for
habeas relief “establishes a prima facie claim for relief.” Id. (quoting Harris v.
Nelson, 394 U.S. 286, 290 (1969)). As explained below, Byrom has not met this
standard.
      1.    Brady Claim.
      “Under Brady, a defendant’s due process rights may be violated when
exculpatory or impeachment evidence, which is both favorable to the defendant
and material to guilt or punishment, is concealed by the government.” Id. In
this context, “materiality does not require demonstration by a preponderance
that disclosure of the suppressed evidence would have resulted ultimately in the
defendant’s acquittal.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Rather, the
defendant need only show a reasonable probability of a different result. Id. A
Brady violation is established by “showing that the favorable evidence could
reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. at 435.
      Here, Byrom has not made a prima facie showing of a Brady violation
because Dr. Lott’s report does not create a reasonable probability of a different
result at Byrom’s trial.     According to Byrom, Junior’s evaluation would
demonstrate that Junior took responsibility for Edward’s death when
interviewed by Dr. Lott. She seizes on this in order to claim that, had the report
been produced before trial, it would have discredited Junior’s testimony and
aided Byrom’s case.      This may be true, but, through cross-examination

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                                  No. 11-70026

concerning the jailhouse letters, Junior’s testimony was already discredited at
trial and in precisely the fashion Byrom describes here. While Byrom was
restricted from showing Junior’s letters to the jury, her attorney questioned
Junior about the letters’ contents and elicited testimony that undermined
Junior’s testimony broadly and his statements regarding his mother’s role in the
murder specifically. He has already admitted to giving multiple inconsistent
statements regarding who was responsible for Edward’s murder. The inclusion
of one additional instance of such a statement thus does not create a reasonable
probability of a different outcome. Dr. Lott’s report would merely bolster
Byrom’s initial attempt at discrediting Junior’s testimony; it would not “put the
whole case in such a different light as to undermine confidence in the verdict.”
Id. Since this does not amount to good cause, we deny Byrom’s claim.
      2.    Actual Innocence
      As discussed previously, raising an actual innocence claim requires
showing “that ‘a constitutional violation has probably resulted in the conviction
of one who is actually innocent.’” Schlup, 513 U.S. at 327 (quoting Murray v.
Carrier, 477 U.S. 478, 496 (1986)). This test “does not merely require a showing
that a reasonable doubt exists in the light of the new evidence, but rather that
no reasonable juror would have found the defendant guilty.” Id. at 329. Byrom
characterizes the aforementioned Brady claim as the constitutional violation
underpinning her actual innocence claim. However, for the same reasons
discussed above, Dr. Lott’s report does not establish a prima facie case of actual
innocence. Byrom would have used Dr. Lott’s report in precisely the way she
used Junior’s jailhouse letters. The effect of the report thus falls well short of
the requisite standard. See Schlup, 513 U.S. at 327 (requiring that new evidence
make it “more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.”). Having failed to show good cause,
Byrom’s claim is denied.

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                                  No. 11-70026

      3.    Eligibility for the Death Penalty
      In order to contest her eligibility for the death penalty, Byrom must show,
based on the evidence proffered and all record evidence, that there is a fair
probability that a rational trier of fact would have entertained a reasonable
doubt as to the existence of the facts which made her eligible for the death
penalty. Sawyer v. Whitley, 505 U.S. 333, 346–47 (1992). Here, Byrom claims
that the evidence produced at trial—taken together with Dr. Lott’s
report—would create a fair probability that no rational juror would have found
her guilty of participating in a murder-for-hire scheme, the capital crime for
which she was convicted. Miss. Code Ann. § 97-3-19(2)(d).
      Byrom has not, however, made the requisite showing. While Dr. Lott’s
report would have supported Byrom’s theory of the case, in light of the other
evidence produced at trial—including Byrom’s own confessions—it cannot be
said that a rational trier of fact would have entertained a reasonable doubt
regarding the existence of a murder-for-hire scheme. According to Byrom, the
parties planned to murder Edward. Junior implicated Byrom, Gillis, and
himself; and Byrom separately implicated herself on more than one occasion.
Even with Dr. Lott’s report, it cannot be said that a rational trier of fact would
harbor a reasonable doubt as to Byrom’s guilt. Byrom has thus failed to show
good cause, and we deny her claim accordingly.
      Having disposed of Byrom’s motion for an expanded COA and Byrom’s
motion for additional discovery, the Court will next address those issues for
which the district court granted a COA.
      B.    Applicable Law and Standard of Review
      AEDPA was enacted to address perceived abuses in the habeas system,
limit prisoners’ ability to delay justice by filing frivolous claims, and respect
state court determinations of fact and law. See Michael Williams v. Taylor, 529
U.S. 420, 436 (2000) (stating that AEDPA’s purpose was to “further comity,

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                                   No. 11-70026

finality, and federalism,” and highlighting the importance of “limit[ing] the scope
of federal intrusion into state criminal adjudications and . . . safeguard[ing] the
States’ interest in the integrity of their criminal and collateral proceedings”);
Day v. McDonough, 547 U.S. 198, 205–06 (2006) (AEDPA was passed to
“promote[] judicial efficiency and conservation of judicial resources . . . and lend[]
finality to state court judgments within a reasonable time”). AEDPA thus
“imposes a highly deferential standard for evaluating state-court rulings and
demands that state-court decisions be given the benefit of the doubt.” Renico v.
Lett, 130 S. Ct. 1855, 1862 (2010) (citations and internal quotation marks
omitted).
      AEDPA governs our review of state court determinations of law and mixed
issues of law and fact.7 See 28 U.S.C. § 2254(d)(1). Section 2254(d)(1) prohibits
federal courts from granting habeas relief unless the state court’s denial “was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” Id. See
also Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001) (“We review questions
of law and mixed questions of law and fact under the ‘contrary to’ and
‘unreasonable application’ prong of 28 U.S.C. § 2254(d).”). The state court’s
decision was contrary to federal law if the “the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Terry Williams v. Taylor, 529 U.S. 362,
412–13 (2000). The state court unreasonably applied federal law if it “identifies
the correct governing legal principle . . . but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413. In other words, in order to obtain
habeas relief from a federal court, “a state prisoner must show that the state

      7
        AEDPA also controls when reviewing state court findings of fact. See 28 U.S.C.
§ 2254(d)(2). No findings of fact are contested here, however.

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                                 No. 11-70026

court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington
v. Richter, 131 S. Ct. 770, 786-87 (2011). This standard governs our review of
the state court’s adjudication of Byrom’s claims.
      C.    Coerced Statements
      In the wake of Edward’s murder, the police interviewed Byrom on five
separate occasions: (1) 8:38 p.m. on June 4; (2) 10:47 p.m. on June 4; (3) 6:53
a.m. on June 5; (4) 9:00 a.m. on June 6; and (5) 3:03 p.m. on June 7. The first
four interviews took place while Byrom was still hospitalized, and Byrom
implicated herself in interviews two through five. At trial, the court excluded
interviews two and three because of defective Miranda warnings. It permitted
the introduction of interviews four and five, however, against Byrom’s objection.
Byrom now claims that the trial court erred when it admitted these two
interviews because interviews two and three were the product of coercion and
that coercion carried over, thus marring her subsequent statements.
      The Mississippi Supreme Court dismissed this argument as moot because
the trial court excluded the interviews during which coercive conduct allegedly
occurred, i.e., interviews two and three. Byrom v. State, 863 So. 2d 836, 861
(Miss. 2003) (“This argument is moot because the statements were excluded. . . .
The remedy for coercive interrogation practices is exclusion of the statements in
which the coercion was present. It does not require the exclusion of all
subsequent interrogations that are preceded by proper Miranda warnings and
are not coercive.”). The Supreme Court has made clear, however, that coercive
tactics can indeed carry over to subsequent interviews, implicating Fifth
Amendment concerns, regardless of whether earlier interviews are suppressed.
Oregon v. Elstad, 470 U.S. 298, 309–10 (1985). Indeed, the Supreme Court has
enumerated factors for determining whether coercion taints subsequent

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                                  No. 11-70026

interrogations. See id. at 310 (“When a prior statement is actually coerced, the
time that passes between confessions, the change in place of interrogations, and
the change in identity of the interrogators all bear on whether that coercion has
carried over into the second confession.”). As explained below, since neither
AEDPA exception applies to the Mississippi Supreme Court’s determination on
the merits, Byrom’s claim fails. Cf. Richter, 131 S. Ct. at 787 (“And if the state
court denies the claim on the merits, the claim is barred in federal court unless
one of the exceptions to § 2254(d) set out in §§ 2254(d)(1) and (2) applies.”).
      In order to validly waive the Fifth Amendment privilege against self-
incrimination, an individual’s waiver “must be voluntary in that it was not the
product of intimidation, coercion, or deception.” Hopkins v. Cockrell, 325 F.3d
579, 583 (5th Cir. 2003). Proving that a confession was coerced requires showing
that the confession “resulted from coercive police conduct and it is essential that
there be a link between the coercive conduct of the police and the confession of
the defendant.” Id. at 584. Such conduct includes official overreach and direct
coercion, as well as promises and inducements. See United States v. Blake, 2012
WL 3045649, at *1 (5th Cir. July 26, 2012) (unpublished) (per curiam). Trickery
or deceit only constitutes coercion “to the extent [the defendant is deprived] of
knowledge essential to his ability to understand the nature of his rights and the
consequences of abandoning them.” Hopkins, 325 F.3d at 584. “Neither mere
emotionalism and confusion, nor mere trickery will alone necessarily invalidate
a confession.” Self v. Collins, 973 F.2d 1198, 1205 (5th Cir. 1992) (internal
quotations marks omitted).      For instance, this Court found that coercion
occurred when a defendant confessed to a murder after being assured by police
that the conversation was confidential. Hopkins, 325 F.3d at 584–85. The
defendant had been isolated for fifteen days and was even interviewed by a close
friend in order to help elicit a confession. Id. at 584. Likewise, coercion was
found when a mother confessed only after police threatened to cut off her state

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                                    No. 11-70026

financial aid and take custody of her children. Lynumn v. Illinois, 372 U.S. 528,
534 (1963).
      Here, Byrom alleges that the police coerced the confessions she gave
during interviews two and three—the two interviews that were suppressed for
Miranda reasons—and that the coercion carried over into the subsequent two
interviews during which she further implicated herself. Byrom focuses her claim
on a handful of statements made to her during the course of interviews two and
three, as well as the fact that she was heavily medicated while in the hospital.8
      At the beginning of her second interview, the sheriff told Byrom that
Junior had already confessed and warned Byrom against letting Junior bear the
full weight of Edward’s murder on his own: “He’s already given us a statement
on this. Don’t let him be out here by himself on this.” The sheriff reiterated the
point later when he told Byrom that she was “trying to leave him out there by
himself.” The sheriff also told Byrom that she and Junior would be in danger as
long as the triggerman remained free. Finally, the sheriff warned Byrom that
he would tell the judge whether and to what extent Byrom cooperated: “There
are [sic] stuff you are leaving out here. Now I’m going to tell you. Once we get
to the point where we have to talk to the Judge and everything. All that’s going
to matter. He’s going to ask me how did she cooperate? . . . Well I’m gonna have
to tell him that you had a memory lapse on some ‘stuff,’ we had to pick it out of
her. Now the Judge ain’t going to like it.” Byrom claims that these statements
deceived her and exploited her emotions, thereby constituting coercion that
tainted her subsequent confessions.
      Having reviewed the transcripts of these interviews, it is clear that
Byrom’s confessions were not coerced. While the sheriff’s statements were


      8
       The doctors treating Byrom told law enforcement officers that Byrom’s medications
would not interfere with her ability to be interviewed. In any event, such a claim is
procedurally barred for failure to adequately present it in prior proceedings.

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                                 No. 11-70026

certainly intended to cajole Byrom into confessing using her emotions and a
measure of deception, they did not constitute coercion. Byrom first implicated
herself after the sheriff implored Byrom to not leave Junior “hanging out there
to bite the big bullet.” The sheriff made that statement early during the
interview, after a series of denials from Byrom. While the statement certainly
suggested that Junior was facing serious legal consequences regarding Edward’s
murder, the police did not make any threats, promises, or other coercive
statements. Insofar as the sheriff made other, subsequent statements, Byrom
had already confessed and continued to do so. In any event, Byrom was not
promised leniency and she was not threatened in any capacity. The sheriff
merely utilized an appeal to emotion and urged her to confess to spare Junior
harsher legal consequences, a permissible tactic since Byrom was not thereby
deprived of knowledge essential to an understanding of her rights and the
consequences of waiving them. Hopkins, 325 F.3d at 584.
      Byrom relies on cases like Lynumn to claim that law enforcement threats
regarding relatives, especially one’s children, are particularly coercive. In
Lynumn, the police made serious threats regarding unrelated matters, such as
the defendant’s access to welfare benefits and custody of her children, and they
did so in a way that left the defendant with “no reason not to believe that the
police had ample power to carry out their threats.” 372 U.S. at 534 (“These
threats were made while she was encircled in her apartment by three police
officers and a twice convicted felon who had purportedly ‘set her up.’ There was
no friend or adviser to whom she might turn.”). However, no comparable
conduct occurred here. The sheriff told Byrom that she and Junior were at risk
as long as the triggerman remained free and stated that Junior’s confession
meant he was facing serious repercussions. The sheriff’s statements implicated
Byrom’s son, but only because he was in fact a suspect. It was not incorrect to
tell Byrom that admitting her role in the plot could spare Junior a harsher

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                                  No. 11-70026

punishment. Junior was not threatened with physical harm, and Byrom was not
threatened by the sheriff. Byrom was in a safe setting and was not encircled by
law enforcement officials. There was no official overreach or direct coercion.
Since neither AEDPA exception applies, we deny Byrom’s claim. See Richter,
131 S. Ct. at 787.
      D.    Consideration of Mitigating Evidence
      Byrom also claims that the trial court erred when it failed to consider all
of the mitigating evidence she presented at sentencing. Specifically, Byrom
urged the court to consider (1) that she had no significant criminal history; (2)
that she committed the crime under the influence of extreme mental and
emotional disturbances; (3) that Edward was a participant in the crime since his
abuse provoked the crime; and (4) that her ability to appreciate the criminality
of her conduct or conform it to the requirements of the law was substantially
impaired. At sentencing, the court made the following oral statement:
      The Court, likewise, considered the mitigating factors, specifically,
      that the defendant had no prior criminal record of any kind, so far
      as the record indicates. And, further, the Court has considered the
      assertion that the defendant was acting while under the influence
      of some extreme mental or emotional disturbance. Parenthetically,
      the Court would observe that these factors are the only factors
      suggested which would appear and bear consideration by this Court.

Byrom claims that this portion of the trial court’s colloquy indicates that the
court failed to consider some of Byrom’s mitigating evidence, thereby
undermining her death sentence. She argues that the trial court conceded its
failure to fully consider Byrom’s mitiating evidence when it noted that only two
of her mitigating claims “bear consideration.” The Mississippi Supreme Court
subsequently denied Byrom’s claim, finding that the trial court in fact considered
all mitigating circumstances. See Byrom v. State, 863 So. 2d 836, 881–82 (Miss.




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                                  No. 11-70026

2003). For the reasons that follow, the Mississippi Supreme Court did not
misapply clearly established federal law when it denied Byrom’s claim.
      In capital cases, the sentencer may not refuse to consider mitigating
evidence. Hitchcock v. Dugger, 481 U.S. 393, 394 (1987). The exclusion of
mitigating evidence can invalidate a death sentence. Id. at 399. “The sentencer,
and the Court of Criminal Appeals on review, may determine the weight to be
given relevant mitigating evidence. But they may not give it no weight by
excluding such evidence from their consideration.” Eddings v. Oklahoma, 455
U.S. 104, 114–15 (1982).
      Byrom’s claim fails for two reasons. First, and most importantly, the trial
court did in fact consider all of Byrom’s mitigating evidence. The trial court’s
sentencing determination was not limited to the oral statements made in court.
The court also entered a formal written sentencing order. In that order, the trial
court’s sentencing determination was prefaced by the following language, which
clearly establishes that the court considered all mitigating evidence:
      The court, having considered each of the mitigating factors suggested
      by the Defendant and all other mitigating circumstances concerning
      the Defendant’s character and history and the circumstance[s] of the
      offense which might be considered mitigating on behalf of the
      Defendant, and having weighed the aggravating factor[s] against
      the mitigating factors finds that the mitigating factors do not
      outweigh or overcome the aggravating circumstances and that the
      death penalty should be imposed. (emphasis added)

As this text makes clear, the trial court considered all of Byrom’s mitigating
evidence and simply determined that it did not overcome the aggravating
circumstances also deemed present.
      Second, to the extent Byrom claims that the court’s colloquy conflicts with
the written sentencing order, the language cited by Byrom does not actually
demonstrate that the trial court refused to consider mitigating evidence. When
the trial court stated that only two of Byrom’s proposed mitigating factors “bear

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                                 No. 11-70026

consideration,” the court was not refusing to consider the other two factors.
Rather, the court used the verb “bear” in the sense of “to call for” or “to have
relevance.” The American Heritage Dictionary of the English Language 161 (3d
ed. 1996). As the court clarified in its written sentencing order, two of Byrom’s
proposed mitigating factors lacked merit. That is, the trial court evaluated all
of the mitigation factors proposed by Byrom, but found two had little relevance
to the final sentencing determination.      In that sense, they did not “bear
consideration.” Fair minded jurists could not disagree. See Richter, 131 S. Ct.
at 786. Therefore, we deny Byrom’s claim.
      E.    Ineffective Counsel Regarding Mitigating Evidence
      Byrom’s last claim alleges that she received ineffective assistance of
counsel because her trial attorneys failed to adequately investigate and present
mitigating evidence at the penalty phase of the trial. In order to make an
ineffective assistance of counsel claim, Byrom must show that her attorneys’
performance “fell below an objective standard of reasonableness” and that the
deficient performance prejudiced her case. Strickland v. Washington, 466 U.S.
668, 688 (1984). The attorneys’ representation must fall below an objective
standard of reasonableness such that “counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Feldman v. Thaler, 695 F.3d
372, 377–78 (5th Cir. 2012) (quoting Strickland, 466 U.S. at 687). Byrom “must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. at 378 (quoting Strickland, 466
U.S. at 689).
      Further, under AEDPA, the crucial question is whether the state court
unreasonably applied Strickland. Harrington v. Richter, 131 S. Ct. 770, 785
(2011); Williams v. Thaler, 684 F.3d 597, 604 (5th Cir. 2012). When considering
a habeas petition, our inquiry focuses on “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Richter, 131

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                                  No. 11-70026

S. Ct. at 788. “[A] habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision; and then
it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of
this Court.” Id. at 786.
      Prejudice is shown when there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. In the sentencing context, Byrom must
establish “a reasonable probability that a competent attorney, aware of [the
mitigating evidence available], would have introduced it at sentencing,” and that
there is a reasonable probability that the sentence would have been different as
a result. Wong v. Belmontes, 130 S. Ct. 383, 386 (2009) (quoting Wiggins v.
Smith, 539 U.S. 510, 535, 536 (2003)) (alteration in original). “[T]he question is
whether there is a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Cullen v. Pinholster, 131 S. Ct. 1388,
1408 (2011) (alteration in original) (quoting Strickland, 466 U.S. at 695).
      Byrom claims that she received ineffective assistance of counsel because
her trial attorneys failed to adequately investigate potential mitigating evidence
before sentencing and failed to present mitigating evidence at sentencing.
Counsel interviewed a number of Byrom’s family members, but Byrom claims
counsel should have pursued further leads after uncovering evidence of
persistent abuse in Byrom’s childhood and adult life. Moreover, at sentencing,
Byrom’s trial counsel only offered psychiatric reports and medical evaluations
detailing Byrom’s abuse and the numerous mental and physical ailments she
has suffered from. As the record makes clear, Byrom suffered a childhood of
mental, physical, and sexual abuse at the hands of her stepfather, and yet more
abuse at the hands of Edward. Despite the availability of at least six family

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                                  No. 11-70026

members able and willing to personally attest to the violence Byrom was
subjected to, trial counsel did not present a single live witness at sentencing.
Instead, trial counsel relied on psychiatric reports and medical records,
supposedly because of a tactical decision to withhold witness testimony in
anticipation of a new trial. Byrom has pressed these ineffective assistance of
counsel claims at each stage of review.        Because the Supreme Court of
Mississippi issued a reasoned opinion on point, it is that decision we review in
applying the standard of review provided by AEDPA. Jackson v. Johnson, 194
F.3d 641, 651 (5th Cir. 1999).
      A divided Mississippi Supreme Court decided that Byrom had not received
ineffective assistance of counsel at her sentencing. Despite finding that Byrom’s
trial counsel made a “perplexing” choice by not presenting live mitigating
evidence, the majority opinion nevertheless held as “speculative” the proposition
that testimony already known to the trial judge would have “been any more
convincing or persuasive if presented through witness testimony.” Byrom v.
State, 927 So. 2d 709, 720–21 (Miss. 2006). On the other hand, the dissent
struggled to find “a more egregious case of ineffective assistance of counsel
during the sentencing phase of a capital case.” Id. at 732 (Dickinson, J.,
dissenting). For the reasons that follow, applying § 2254(d)(1), the Mississippi
Supreme Court did not unreasonably apply Strickland to Byrom’s claim of
failure to investigate or to her claim of failure to present mitigating evidence.
      1.    Investigation of mitigating evidence.
      Byrom claims that her trial counsel were aware of her extensive history
as a victim of abuse, but that they entirely failed to investigate potential
evidence on point. However, trial counsel clearly stated that they interviewed
potential witnesses, including members of Byrom’s family. In fact, counsel went
so far as to make arrangements so that out-of-state family members could be in
Iuka, Mississippi for Byrom’s trial. Indeed, in October 2000, one of Byrom’s

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                                  No. 11-70026

attorneys furnished a list of nine witnesses for trial, most of whom were family
members who could confirm Byrom’s history as a victim of abuse.
      In support of her claim, Byrom primarily relies on the fact that her trial
attorneys could not recall the specific names of which family members they
interviewed in anticipation of trial. She also points to statements from family
members claiming that they were not contacted by trial counsel. Nevertheless,
other family members capable of providing further corroboration of abuse
suffered were both interviewed by counsel and present in Iuka for the trial.
Byrom has not identified what additional information would have been
uncovered had her trial counsel interviewed additional family members. While
those who were interviewed presented a picture of abuse, their accounts largely
overlap and cover nearly identical details. Such claims thus do not demonstrate
that the state court’s application of Strickland was unreasonable or contrary to
established federal law.      Fairminded jurists could not disagree with the
Mississippi Supreme Court’s determination that Byrom’s attorney conducted a
reasonable investigation under Strickland. Accordingly, we deny Byrom’s claim.
Richter, 131 S. Ct. at 786.
      2.    Presentation of mitigating evidence.
      At sentencing, Byrom’s attorneys declined to present witness testimony
regarding Byrom’s history of abuse, and instead opted to present two psychiatric
reports detailing Byrom’s claims of abuse and the various maladies diagnosed,
as well as a medical evaluation detailing Byrom’s many other illnesses. There
are at least six family members Byrom’s attorneys could have presented at
sentencing, some of whom had directly witnessed the abuse Byrom suffered at
the hands of both her stepfather and husband. These witnesses would have
substantiated claims regarding the alcoholism of Edward and Byrom’s
stepfather, as well as both men’s verbal, physical, and sexual abuse of Byrom.
The psychiatric reports presented at sentencing nevertheless covered much of

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                                  No. 11-70026

the same information; and Byrom’s history as a victim of abuse was addressed
at trial as well.
      Despite acknowledging that Byrom’s attorneys made a “perplexing”
decision in their refusal to present witness testimony at sentencing, the
Mississippi Supreme Court held that the witnesses’ potential testimony, of
which the trial judge was already aware, would not likely have been any more
persuasive if presented through live witness testimony. Byrom v. State, 927 So.
2d 709, 721 (Miss. 2006). The state court viewed this decision as a strategic one;
Byrom’s attorneys sought to reserve the family members’ testimony in the event
of a new trial. Further, the Mississippi Supreme Court held that Byrom’s claim
of prejudice was speculative at best. Id. As explained below, the Mississippi
Supreme Court did not unreasonably apply Strickland.
      “[E]vidence about a defendant’s background and character is relevant
because of the belief, long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable than defendants who have
no such excuse.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989). The right to have
mitigating evidence presented means little, however, if counsel fails to present
a case for mitigation at sentencing. Strickland v. Washington, 466 U.S. 668, 706
(1984) (Brennan, J., concurring) (citing Helen Gredd, Comment, Washington v.
Strickland: Defining Effective Assistance of Counsel at Capital Sentencing, 83
Colum. L. Rev. 1544, 1549 (1983)). That said, Strickland does not “require
defense counsel to present mitigating evidence at sentencing in every case.”
Wiggins v. Smith, 539 U.S. 510, 533 (2003). A petitioner challenging the
adequacy of counsel’s conduct must show that counsel’s conduct fell below the
standard guarantee by the Sixth Amendment, as well as prejudice: a reasonable
probability that, but for counsel’s unprofessional errors, the proceeding’s result
would have been different. Id. at 534.

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                                  No. 11-70026

      Here, Byrom’s counsel made the unusual decision to withhold mitigating
witness testimony at sentencing in hopes of reserving said testimony for an
anticipated retrial. Counsel instead elected to rely on a series of medical reports
detailing Byrom’s abuse and the various illnesses she suffered as a result of the
abuse. However, even assuming arguendo that counsel’s strategic decision fell
below the standard required by Strickland, it cannot be said that Byrom was
prejudiced.
      In order to find prejudice here, there must exist a reasonable probability
that Byrom would not have received a death sentence had counsel introduced the
live testimony of Byrom’s family members. The Supreme Court has instructed
that “[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In Wiggins, the
Supreme Court found prejudice where the petitioner’s attorney had failed to
investigate and present substantial mitigating evidence at the petitioner’s jury
sentencing. 539 U.S. at 534–36. The omitted mitigating evidence included
would-be accounts of substantial abuse and neglect at the hands of the
petitioner’s mother and repeated instances of abuse, molestation, and rape
suffered at various foster homes throughout Wiggins’s childhood. Id. at 516–17.
However, while Wiggins and Byrom each suffered substantial abuse prior to
committing their respective crimes, their cases are otherwise distinguishable.
      Wiggins’s counsel failed to present to the sentencing jury substantial
mitigating evidence that the jury had no other access to. On that basis, the
Supreme Court found that at least one juror would have voted differently had
the jury been presented with Wiggins’s “excruciating life history.” Id. at 537.
Byrom, on the other hand, was sentenced by the same judge that conducted her
trial, and the mitigating evidence at issue was substantively addressed both at
trial and sentencing. In other words, to the extent the judge that sentenced
Byrom was not already aware of Byrom’s mitigating evidence from trial, he was

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                                   No. 11-70026

certainly made aware of Byrom’s history of abuse by virtue of the mitigating
evidence presented at sentencing. The trial judge reviewed Byrom’s medical
records, which included details of the abuse Byrom had suffered, before closing
arguments at sentencing. The live testimony withheld by counsel would thus
have added little to the judge’s sentencing decision. It cannot be said that there
exists a reasonable probability that the outcome of Byrom’s sentencing would
have been different had counsel introduced the testimony of Byrom’s family
members.      In considering Byrom’s claim, the Mississippi Supreme Court
reasoned that
        [t]he gist of the family members’ testimony from the affidavits was
        that Byrom was a good person who had lived a difficult life and that
        whatever she did was because she was sick and in a terrible
        situation. However, to argue that this testimony, which was already
        known to the trial judge, would have been any more convincing or
        persuasive if presented through witness testimony, is, at best,
        speculative.

Byrom v. State, 927 So. 2d 709, 721 (Miss. 2006). In light of the reasoning above,
it cannot be said that the state court unreasonably applied Strickland. See
Richter, 131 S. Ct. at 786 (“[A] habeas court must determine what arguments or
theories supported or, as here, could have supported, the state court’s decision;
and then it must ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision
of this Court.”). Therefore, we deny Byrom’s claim.
IV.     Conclusion
        For the above reasons, we DENY Byrom’s motion for an expanded
Certificate of Appealability, AFFIRM the judgment of the district court, and
DENY Byrom’s petition for habeas relief.




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