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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-70030                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                         June 11, 2018
PATRICK HENRY MURPHY,
                                                                        Lyle W. Cayce
              Petitioner - Appellant                                         Clerk


v.

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

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CV-1368


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Patrick Henry Murphy and six other Texas inmates escaped from prison
and then pulled off a string of armed robberies, culminating in the fatal
shooting of a police officer. Murphy was caught, convicted, and sentenced to
death. Murphy’s direct appeal and state habeas application failed, and the
district court denied his federal habeas petition.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-70030
      Murphy now asks this court for a certificate of appealability under
28 U.S.C. § 2253(c)(2) to appeal the denial of his petition for writ of habeas
corpus. He presents three claims that he believes warrant further
development: (1) an Eighth Amendment claim that his criminal culpability
does not permit a death sentence under Enmund v. Florida, 458 U.S. 782
(1982), and Tison v. Arizona, 481 U.S. 137 (1987); (2) an ineffective-assistance-
of-appellate-counsel claim based on appellate counsel’s failure to raise the just-
referenced Enmund/Tison claim on direct appeal; and (3) an ineffective-
assistance-of-trial-counsel claim based on trial counsel’s performance at the
penalty phase of trial. We DENY Murphy’s request on all claims.
                                        I.
                                       A.
      On December 13, 2000, seven inmates escaped from a Texas state prison
located in Kenedy, Texas. The seven inmates—George Rivas, Larry Harper,
Donald Newbury, Randy Halprin, Joseph Garcia, Michael Rodriguez, and
Patrick Henry Murphy—all were serving long sentences for violent crimes.
The newspapers would call this group the “Texas Seven.”
      The breakout happened during lunch. Six of the seven, including
Murphy, had work assignments in the prison’s maintenance department. The
day of the breakout, those six stayed behind during their lunch break to work
in the warehouse. Once most of the people had cleared out for lunch, George
Rivas asked Patrick Moczygemba, a civilian supervisor overseeing their work,
to check some equipment under a table. As Moczygemba bent down, he was
struck on the back of the head and knocked unconscious.
      When he came to, Moczygemba struggled but was quickly subdued when
Joseph Garcia put a shank to his throat. Moczygemba’s clothes were stripped
and he was tied, gagged, blindfolded, and carried to an electrical room. As other
employees and inmates trickled back from lunch, they received similar
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                                 No. 17-70030
treatment. In total, about 14 people were caught and stuffed in the electrical
room.
        Sometime shortly after, the back-gate guard got a phone call from a
person identifying himself as Patrick Moczygemba. The man said maintenance
was en route to install surveillance equipment. Soon after, two inmates—one
of whom was Murphy—and a man dressed as a civilian supervisor (who turned
out to be Larry Harper) showed up at the back gate. Using a telephone call as
a distraction, the inmates overpowered the guard, taped his ankles, handcuffed
him to a chair, and shut him in a restroom. From there, the seven stole a
variety of firearms and ammunition, and fled the prison in a stolen vehicle.
        The group then headed to Irving, Texas, where they hatched a plan to
rob Oshman’s Supersports on December 24. It was during the Oshman’s
robbery that Officer Aubrey Hawkins was shot and killed.
        Fifteen minutes before Oshman’s closed, George Rivas and Larry Harper
entered the store disguised as security guards. The other escapees—besides
Murphy—were already inside, spread around the store, and pretending to be
customers. Murphy was parked in Oshman’s lot in a Chevrolet Suburban. He
was, in his words, the “backup and lookout.”
        Back in the store, Rivas and Harper approached a store manager and
told him they were investigating a local shoplifting ring. Rivas convinced the
manager to let him check the store’s security tapes. After viewing the tapes,
Rivas said they did not help his investigation, and they returned to the store
floor. By then, most of the store employees were gathered at the front, talking
with Harper. With them gathered, Rivas announced that they were robbing
the store.
        The escapees surrounded the employees, guns drawn. The employees
surrendered, got patted down, and were walked to a breakroom in the back.
Rivas took the store manager back through the store, grabbing cash from the
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                                    No. 17-70030
registers and guns from the gun department. The manager was then returned
to the back, where he and the other employees were tied up. Rivas took the
keys to the manager’s Ford Explorer and told the other escapees to meet him
behind the store. Rivas left Oshman’s, retrieved the manager’s Explorer, and
drove it around to the back of the store. While Rivas was retrieving the car, a
witness who spotted some of the events inside Oshman’s called the police.
         Back inside the store, the manager heard someone on the radio tell the
escapees to hurry up and get out because they “had company.” Another
employee said he heard, “Come on, we got to go. We got to go. We got company.”
         Officer Aubrey Hawkins was the company. He was the responding
officer, sent to Oshman’s on a suspicious persons call. When he drove around
the store to the back, a firefight ensued. Hawkins was shot multiple times
(Rivas and Halprin were as well). Hawkins was then pulled out of his car, run
over, and dragged several feet by the escapees fleeing the scene in the Explorer.
At the scene, Hawkins was found lying face down on the ground without a
pulse.
         The six in the Explorer met up with Murphy at a nearby apartment
complex. From there, they headed to Colorado. A little less than a month after
the shooting, Murphy and five of the other escapees were captured (Larry
Harper committed suicide before being taken). Murphy and the surviving
escapees were brought back to Texas, charged with capital murder, and
informed that Texas would seek the death penalty in all their cases. 1
                                           B.
         Pursuant to Texas’s death-penalty scheme, Murphy’s trial was split into
guilt and penalty phases. Central to the State’s case for Murphy’s guilt was a


        All the surviving escapees were sentenced to death. George Rivas, Donald Newbury,
         1

and Michael Rodriguez have been executed. Joseph Garcia and Randy Halprin currently sit
on death row.
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                                 No. 17-70030
statement Murphy wrote for police after he was captured. In this statement,
Murphy explained the rationale for the robbery, his role in the heist, and what
occurred.
      Murphy wrote that the group picked Oshman’s because it had a wide
range of weaponry and clothing. Their goal was to increase their “arsenal” and
ditch the guns taken from prison. Murphy explained that members of the group
“were pretty much equal,” and they “weighed the pro’s and con’s” of robbing
Oshman’s. Murphy added that he was against the plan because Oshman’s had
a lot of employees and he was afraid of being recognized. Nevertheless, he went
along as the “backup and lookout.”
      To play his part, Murphy had a two-way radio and a radio scanner he
programmed to police frequencies. He also had several loaded guns in the
Suburban—two .357 revolvers, an AR-15, and a .12-gauge pump shotgun.
Murphy knew that the escapees inside the store were similarly armed. Murphy
added that if he were pursued by police, his purpose “was to initiate a firefight
with the AR-15.”
      Murphy also described the events that precipitated Hawkins’s death.
While the robbery was in progress, Murphy spotted a police car and heard over
the scanner a report of suspicious activity at Oshman’s. Murphy radioed the
group “to abort” because the police were there. He told them the patrol car’s
location and the direction it was headed. When he saw the car pass Oshman’s
and pull around to the back, Murphy radioed, “He’s coming around the corner.
Leave. Leave.” Shortly after, one of the other escapees radioed Murphy and
told him to meet them at the pickup point. Murphy secured his guns and
rendezvoused with the group. When they met up, the other escapees told
Murphy they had shot a police officer.
      Murphy’s counsel gave no opening statement, called no witnesses, and
put on no evidence. The jury convicted Murphy of capital murder.
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                                   No. 17-70030
                                       C.
      At the penalty phase, the State introduced Murphy’s prior convictions
for burglary and aggravated sexual assault, called Murphy’s sexual-assault
victim to describe the facts of the at-knifepoint rape, corroborated her story
with several witnesses and DNA evidence, called witnesses to the prison break,
and put on a handwritten note found in Murphy’s prison dormitory. The note
read: “I refuse to abide by the dictations of a police state, which Texas has
surely become. Today I fire the first shot of THE NEW REV[O]LUTION. Long
live freedom. Death to tyranny.”
      To avoid the death penalty, Murphy called several witnesses to testify
about his terrible childhood. Murphy’s aunt testified that after Murphy was
born, his mother would frequently leave him with relatives for long periods
without explanation. When his mother would pick him up, she would be under
the influence of drugs and alcohol. When Murphy was just a few months old,
his mother became pregnant. Murphy’s biological father, according to the aunt,
physically abused his mother such that she miscarried. The two soon divorced.
When Murphy was one and a half, his father lost custody rights over Murphy
by failing to return him one weekend. Murphy’s aunt added that when
Murphy’s father brought him to court for a custody hearing, Murphy was in
bad shape. He, his clothes, and his diaper were dirty, he was covered with
cigarette burns, and his diaper pin went through his skin.
      When Murphy was four, his mother had another child. Soon after the
child was brought home from the hospital, the man Murphy’s mother was
dating raped her, resulting in a two-week hospitalization. After this, Murphy’s
mother became physically abusive towards Murphy, hitting and slapping him.
Murphy’s mother also dated—on-again, off-again—a convicted child molester
who served jail time on weekends. Murphy’s mother continued to drink and
use drugs regularly, and she gave birth to a child that had severe birth defects.
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                                     No. 17-70030
By nine or ten, Murphy became uncontrollable. Around that time, he began
living with his biological father.
      Murphy’s biological father picked up where the aunt left off. He said that
when he regained custody over Murphy, Murphy was dirty and covered in
infected mosquito bites and ringworms. Murphy’s father had to teach him basic
hygiene, like how to bathe and brush his teeth. Murphy’s father admitted he
was frequently away from the house, due to his trucking job. Murphy would
often run away from home.
      On top of evidence of his rough upbringing, Murphy presented evidence
that he would not be a future threat to society. One key witness for this was
S. O. Woods, a former assistant director for the Texas Department of Criminal
Justice institutional division. Before the breakout, Murphy had been
incarcerated for 16 years. During that time, he incurred just three major
disciplinary offenses. Murphy also was not in a prison gang, and, at one time,
he had a projected release date of 2001. Woods said that if Murphy returned to
prison, he would be put in administrative segregation, and would be given just
one hour a day outside of his cell. By contrast, during Murphy’s previous prison
stint, he was housed in a low-security dormitory and had a low-security job.
      Wood’s cross-examination did not go well. The prosecutor asked Woods
about Murphy’s past crimes and the prison break. Eventually, the prosecutor
pressed Woods into admitting that he thought Murphy would be “a very
dangerous inmate.”
      Murphy’s last witness was Doctor Mark Vigen. Vigen—who is a licensed
forensic psychologist with over twenty years of experience at the time of trial—
testified on Murphy’s mental state and future dangerousness. To form the
basis for his opinion, Vigen interviewed Murphy, his family members
(Murphy’s father, aunt, half-brother, two half-sisters, and two cousins), and
two doctors—one psychiatrist and one psychologist—who had previously
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                                       No. 17-70030
evaluated Murphy. Vigen also reviewed Murphy’s pre-prison records (juvenile
records, army records, and arrest records) and his prison records, including
Murphy’s mental-health records, social-services records, and clinical records.
       From this investigation, Vigen reached five conclusions. First, Murphy
has a sexual disorder, not otherwise specified, and narcissistic, borderline, and
antisocial personality traits. 2 Second, the disorder and traits were a result of a
long and severe developmental history of family dysfunction. Specifically,
Vigen isolated Murphy’s experience of childhood neglect, abandonment,
upheaval, physical abuse, and sexual abuse. Third, Murphy was more a
follower than a leader in the escape, robbery, and murder. Fourth, Murphy
presented a very low risk of future violence in prison because Texas would
likely put him in administrative segregation. Fifth and finally, Murphy had
potential for rehabilitation and “personal spiritual conversion” as he aged and
received therapy in prison.
       Both sides rested. After the jury was instructed on Texas’s standard for
a death sentence, it returned answers authorizing imposition of the death
penalty. Murphy was then sentenced to death.
                                              D.
       After Murphy’s direct appeal and state habeas application failed, he filed
a federal habeas petition, which was referred to a magistrate judge. In it,
Murphy attacked the constitutionality of his death sentence. Specifically,
Murphy argued that the test for imposing the death penalty on a non-
triggerman under Enmund v. Florida, 458 U.S. 782 (1982), and Tison v.
Arizona, 481 U.S. 137 (1987), was not satisfied. Murphy argued that under



       2 Vigen explained the difference between disorders and traits. A disorder is a group of
symptoms that causes personal distress, dysfunction, loss of freedom, or the threat of death.
By contrast, a trait is less severe. It meets some criteria of the associated disorder but not a
sufficient number to cause distress or dysfunction.
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Enmund/Tison, the death penalty may only be imposed on a non-triggerman
that at least: (1) “played a major role in the criminal activities leading to [the]
death,” and (2) “displayed reckless indifference to human life.” See Foster v.
Quarterman, 466 F.3d 359, 370 (5th Cir. 2006). According to Murphy, the jury
instructions across both stages of his trial were worded in such a way that the
jury could have sentenced him to death without making either finding.
      Murphy also brought two relevant claims not raised before any state
court. He raised an ineffective-assistance-of-appellate-counsel (IAAC) claim,
attacking state appellate counsel’s failure to raise his Enmund/Tison claim. He
also brought an ineffective-assistance-of-trial-counsel (IATC) claim, attacking
trial counsel’s performance at the penalty phase.
      The magistrate judge held an evidentiary hearing to determine whether
Murphy could excuse his procedural default of these ineffectiveness claims via
Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013).
Ultimately, the magistrate judge recommended denial of all Murphy’s claims
as procedurally barred and meritless. The district court adopted this
recommendation, and also declined to issue a certificate of appealability (COA)
on any of Murphy’s claims. Murphy now seeks a COA from this court.
                                        II.
      We may issue a COA only when “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “At the
COA stage, the only question is whether the applicant has shown that ‘jurists
of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further’”—that is, whether the applicant’s
claims are “debatable.” Buck v. Davis, 137 S. Ct. 759, 773-74 (2017) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003)).


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      Despite this lenient standard, issuance of a COA is not automatic.
See Miller-El, 537 U.S. at 337. “A prisoner seeking a COA must prove
‘something more than the absence of frivolity’ or the existence of mere ‘good
faith’ on his or her part.” Id. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880,
893 (1983)). If a district court dismisses a claim on procedural grounds (as was
the case here), a COA should issue only if (1) “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right,” and (2) “jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” See Slack v. McDaniel,
529 U.S. 473, 484 (2000).
      In this case, Murphy seeks a COA on three constitutional claims:
      (1) Murphy claims he was sentenced to death without either necessary
          finding under Enmund/Tison for imposition of the death penalty on a
          non-triggerman.
      (2) Murphy next claims that if his state appellate counsel failed to raise
          his Enmund/Tison claim on direct appeal, then appellate counsel
          rendered constitutionally deficient assistance.
      (3) Murphy finally claims he was deprived of effective assistance of
          counsel in the penalty phase of his trial.
We consider each claim in turn. We ultimately conclude that all three are
undebatably procedurally barred. Thus, we deny a COA on all three claims.
                                       III.
      Murphy’s Enmund/Tison claim is clearly procedurally barred. But an
extended digression into the path Murphy’s Enmund/Tison claim took to get to
us is necessary to understand why.
      At the guilt phase of Murphy’s trial, the jury was instructed on a total of
four theories of capital murder. The jury was presented with two potential
theories on the means or method of capital murder—murder of a peace officer
and murder in the course of a robbery. See Tex. Penal Code Ann. § 19.03(a)(1),

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                                  No. 17-70030
(2). The jury was also given two so-called “law of parties” instructions—aider
and abettor liability and conspiracy liability. See id. § 7.02(a), (b). This created
a total of four potential theories of guilt (two means or methods times two
criminal liability theories).
      Before the jury was instructed, Murphy raised a variety of objections.
Three of those objections are relevant here. First, he asked “the Court to enter
an instructed verdict based on” Enmund, as the evidence failed to show that
Murphy killed or attempted to kill Officer Hawkins. Next, Murphy asked the
court to force the state to elect one of the two means or methods of capital
murder—killing a police officer or murder during a robbery. Murphy argued
that if both theories were given to the jury, the jury could split on the theories
and still return a unanimous verdict. This, according to Murphy, would violate
a constitutional requirement of jury unanimity. Finally, Murphy asked for an
election between the two law of parties instructions—aider and abettor or
conspiracy liability—again, based on jury unanimity concerns. All three
objections were overruled.
      At the penalty phase, the jury was instructed on Texas’s standard for
imposing the death penalty. See Tex. Code Crim. Proc. Ann. art. 37.071 § 2.
The jury received the traditional future-dangerousness and mitigating-
circumstances special issues. See id. § 2(b)(1), (d)(1). But in addition, because
the guilt-phase charge allowed the jury to find Murphy guilty as a party, the
jury was given a modified version of the so-called “anti-parties” special issue
meant to render a death sentence Enmund/Tison compliant. See id. § 2(b)(2).
The jury was asked, “do you find from the evidence beyond a reasonable doubt
that the defendant . . . intended to kill the deceased or another or anticipated
that a human life would be taken.” Murphy objected to this wording, claiming
that it was not enough to render a potential death sentence Enmund/Tison


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                                 No. 17-70030
compliant. The court overruled this objection, and the jury received the anti-
parties special issue described above.
      After being convicted and sentenced, Murphy filed a direct appeal to the
Texas Court of Criminal Appeals (TCCA), where he raised 42 points of error.
He broke his claims into four categories: “Issues on Voir Dire,” “Issues on
Trial,” “Issues on Punishment,” and “Constitutional Issues.” Murphy’s
eighteenth point—which fell in the “Issues on Trial” section—addressed
Enmund. We reproduce it in full below:
                                 Issue No. 18
            The trial court erred in overruling appellant’s
      objection to the jury charge concerning the applicability of
      sec. 7.02(b) (conspirator liability) of the law of parties as
      being contrary to the constitutional requirements of
      Enmund v. Florida, supra; which requires that there be
      specific intent of the accused to kill or to cause the loss of
      life
                        Arguments and Authorities
      Appellant directs this Honorable Court’s attention to Rep. R. Vol.
      44 pp. 4-5 at which Appellant objected to the jury submission
      dealing with the law of parties as applied by the trial court in this
      case as it violated the holding of the United States Supreme Court
      in Enmund v. Florida, supra; which has specific requirements not
      found in the Texas Death Penalty Statute before death can be
      imposed as a possible punishment. The trial court erred in using
      language on issues not sanctioned by the Enmund case; which calls
      for reversal and new punishment hearing or rendering of a life
      sentence.
      The TCCA overruled this point of error. Murphy v. State, No. AP–74,851,
2006 WL 1096924, at *21 (Tex. Crim. App. Apr. 26, 2006) (not designated for
publication). Per the TCCA, Murphy only raised a challenge to the
constitutionality of his conviction under Enmund. Id. This reliance on Enmund
was misplaced according to the TCCA: “Enmund prevents imposition of the
death penalty under certain circumstances; it does not prohibit a capital

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murder conviction for a non-triggerman under the law of parties.” Id. (citing
Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992)). The TCCA
recognized that Murphy “made an Enmund objection at the punishment phase
of the trial, but in his brief he cites and refers only to his objection at the guilt
or innocence phase.” Id. at *21 n.58.
      Following the failure of his direct appeal, Murphy once again raised an
Enmund/Tison claim in his state habeas application. This time, he broke the
claim into two parts and made clear he was attacking his conviction and death
sentence. The state habeas court found both claims procedurally barred and
alternatively meritless. Murphy’s attack on his sentence was procedurally
defaulted based on Ex parte Ramos, 977 S.W.2d 616, 617 (Tex. Crim. App.
1998), per the state court because Murphy did not avail himself of the
opportunity to raise it on direct appeal. The TCCA adopted the state habeas
court’s findings and denied Murphy’s application. Ex parte Murphy, No. WR–
63,549–01, 2009 WL 1900369, at *1 (Tex. Crim. App. July 1, 2009) (per curiam)
(not designated for publication).
      Based on this procedural history, it is undebatable that Murphy’s
Enmund/Tison claim is procedurally barred. Under the doctrine of procedural
default, we are precluded from reviewing “claims that the state court denied
based on an adequate and independent state procedural rule.” Davila v. Davis,
137 S. Ct. 2058, 2064 (2017). The state habeas court’s finding of procedural
default   constitutes    such   a denial.     The   state      court held    Murphy’s
Enmund/Tison attack on his sentence procedurally defaulted under Ramos,
977 S.W.2d at 617, a case which in turn relies on Ex parte Gardner, 959 S.W.2d
189, 199 (Tex. Crim. App. 1996), clarified on reh’g (Feb. 4, 1998). This rule from
Gardner—which bars consideration of claims that could have been but were
not raised on direct appeal—is “an adequate state ground capable of barring


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                                  No. 17-70030
federal habeas review.” Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005)
(quoting Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)).
      Murphy makes neither of the traditional arguments to excuse his
default: that (1) cause for the default and actual prejudice exist, or (2) failure
to consider his claim will result in a miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Instead, Murphy’s only retort is that the
TCCA and state habeas court misapplied their own rules. But we cannot
review the correctness of the state court’s application of its own rule: “[I]t is
not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); see also Nobles v. Johnson, 127 F.3d 409, 419 n.21 (5th Cir. 1997)
(“[I]nsofar as [the petitioner] asks us to review the state court’s application of
state law, his claims are outside the scope of federal habeas review.”).
      Thus, as Murphy’s Enmund/Tison claim is undebatably procedurally
barred, we deny a COA on it.
                                       IV.
      Murphy next contends that if his appellate counsel failed to raise his
Enmund/Tison claim on direct appeal, then appellate counsel rendered
constitutionally deficient assistance. We will not linger on this claim as it is
undebatably procedurally barred.
      Murphy did not raise this IAAC claim in his original state habeas
application. This failure renders it unexhausted. See Martinez v. Johnson,
255 F.3d 229, 238 (5th Cir. 2001). His unexhausted claim is procedurally
barred if Texas courts would treat the claim as procedurally defaulted if
presently raised. See Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004).
Texas courts would do so under the abuse-of-the-writ doctrine, a doctrine we
recognize as an adequate and independent procedural rule in this context. See
Rocha v. Thaler, 626 F.3d 815, 832 (5th Cir. 2010); Beazley v. Johnson, 242
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                                 No. 17-70030
F.3d 248, 264 (5th Cir. 2001). Murphy does not argue that an exception to this
procedural bar is available. And none would be. The Supreme Court has
recently held that default of an IAAC claim cannot be excused by
ineffectiveness of habeas counsel via Martinez and Trevino. See Davila,
137 S. Ct. at 2063-64. Thus, as Murphy’s IAAC claim is procedurally defaulted
with no debatable case for excuse, we deny a COA on it.
                                        V.
      Murphy’s final claim is that trial counsel rendered constitutionally
deficient assistance at the penalty phase. As this IATC claim was not raised in
Murphy’s state habeas application, Murphy normally would be barred from
raising it. See Bagwell, 372 F.3d at 755; Beazley, 242 F.3d at 264. But as this
claim asserts ineffectiveness of trial not appellate counsel, Murphy may
overcome this bar via the exception to procedural default set forth in Martinez
and Trevino. See Davila, 137 S. Ct. at 2062-64.
      Under Martinez and Trevino, Murphy may show cause and prejudice to
excuse his default. To show cause, Murphy must demonstrate: “(1) that his
claim of ineffective assistance of counsel at trial is substantial—i.e., has some
merit—and (2) that habeas counsel was ineffective in failing to present those
claims in his first state habeas proceeding.” Garza v. Stephens, 738 F.3d 669,
676 (5th Cir. 2013). Conveniently, the test for whether Murphy’s underlying
claim is “substantial” is the same as the one for granting a COA—that is, the
test is whether the claim is debatable by reasonable jurists. Trevino v. Davis,
861 F.3d 545, 548-49 (5th Cir. 2017).
      Most of the action on this claim pertains to prong one of Martinez and
Trevino—whether Murphy’s underlying IATC claim is “substantial.” This
underlying IATC claim is governed by the well-known Strickland standard.
Murphy must show: (1) that his trial counsel rendered deficient performance,


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                                  No. 17-70030
and (2) that this deficient performance resulted in actual prejudice.
See Rhoades v. Davis, 852 F.3d 422, 431 (5th Cir. 2017).
      The first prong of Strickland “sets a high bar.” Buck, 137 S. Ct. at 775.
“To demonstrate deficient performance, the defendant must show that, in light
of the circumstances as they appeared at the time of the conduct, ‘counsel’s
representation fell below an objective standard of reasonableness’ as measured
by ‘prevailing professional norms.’” Rhoades, 852 F.3d at 431-32 (quoting
Strickland, 466 U.S. at 687-88). “Restatements of professional standards,” like
the American Bar Association’s (ABA) Guidelines for defense attorneys, “can
be useful as ‘guides’ to what reasonableness entails, but only to the extent they
describe the professional norms prevailing when the representation took
place.” See Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam). “A court
considering a claim of ineffective assistance must apply a ‘strong presumption’
that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 689).
      To meet the second prong of Strickland, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
      We review the district court’s conclusions of law de novo and factual
findings for clear error. See Woodfox v. Cain, 609 F.3d 774, 788-89 (5th Cir.
2010). “A claim of ineffective assistance of counsel presents a mixed question
of law and fact.” Id. at 789. When confronting a mixed question of law and fact,
we use “a de novo standard by independently applying the law to the facts
found by the district court, as long as the district court’s factual determinations
are not clearly erroneous.” See Richards v. Quarterman, 566 F.3d 553, 561
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                                       No. 17-70030
(5th Cir. 2009) (quoting Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005)).
A district court’s finding of fact is “‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). 3
       For his part, Murphy argues that his procedural default is excused by
Martinez and Trevino and that his underlying IATC claim has at least
debatable merit. He focuses on his underlying IATC claim, arguing that trial
counsel made errors that prejudiced him on both of Texas’s special issues at
the penalty phase—future dangerousness and mitigating circumstances.
       On future dangerousness, Murphy claims that counsel elicited highly
damaging testimony from her own expert—S. O. Woods—on the threat
Murphy would pose if left alive in prison. In the same vein, he claims that a
reasonable investigation would have revealed that Woods would give harmful
testimony when cross-examined and therefore Woods should never have been
called.
       On mitigating circumstances, Murphy claims that counsel failed to
conduct a reasonable mitigation investigation. This meant she never
discovered or developed evidence that Murphy suffers from post-traumatic
stress disorder (PTSD). If the jury knew of this PTSD diagnosis, according to
Murphy, it may have found mitigating circumstances warranted a life-in-
prison sentence rather than death sentence.
       We consider both arguments in turn. For both, we conclude that Murphy
cannot satisfy the first prong of Martinez and Trevino—that his underlying
IATC claim is substantial or debatable.


       3 The strictures of § 2254(d) do not apply as this claim was not presented to the state
courts. See 28 U.S.C. § 2254(d) (governing only claims “adjudicated on the merits” by the
state courts).
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                                 No. 17-70030
                                       A.
      Murphy’s first alleged error is easily dispensed with. We have previously
held that “[t]he decision whether to present a witness is considered to be
essentially strategic.” See Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010).
A “strategic choice[]” made after “thorough investigation of law and facts
relevant to plausible options [is] virtually unchallengeable.” Strickland, 466
U.S. at 690. “[A]nd [a] strategic choice[] made after less than complete
investigation [is] reasonable precisely to the extent that reasonable
professional judgment[] support[s] the limitation[] on investigation.” Id. at
690-91.
      Here, counsel’s decision to call Woods was an informed, strategic choice
that simply backfired. At the evidentiary hearing, Murphy’s lead trial counsel
explained Woods’s perks: he was a former warden, “a nationally respected
expert” on prison safety, and he told trial counsel that he did not think Murphy
would be a danger when placed in administrative segregation. In fact, trial
counsel had spoken with Woods several times before trial and thought he
would say that Murphy would not be a future threat in prison. Woods’s
damaging concession surprised trial counsel because it contradicted what he
had told her in private. Based on this investigation, the fact that Woods
buckled under cross-examination does not show that calling him was
strategically unreasonable. See id.
      And either way, the impact of Woods’s admission is not measurably more
damaging than the facts already before the jury. The evidence of Murphy’s
future dangerousness was already overwhelming. Murphy had been convicted
of aggravated sexual assault and burglary. He had coordinated with others to
break out of prison, during which his group violently incapacitated numerous
people. He and the group were able to pull off an armed robbery during which
a police officer was killed. Woods’s opinion—that Murphy was a “very
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                                  No. 17-70030
dangerous inmate”—had no reasonable probability of changing the jury’s mind
on the future-dangerousness issue given all this other evidence. See id. at 694.
                                        B.
      Murphy’s second alleged error—which relates to trial counsel’s
mitigation investigation—is also undebatably meritless. Viewed in its totality,
without nitpicking or allowing hindsight bias to creep in, trial counsel’s
mitigation investigation was reasonable. A review of the evidence elicited at
the evidentiary hearing amply demonstrates this.
      At the evidentiary hearing, Murphy’s lead trial counsel testified at
length about her mitigation investigation. She explained that her main goal at
trial was to save Murphy’s life. Accordingly, she started looking for mitigation
evidence soon after she was appointed to Murphy’s case in 2001. She quickly
hired a fact investigator. She and the investigator tracked down and
interviewed Murphy’s family, ex-girlfriends, and his ex-wife. They also
gathered and reviewed Murphy’s relevant records from schools, doctors, and
prison.
      In late June 2003, the Supreme Court decided Wiggins v. Smith, 539 U.S.
510 (2003). In Wiggins, the Supreme Court granted an ineffective-assistance-
of-trial-counsel claim based on trial counsel’s failure to conduct an adequate
mitigation investigation. See id. at 514, 519. Specifically, the Court held that
counsel’s failure in that case to retain a forensic social worker to prepare a
social-history report on their client when funding was available rendered
counsel’s assistance constitutionally ineffective. Id. at 524.
      According to counsel, Wiggins changed the prevailing norms on defense
counsel’s responsibilities with respect to mitigation investigations. Before
Wiggins, counsel said lawyers still had to conduct a mitigation investigation,
but it was not incumbent upon lawyers to retain a mitigation expert.
Accordingly, before Wiggins, Dallas County judges were hesitant to pay for a
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                                      No. 17-70030
separate mitigation expert. But after Wiggins, Murphy’s trial judge expressed
willingness to pay for one. After getting the green light, trial counsel began
looking for a mitigation expert.
       Counsel got solicitations from a slew of “mitigation experts,” but they all
seemed suspect to her. Counsel, who was following the trials of the other
members of the Texas Seven, thought that the mitigation experts in those cases
were subpar. Instead of relying on solicitations, trial counsel made her own
calls, and eventually got in touch with a psychologist she had worked with
before. That psychologist recommended Doctor Mark Vigen. Lead counsel met
Vigen, liked him, liked his curriculum vitae, and figured he would look good in
front of a jury. She formally hired Vigen in September 2003.
       When hired, Vigen had no specialized training or education as a
mitigation investigator. Rather, he was an experienced forensic psychologist.
Trial counsel knew this, but thought that few people had adequate training as
mitigation investigators at the time. 4 She also lacked any confidence in the
people who reached out to her.
       Vigen was hired over two months before the guilt phase of Murphy’s
trial. Between when he was hired and trial, Vigen reviewed Murphy’s records,
spoke with other doctors, evaluated Murphy, and interviewed Murphy’s family.
Vigen reviewed Murphy’s brain scans and neurological tests administered by
other doctors. Before trial, Vigen relayed to counsel what he testified to at



       4 After the hearing, Murphy tried to submit affidavits impeaching trial counsel’s
testimony on this point. He submitted affidavits from mitigation experts who claimed to have
been practicing in Dallas before 2003. The magistrate judge held that Murphy waived the
opportunity to impeach trial counsel with these documents because they were not presented
at the hearing. While Murphy argues that this ruling was erroneous, he cites no authority
for his argument. Accordingly, his argument is forfeited. See United States v. Scroggins,
599 F.3d 433, 447 (5th Cir. 2010); see also Fed. R. App. P. 28(a)(8)(A) (stating that briefs
“must contain” the “appellant’s contentions and the reasons for them, with citations to the
authorities . . . on which the appellant relies”).
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                                      No. 17-70030
trial—namely, that Murphy had a sexual disorder as well as narcissistic,
borderline, and antisocial traits; the disorder and traits were caused by
childhood neglect and abuse; Murphy was more of a follower than a leader;
Murphy had a low risk of future violence; and Murphy could be rehabilitated.
Based on all of this, trial counsel’s strategy was to show Murphy was a follower,
an ineffective criminal, and had a terrible childhood that led to bad decisions.
Her plan was to distance Murphy from “the really bad criminals he escaped
with.”
         To support his case that trial counsel’s mitigation investigation was
lacking, Murphy submitted an affidavit of a psychologist, Doctor Behk Bradley-
Davino, who reviewed Vigen’s notes and the trial testimony of Murphy’s father
and aunt. Based on this review, Bradley-Davino determined that Murphy
displayed behaviors and problems associated with PTSD. According to the
Bradley-Davino, an in-person comprehensive psychological assessment taking
into account PTSD was warranted. While Murphy’s petition was pending, he
was given another round of psychological tests by Doctor John Fabian. This
evaluation revealed that he suffers from PTSD. 5
         At the evidentiary hearing, trial counsel was shown Fabian’s report.
Trial counsel swore that she was aware from her investigation of all the sources
of trauma Fabian’s report identified. But she did not pursue PTSD as a
mitigation theory because neither Vigen nor three other mental health experts
who evaluated Murphy suggested to trial counsel that Murphy might have
PTSD. Counsel added that if Murphy had been diagnosed with PTSD or
someone had raised the suggestion, she would have used it at trial because “it



         The State submitted its own expert reports claiming that Murphy did not suffer from
         5

PTSD. As reasonable jurists could debate whether Murphy suffers from PTSD, we will
assume without deciding for the sake of the COA analysis that Murphy did in fact have PTSD
at the time of trial. See Buck, 137 S. Ct. at 773-74.
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                                      No. 17-70030
would have dovetailed perfectly” with the defense case that Murphy “was a
product of a terrible upbringing.”
       Before this court, to show trial counsel’s ineffectiveness, Murphy argues
that Vigen’s hiring occurred later than it should have. Counsel only started
looking for a mitigation expert after Wiggins was decided. But according to
Murphy, even before Wiggins was decided, it was a prevailing professional
norm for a defense lawyer to hire a mitigation expert as soon as she was
appointed to a death-penalty case. Murphy also argues that Vigen was not
qualified as a mitigation expert. He had no training, education, or experience
in the field, and thus could not perform key tasks like compiling a life and
social history. 6
       We are unpersuaded. On the timeliness argument, Murphy cites no
evidence that pre-Wiggins there was a prevailing norm that lawyers
representing death-penalty defendants had to hire a separate mitigation
expert to compile a life and social history instead of relying on a fact
investigator to track down and interview friends and family. 7 And even if the


       6  See Guidelines for the Appointment and Performance of Def. Counsel in Death
Penalty Cases Guideline 4.1 cmt. B (Am. Bar Ass’n, rev. ed. 2003), reprinted in 31 Hofstra
L. Rev. 913, 959 (2003) [hereinafter 2003 ABA Guidelines] (explaining that mitigation
specialists possess “clinical and information-gathering skills and training,” including the
ability to elicit sensitive information and compile life and social histories).
        7 We note that Murphy’s references to the ABA’s guidelines for defense lawyers are

unavailing. The ABA’s guidelines for defense lawyers on death-penalty cases underwent a
revision in October 2003, over a month after Vigen was hired and months after Wiggins was
decided. The revised guidelines place a duty on trial counsel promptly to retain a mitigation
specialist. See 2003 ABA Guidelines, supra, Guideline 4.1(A)(1), at 952 (“The defense team
should consist of no fewer than two attorneys . . . , an investigator, and a mitigation
specialist.”).
        But the ABA’s prior guidelines, effective at the time Wiggins was decided and when
Vigen was hired, did not provide such a specific command. Instead, defense counsel is
directed to obtain “all reasonably available mitigating evidence.” See Guidelines for
Appointment and Performance of Counsel in Death Penalty Cases Guideline 11.4.1(C)
(Am. Bar Ass’n 1989). To do so, counsel must begin a mitigation investigation immediately
upon appointment, hiring needed investigators. See id. Guideline 8.1 cmt. (“Since pretrial
investigation and preparation are fundamental to attorney competence at trial . . . assigned
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                                         No. 17-70030
delay in hiring Vigen was unreasonable, Murphy presents no link between this
delay and prejudice to his case. Murphy can only speculate that the two-month
window between Vigen’s hiring and trial caused Vigen to overlook PTSD. This
speculation is unevidenced and unwarranted. In addition to citing no evidence
on how much time a psychologist needs to spot PTSD, Murphy has no
explanation for why his other evaluators, who had more than two months, also
failed to spot PTSD.
       Moving on, Murphy’s argument that Vigen was not properly qualified to
be a mitigation expert also falls flat. Again, he fails to cite anything to establish
that at the time Vigen was hired, there were prevailing professional norms
related to mitigation experts’ precise qualifications, training, and role. 8 And
even if there were such norms, counsel’s selection of Vigen was a sound
strategic judgment. Vigen was recommended to her by a psychologist she knew
and trusted. Counsel thought Vigen had a strong curriculum vitae and would
perform well in front of a jury. And counsel concluded that using a psychologist
to organize and present Murphy’s mitigation case would suffice, as other


counsel requires the services of trial assistants such as investigators to gather evidence and
witnesses favorable to the client and to enable counsel to intelligently assess conflicting
options. . . . [C]ounsel in a capital case is obligated to conduct a thorough investigation of the
defendant’s life history and background . . . . Counsel . . . cannot adequately perform these
and other crucial penalty phase tasks without the assistance of investigators and other
assistants.”). While the prior guidelines recommend the use of experts, it does not state that
their use is mandatory to compile and present a social or life history. See id. Guideline 1.1
cmt. (“Utilization of experts has become the rule, rather than the exception, in proper
preparation of capital cases.”); id. Guideline 11.4.1(D)(7)(D) (“Counsel should secure the
assistance of experts where it is necessary or appropriate for: . . . presentation of mitigation.”);
id. Guideline 11.8.3(F) (“In deciding which witnesses and evidence to prepare for presentation
at the sentencing phase, counsel should consider the following: . . . (2) Expert witnesses to
provide medical, psychological, sociological or other explanations for the offense(s) for which
the client is being sentenced, to give a favorable opinion as to the client’s capacity for
rehabilitation, etc. and/or to rebut expert testimony presented by the prosecutor; . . . .”). We
cannot say that it was unreasonable for trial counsel to decide, at least initially, to rely upon
an investigator to compile the factual materials needed for a mitigation case.
       8 The ABA’s guidelines effective at the time Vigen was hired do not mention mitigation

experts, their role, or their requisite qualifications.
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                                      No. 17-70030
lawyers she respected had done. She testified that she thought a psychologist
would be capable of doing the job of a mitigation expert—interviewing people,
conducting and interpreting tests, and guiding counsel on putting together a
mitigation case. Finally, trial counsel did not think she had better
alternatives—she had no confidence in the mitigation experts who reached out
to her. From counsel’s perspective, “there were any number of hypothetical
experts—specialists in psychiatry, psychology, . . . or numerous other
disciplines and subdisciplines—whose insight might possibly have been
useful.” See Richter, 562 U.S. at 107. Given this array of options, we cannot say
that counsel’s reasoned selection of Vigen was even debatably outside “the
range of professionally reasonable judgments.” See Strickland, 466 U.S. at 699.
       In any event, even if Vigen was unqualified to perform the tasks unique
to mitigation experts, Murphy does not explain how that deficit made a
difference. Murphy’s current experts are also psychologists with no
documented training (at least according to their CVs) in mitigation
investigation. Trial counsel and Vigen were aware of the same traumatic
childhood events that Murphy’s current experts used to render a PTSD
diagnosis. Indeed, that trial counsel collected the building blocks for a PTSD
diagnosis and handed them over to her psychologist reflects the reasonableness
of her investigation. In light of this, counsel cannot be faulted for Vigen’s
failure to spot PTSD. This failure was, at worst, attributable to Vigen’s mistake
as psychologist, not counsel’s decision to hire a psychologist without training
as a mitigation expert. 9 Without a red flag that Vigen’s evaluation was



       9 See Turner v. Epps, 412 F. App’x 696, 702 (5th Cir. 2011) (“[C]ounsel should be
permitted to rely upon the objectively reasonable evaluations and opinions of expert
witnesses without worrying that a reviewing court will substitute its own judgment . . . and
rule that his performance was substandard for doing so.” (second alteration in original)
(quoting Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir. 2002), overruled in part on other
grounds by Tennard v. Dretke, 542 U.S. 274 (2004))); Earp v. Cullen, 623 F.3d 1065, 1077
                                            24
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                                         No. 17-70030
defective or an indication from Vigen that he needed more information to
properly evaluate Murphy, it is too much to insist that counsel second-guess
her experts’ conclusions. 10
       In sum, Murphy cannot show he has a substantial underlying IATC
claim, and therefore he cannot debatably excuse his procedural default under
Martinez and Trevino.
                                          *     *      *
       For the foregoing reasons, we DENY Murphy’s request for a COA.




(9th Cir. 2010) (holding that even if the mental-health professionals who evaluated the
petitioner at the time of trial failed to diagnose the petitioner properly, their failure “does not
constitute ineffective assistance of counsel”); Wilson v. Sirmons, 536 F.3d 1064, 1089
(10th Cir. 2008) (noting that, to a degree, counsel should be able to rely on an expert to
determine what evidence is necessary to an effective evaluation and what additional evidence
the expert needs to complete testing); cf. Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir.
1995) (“In general, an attorney is entitled to rely on the opinions of mental health experts in
deciding whether to pursue an insanity or diminished capacity defense.”).
       10 Because we conclude that Murphy’s case for deficient performance is undebatably

meritless, we need not consider whether the failure to obtain a PTSD diagnosis was
prejudicial.
                                               25
