                           REVISED MARCH 19, 2012

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

                                                                       FILED
                                        No. 10-70014               March 19, 2012

                                                                      Lyle W. Cayce
                                                                           Clerk
ROGER WAYNE MCGOWEN,

                                                Petitioner–Appellee
                                                Cross-Appellant,
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                Respondent–Appellant
                                                Cross-Appellee.



                    Appeals from the United States District Court
                         for the Southern District of Texas


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Petitioner Roger McGowen was convicted of capital murder in a Texas
state court and sentenced to death. He seeks federal habeas corpus relief from
his conviction and death sentence on several grounds. The district court held
that, under Penry v. Lynaugh1 and its progeny, McGowen was entitled to habeas
relief with respect to his sentence because the punishment phase jury


      1
          (Penry I), 492 U.S. 302 (1989).
                                   No. 10-70014

instructions failed to provide an avenue to give effect to mitigating evidence.
The district court denied habeas relief as well as certificates of appealability
with respect to all of his other claims. The parties cross-appealed. We affirm.
                                          I
        On March 11, 1986, a masked assailant fatally shot Marion Pantzer while
attempting to rob a bar Pantzer owned in Houston, the “Just Marion and Lynn’s
Club” (the Club). Before the murder, a black male entered the Club. The
bartender, Pedro Flores, noted the man’s presence because the Club catered to
a lesbian clientele. The man, who was later identified as McGowen’s cousin,
Kerwin Kindle, left sometime before the shooting.
        At approximately 12:45 A.M., a masked man holding a large gun entered
the Club and, while standing in a “shooting position,” motioned to Flores in a
manner Flores understood to mean the man wanted money from the cash
register. As Flores walked toward the register, he noticed Pantzer, who was
sitting on a stool at the end of the bar, reaching for her belt area where Flores
knew she usually carried a gun. Flores saw Pantzer’s gun, and as he prepared
to open the register, he looked backed at the man. It was then that Flores saw
fire come from the man’s gun and heard two shots. The man fled immediately
after firing. Flores did not know whether the man or Pantzer had fired the first
shot.
        The police found a .25 caliber pistol near Pantzer’s body and a spent, small
caliber bullet at the other end of the bar. It was Kindle, who had reentered the
bar before the police arrived, who pointed out to the police the location of the
bullet. The medical examiner subsequently removed a hollow point bullet from
Pantzer’s body.
        The incident was similar to several other crimes in the immediate area,
in which a group of men had been robbing homosexual bars and other
businesses. McGowen, who had an extensive history of armed robbery, was


                                          2
                                  No. 10-70014

arrested after being identified by a witness to another aggravated robbery.
McGowen signed two written statements while in custody. In the first, he
admitted his involvement in several robberies in the area, including an
attempted robbery at the Copa club that occurred a few weeks after Pantzer was
shot. In the second, he admitted to shooting Pantzer but maintained he did so
only because she had fired at him first. According to the statement, McGowen
went to the Club with Kindle to rob it, and McGowen entered the Club wearing
a gray ski mask and carrying a .38 revolver. Pantzer fired at him, and McGowen
stated, “I guess it was just a frightened reaction by me but my gun went off.”
      McGowen was charged with capital murder, and McGowen and Kindle
were indicted for aggravated robbery. McGowen’s trial counsel attempted to
suppress the confession, which was the only evidence linking him to the murder.
The trial court denied the motion to suppress, concluding that the two
statements “were voluntary, given after being properly warned by the officers,
and made after knowingly and intelligently waiving the rights afforded to a
defendant in custody.”
      In light of the confession, defense counsel chose not to challenge
McGowen’s identity as the killer at trial and instead challenged the intent
requirement. After a one-day trial, the jury found McGowen guilty of capital
murder. The jury charge required the jury to find that McGowen knowingly and
voluntarily confessed to the offense as a prerequisite to relying on the confession
to convict McGowen.      In a separate punishment phase of the trial, then-
applicable Texas law—Article 37.071(b) of the Texas Code of Criminal
Procedure—required the jury to answer three special issue questions that would
result in a death sentence if all were answered in the affirmative: “(1) whether
the conduct of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that the death of the
deceased or another would result” (the deliberateness special issue); “(2) whether


                                        3
                                 No. 10-70014

there is a probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society” (the future-dangerousness
special issue); and (3) “if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased.”
      During the penalty phase, the prosecution called a number of witnesses
who testified about McGowen’s history of violence and criminal conduct. They
testified that after being imprisoned for aggravated assault in 1982, McGowen
was perpetually involved in theft and armed robbery in the years before
Pantzer’s murder, utilizing guns and knives and sometimes robbing the same
establishments multiple times in a single day. McGowen had also agreed to kill
a man in exchange for drugs, but instead robbed and shot him. The prosecution
argued that unless a death sentence was imposed, McGowen’s criminality would
continue to escalate.
      The defense called two of McGowen’s sisters as its only witnesses at the
punishment phase.       They testified that McGowen had a disadvantaged
background and vouched for his good character. Defense counsel argued in
closing that McGowen’s background contributed to the manner in which he dealt
with life’s problems.
      The jury answered the three special issues in the affirmative, and
McGowen was sentenced to death.          On direct appeal, the Texas Court of
Criminal Appeals affirmed the conviction and sentence. In its opinion, issued
in 1992, the Texas court held that Penry did not require a separate special issue
instruction to allow the jury to give mitigating effect to the evidence presented
at the sentencing phase, noting that the court had “declined to extend Penry to




                                         4
                                     No. 10-70014

include the type of evidence presented here.” The Supreme Court denied
certiorari on McGowen’s direct appeal on October 12, 1993.2
      In April 1997, McGowen filed an application for writ of habeas corpus in
state court raising two issues: (1) whether the trial court should have instructed
the jury on the lesser-included offense of simple murder; and (2) whether trial
counsel provided ineffective assistance by failing to obtain a biopsychosocial
assessment to use as mitigating evidence in the punishment phase. In August
1998, McGowen filed an amended habeas application raising the same two
issues as well as several new issues, including that trial counsel inadequately
investigated his innocence and inadequately presented mitigating evidence at
the punishment phase of the trial.
      The state habeas court recommended a denial of relief and issued findings
of fact and conclusions of law addressing the merits of the issues raised in the
initial and amended applications. The Texas Court of Criminal Appeals denied
relief in September 2006, adopting the findings and conclusions as to the issues
raised in the initial application and refusing to consider the claims in the
amended application.3 The Texas court held that the amended application
constituted a “subsequent application” under Article 11.071 of the Texas Code
of Criminal Procedure and dismissed the application on procedural grounds as
an abuse of the writ.
      In October 2006, McGowen commenced the underlying federal action by
filing an application for writ of habeas corpus. The district court stayed the
proceedings to allow McGowen to file a successive application in state court to
exhaust newly brought claims, which the Texas Court of Criminal Appeals



      2
          McGowen v. Texas, 510 U.S. 913 (1993).
      3
        Ex parte McGowen, Nos. WR-64992-01 & WR-64992-02, 2006 WL 2615541 (Tex.
Crim. App. Sept. 13, 2006) (unpublished).

                                            5
                                      No. 10-70014

dismissed as an abuse of the writ.4 McGowen’s second amended petition in
federal court raised sixteen claims relating to both the guilt/innocence phase and
the punishment phase of his trial. Respondent (the Director) sought summary
judgment on all of the claims.
       The district court held McGowen was entitled to habeas relief on his claim
that the Texas special issue questions did not provide an adequate vehicle for
consideration of McGowen’s mitigating evidence as required by Penry and its
progeny, and that the State was required to “either hold a new punishment
hearing or commute McGowen’s sentence to life imprisonment.” The court
therefore did not address the remaining ten claims relating to the punishment
phase. Alternatively with respect to the sentencing claims, the district court
held that all but three claims were procedurally barred and that those three
claims lacked merit. As to the claims relating to the guilt/innocence phase of the
trial, the district court held they were procedurally barred, as McGowen had
failed to comply with Texas’s adequate and independent procedural
requirements for presenting the claims. The district court also denied McGowen
a certificate of appealability on the guilt/innocence claims. The parties cross-
appealed.
                                            II
       The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to
this appeal.5 Under AEDPA, a petitioner who is in custody “pursuant to the
judgment of a State court” is not entitled to federal habeas relief unless the
adjudication on the merits of the petitioner’s claims




       4
         Ex parte McGowen, No. WR-64992-03, 2008 WL 5050080 (Tex. Crim. App. Nov. 26,
2008) (unpublished).
       5
       See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (en banc) (per curiam) (noting
that AEDPA applies to all federal habeas petitions filed on or after April 24, 1996).

                                             6
                                         No. 10-70014

       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or
       (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.6
“[P]ure questions of law and mixed questions of law and fact are reviewed under
§ 2254(d)(1), and questions of fact are reviewed under § 2254(d)(2).”7
       Regarding § 2254(d)(1),
       [a] state court’s decision is “contrary to” clearly established federal
       law if (1) the state court “applies a rule that contradicts the
       governing law” announced in Supreme Court cases, or (2) the state
       court decides a case differently than the Supreme Court did on a set
       of materially indistinguishable facts.8
“A state court’s application of clearly established federal law is ‘unreasonable’
within the meaning of AEDPA when the state court identifies the correct
governing legal principle from Supreme Court precedent, but applies that
principle to the case in an objectively unreasonable manner.”9
       On appeal of a district court’s grant or denial of the writ of habeas corpus,
this court reviews findings of fact for clear error and conclusions of law de novo,
“applying the same standard of review to the state court’s decision as the district
court.”10




       6
            28 U.S.C. § 2254(d).
       7
         Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001) (quoting Corwin v. Johnson, 150
F.3d 467, 471 (5th Cir. 1998)) (internal quotation marks omitted).
       8
         Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell
v. Esparza, 540 U.S. 12, 15-16 (2003)).
       9
            Id. (citing Wiggins v. Smith, 539 U.S. 510, 520 (2003)).
       10
         See Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007) (citing Thompson v. Cain,
161 F.3d 802, 805 (5th Cir. 1998)).

                                                7
                                        No. 10-70014

                                              III
      The district court held that the special issue questions presented to the
jury in the punishment phase of the trial did not provide an adequate vehicle for
consideration of McGowen’s mitigating evidence as required by Penry and
subsequent Supreme Court decisions. We agree.
      The Supreme Court has issued several opinions involving challenges to
Texas’s capital sentencing scheme in effect at the time of McGowen’s sentencing.
In Penry v. Lynaugh, the Supreme Court considered an as-applied challenge to
the three questions posed to the jury at the penalty hearing, which “do[] not
explicitly mention mitigating circumstances, but rather direct[] the jury to
answer [the] three questions” quoted above regarding deliberateness, future
dangerousness, and provocation.11 Drawing on its prior jurisprudence, the
Supreme Court held that, at the time Penry’s conviction became final in 1986,
the State “could not, consistent with the Eighth and Fourteenth Amendments,
prevent the sentencer from considering and giving effect to evidence relevant to
the defendant’s background or character or to the circumstances of the offense
that mitigate against imposing the death penalty.”12 The Court continued,
      If the sentencer is to make an individualized assessment of the
      appropriateness of the death penalty, “evidence about the
      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.”13
      The sentencer must “be able to consider and give effect to that evidence in
imposing sentence,” such that “the sentence imposed at the penalty stage should

      11
           (Penry I), 492 U.S. 302, 316 (1989).
      12
           Id. at 318.
      13
         Id. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’CONNOR, J.,
concurring)).

                                                  8
                                       No. 10-70014

reflect a reasoned moral response to the defendant’s background, character, and
crime.”14 The Court concluded that evidence of Penry’s mental retardation and
history of abuse had mitigating relevance to Penry’s moral culpability beyond
the scope of the special issue questions.15 In addition, the prosecution had
argued to the jurors at the sentencing phase that they “had taken an oath to
follow the law, and that they must follow the instructions they were given in
answering the special issues.”16 In light of that argument and the absence of an
appropriate instruction, “the jury was not provided with a vehicle for expressing
its ‘reasoned moral response’ to [the mitigating] evidence in rendering its
sentencing decision.”17
      In Tennard v. Dretke, the Supreme Court considered the same capital
sentencing scheme, evaluating whether it was inadequate for jurors to give effect
to the petitioner’s evidence of low intelligence.18 Engaging in a two-step process,
the Court first held that, in determining whether mitigating evidence is
“relevant” in the context of a capital sentencing proceeding,
      the meaning of relevance is no different . . . than in any other
      context, and thus the general evidentiary standard—“any tendency
      to make the existence of any fact that is of consequence to the
      determination of the action more probable or less probable than it
      would be without the evidence”—applies.19




      14
          Id. (quoting California, 479 U.S. at 545 (O’CONNOR, J., concurring)) (internal
quotation marks omitted) (citing Hitchcock v. Dugger, 481 U.S. 393 (1987)).
      15
           Id. at 322.
      16
           Id. at 325.
      17
           Id. at 326, 328.
      18
           542 U.S. 274, 276 (2004).
      19
          Id. at 284 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)) (internal
quotation marks omitted).

                                            9
                                        No. 10-70014

The Court noted that certain evidence that does “not relate specifically to
petitioner’s culpability for the crime he committed” may nevertheless “be
‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than
death.’”20
       “Once this low threshold for relevance is met,” the Court continued, “the
Eighth Amendment requires that the jury be able to consider and give effect to
a capital defendant’s mitigating evidence.”21 In holding that the petitioner was
entitled to a certificate of appealability on the district court’s denial of his
petition for a writ of habeas corpus, the Court determined “[r]easonable jurists
could conclude” that Tennard’s low IQ evidence was relevant mitigating evidence
that had “mitigating dimension” beyond the scope of the special issue
questions.22 The Court also noted that the prosecution’s closing arguments at
the sentencing hearing “pressed exactly the most problematic interpretation of
the special issues, suggesting that Tennard’s low IQ was irrelevant in
mitigation, but relevant to the question whether he posed a future danger.”23
       Most recently, the Supreme Court decided companion cases Abdul-Kabir
v. Quarterman24 and Brewer v. Quarterman.25 The Court reaffirmed that the
central principle discussed in Penry—“that sentencing juries must be able to give
meaningful consideration and effect to all mitigating evidence that might
provide a basis for refusing to impose the death penalty on a particular

       20
          Id. at 285 (alteration in original) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978))
(internal quotation marks omitted).
       21
        Id. (quoting Boyde v. California, 494 U.S. 370, 377-78 (1990)) (internal quotation
marks omitted).
       22
            Id. at 288-89.
       23
            Id. at 289.
       24
            550 U.S. 233 (2007).
       25
            550 U.S. 286 (2007).

                                               10
                                         No. 10-70014

individual, notwithstanding the severity of his crime or his potential to commit
similar offenses in the future”—was “firmly established” in the Court’s
jurisprudence “well before” its decision in Penry.26 In Abdul-Kabir, the Court
held that the Texas special issue questions did not allow meaningful
consideration by the jury of the petitioner’s mitigating evidence relating to his
troubled childhood and lack of impulse control, which “did not rebut either
deliberateness or future dangerousness but was intended to provide the jury
with an entirely different reason for not imposing a death sentence.”27 Similarly,
in Brewer, the Court concluded that the mitigating evidence the petitioner had
presented, including childhood abuse by his father and past problems with
depression and drug abuse,28 “served as a ‘two-edged sword’ because it tended
to confirm the State’s evidence of future dangerousness as well as lessen his
culpability for the crime.”29 In holding the petitioner was entitled to habeas
relief, the Court dismissed the lack of expert psychiatric evidence as irrelevant
to the analysis, noting that
      [n]owhere in our Penry line of cases have we suggested that the
      question whether mitigating evidence could have been adequately
      considered by the jury is a matter purely of quantity, degree, or
      immutability. Rather, we have focused on whether such evidence
      has mitigating relevance to the special issues and the extent to
      which it may diminish a defendant’s moral culpability for the
      crime.30
Relevant to the Court’s holding in both cases were statements by the respective
prosecutors discouraging the jurors from taking into account the mitigating


      26
           Abdul-Kabir, 550 U.S. at 246.
      27
           See id. at 259.
      28
           Brewer, 550 U.S. at 289-90.
      29
           Id. at 292-93 (quoting Penry I, 492 U.S. 302, 324 (1989)).
      30
           Id. at 294.

                                              11
                                       No. 10-70014

aspect of the defense’s evidence, while emphasizing the aggravating effect with
respect to the special issues.31
                                              A
      McGowen’s conviction became final in 1993. The Supreme Court held in
Abdul-Kabir v. Quarterman, that
      [a] careful review of our jurisprudence in this area makes clear that
      well before our decision in Penry I [(decided in 1989)], our cases had
      firmly established that sentencing juries must be able to give
      meaningful consideration and effect to all mitigating evidence that
      might provide a basis for refusing to impose the death penalty.32
Guided by the Supreme Court precedent discussed above, we consider
McGowen’s Penry claim.
      As noted, during the punishment phase of the trial, McGowen presented
the testimony of two of his sisters, Rhonda Edwards and Valerie McGowen.
Edwards described McGowen’s background and character as follows: McGowen
had nine siblings, one of whom had died; he and Edwards had different fathers
and McGowen’s father was deceased at the time of trial; McGowen and Edwards
had lived in the same house until McGowen was in fifth grade; he then went to
live with his father and then his grandmother until his grandmother died; he
had graduated from a vocational school; at the age of sixteen he had his own
apartment; Edwards moved in with him when she was twelve or thirteen and
pregnant; and he allowed several other people to stay in his apartment,
including his girlfriend, his girlfriend’s two children, an uncle, and Norman
Willis, who had testified at the hearing about committing numerous crimes with
McGowen. Edwards also testified as to McGowen’s character, explaining that
McGowen had been like a father-figure to her, had taught her “the right things
to do,” and had helped the family and taken care of her when their mother was

      31
           Id. at 291, 293-94; Abdul-Kabir, 550 U.S. at 241-42, 261.
      32
           Abdul-Kabir, 550 U.S. at 246.

                                             12
                                    No. 10-70014

on welfare. She also testified she would provide a home for him “[w]hen he gets
out.”
        Valerie McGowen testified: when she lived with McGowen in 1984 and
1985, he worked “every day” at a restaurant to support his girlfriend and his
girlfriend’s children; he had graduated from a vocational school and was
articulate and intelligent; and she would support him if he received a life
sentence.
        In closing arguments, defense counsel argued in pertinent part that
McGowen’s background—“growing up in Houston black, poor, uneducated, and
from a broken home,” as well as being responsible for others at such a young
age—contributed to his inability to solve problems without resorting to crime
and violence. Defense counsel specifically stated:
        [I]s there any among you who can deny that growing up in Houston
        black, poor, uneducated, and from a broken home is a considerably
        different experience than what most of us are used to? Life is
        solving problems. Life is learning how to cope with problems and
        overcoming problems that confront us every day. Is there any
        among you who think that Roger Wayne McGowen had the same
        chance, had the same ability, had the same intelligence to overcome
        problems confronting him that some of us did?

               He’s sixteen or seventeen years old, and he’s got an uncle.
        He’s got a wife. He’s got a sister. He’s being followed by the likes
        of no-account Norman Willis. He’s trying to hold a family together,
        solve their problems, help get them down the road of life, and he has
        to take care of himself. You need to consider that. You may reject
        it, but please consider it. God didn’t give all of us the same ability
        to solve our problems.
Defense counsel continued:
        His career started at a very early age. He did it the wrong way. At
        sixteen years old after living with a series of relatives, a series of
        relatives, at sixteen years of age, he has his own home, his own
        apartment. He has no direction, but he’s got a fourteen-year-old
        sister to support, who was either pregnant at that time or had the


                                         13
                                     No. 10-70014

       baby living there with her. He had Norman Ray Willis. Norman
       Ray Willis had nowhere else to go. . . .
              Then you heard about some uncle who lived there off and on,
       an older man, but who took care of everything? Roger McGowen.
       His other sister testified that she lived with him, too. She said he
       tried to help her. He graduated from Job Corps. He was taking care
       of a wife or woman and also her two children. He is the only sole
       support.
       In rebuttal, the prosecution argued:
              If you noticed, during the arguments, [defense counsel] didn’t
       talk about the special issues. He only talked about life or death, life
       or death. He talked about what a hard job you’ve got, what a
       difficult job you have ahead of you, and how the State wanted to
       confuse you with all of this evidence.
The prosecution later stated:
       Well, folks, we’re talking about someone who has already taken a
       human life. He’s only killed one person. After all, the whole idea of
       this [future-dangerousness] question is to keep someone else from
       dying down the road. That’s what you have to think about. You’ve
       got the responsibility on your shoulders. You’re not here as social
       workers. Since when has it been an excuse because you’re poor or
       black or whatever you want to blame it on, since when does that or
       society take the blame? “He never had a chance. That’s why he
       went and robbed somebody and killed somebody.”
The prosecution went on to refer to that “excuse” as a “cop-out.”
                                            B
       In reviewing McGowen’s Penry claim, we must first determine if
McGowen’s mitigating evidence of a disadvantaged background and good
character “satisfied the ‘low threshold for relevance’ articulated by the Supreme
Court” in Tennard.33 Based on the Supreme Court jurisprudence discussed
above, the law is clear that, generally, evidence of a troubled or disadvantaged



       33
         Coble v. Quarterman, 496 F.3d 430, 444 (5th Cir. 2007) (quoting Tennard v. Dretke,
542 U.S. 274, 285 (2004)).

                                            14
                                      No. 10-70014

background has “relevance,” as that term is broadly defined in Tennard, to a
defendant’s moral culpability.
       The Director argues McGowen presented no such evidence of a
disadvantaged background nor evidence linking his background to his character,
but as the district court concluded, this position requires too narrow a
construction of the evidence. There was testimony that, as a child, McGowen
went from living with his mother to his father to his grandmother, and when his
grandmother died, he was on his own at the age of sixteen, with a mother on
welfare. At that point, he was also responsible for at least two of his younger
sisters, one of whom was either pregnant or had a young child, as well as his
girlfriend and her two children. This evidence may not indicate that McGowen
was abused or neglected like the petitioners in Penry or Brewer, but evidence of
abuse or neglect is not the only indication of a “troubled” or “disadvantaged”
background that can be relevant to a defendant’s moral culpability,34 and the
Supreme Court has never limited the standard in that way. Nor has this court
so narrowly construed the Supreme Court’s decisions. For example, in Coble v.
Quarterman, the relevant mitigating evidence included evidence of a troubled
childhood—the defendant’s father died before he was born, his mother suffered
a nervous breakdown when he was eleven, and he was sent to live at a state
facility until he joined the Marines at seventeen—as well as evidence of mental
illness.35 In Pierce v. Thaler, we held that evidence of a troubled childhood,
involving testimony that the defendant fell in with the wrong crowd as a




       34
          See Brewer v. Quarterman, 550 U.S. 286, 294 (2007) (issue of whether mitigating
evidence could have been adequately considered by a jury is not “a matter purely of quantity,
degree, or immutability”).
       35
            496 F.3d at 445-46.

                                             15
                                        No. 10-70014

teenager and spent time in juvenile detention, satisfied the “low threshold for
relevance articulated by the Supreme Court.”36
       In Smith v. Quarterman, the only decision issued after Abdul-Kabir and
Brewer in which this court denied habeas relief on a Penry claim, we denied
relief on the ground that the purportedly mitigating evidence presented by the
defendant—that he grew up in a poor, crime-infested area—“‘has only a tenuous
connection to the petitioner’s moral culpability.’”37 The Director now relies
heavily on Smith to argue that there was no witness testimony regarding the
effect of McGowen’s disadvantaged background on his character. However, the
court emphasized in Smith that “our holding here is a narrow one, based on our
detailed review of the record which contains no evidence of a connection between
the poverty and crime of the Fifth Ward and Smith’s character.”38 The court
further held that the evidence did not amount to a “‘particularized childhood
experience of abuse and neglect’” requiring habeas relief.39 The evidence of
“particularized childhood experiences” that was considered in the Supreme
Court decisions had not been presented.
       In this case, however, there was at least some such evidence, including
McGowen’s moving from home to home as a child and having to take full
responsibility for himself and others at a very young age. In addition, the
defense specifically asked the jury to consider McGowen’s disadvantaged
background and its effect on his decisions and actions. Moreover, McGowen is
not required to establish a “nexus” between the mitigating evidence and the


       36
          604 F.3d 197, 206-08 (5th Cir. 2010) (quoting Coble, 496 F.3d at 444) (internal
quotation marks omitted).
       37
         515 F.3d 392, 414 (5th Cir. 2008) (quoting Abdul-Kabir v. Quarterman, 550 U.S. 233,
253 n.14) (2007)) (ellipsis and brackets omitted).
       38
            Id.
       39
            Id. (quoting Abdul-Kabir, 550 U.S. at 261).

                                              16
                                        No. 10-70014

crime.40 Instead, “the question is simply whether the evidence is of such a
character that it might serve as a basis for a sentence less than death.”41
                                               C
      Having determined that the mitigating evidence satisfied the relevancy
requirement, we must determine whether the jury was able to give the
mitigating evidence meaningful effect without special instruction.42 “[S]pecial
instruction is necessary when the defendant’s evidence may have meaningful
relevance to the defendant’s moral culpability ‘beyond the scope of the special
issues.’”43 As argued by defense counsel in closing, the evidence of McGowen’s
background “did not rebut either deliberateness or future dangerousness but was
intended to provide the jury with an entirely different reason for not imposing
a death sentence.”44 Without an additional instruction, the jury could not give
meaningful effect to evidence of McGowen’s disadvantaged background.
      Citing the Supreme Court’s plurality opinion in Franklin v. Lynaugh45 and
majority opinion in Graham v. Collins,46 the district court in this case held that
the special issues sufficiently allowed the jury to take into consideration
evidence of McGowen’s good character, just not of his disadvantaged background.
This court’s recent decision in Pierce v. Thaler,47 however, holds otherwise. In


      40
           Tennard v. Dretke, 542 U.S. 274, 287 (2004).
      41
        Id. (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)) (internal quotation
marks omitted).
      42
           See Abdul-Kabir, 550 U.S. at 253 n.14.
      43
           Id. (quoting Penry I, 492 U.S. 302, 322-23 (1989)).
      44
           Id. at 259.
      45
           487 U.S. 164 (1988).
      46
           506 U.S. 461 (1993).
      47
           604 F.3d 197 (5th Cir. 2010).

                                              17
                                       No. 10-70014

Pierce we determined that the Supreme Court’s jurisprudence on California’s
death penalty statute “establish[ed] that good character evidence has
meaningful relevance to moral culpability, which a majority of the Justices in
Franklin indicated is not encompassed by the special issues.”48 Moreover, we
emphasized that the statement in Graham—“that the special issues allowed the
jury to give at least some effect to [good] character evidence”—was distinguished
as dicta by the Supreme Court in Abdul-Kabir and, as we held in Nelson, did not
“alter[] the requirement that the jury be able to give ‘full consideration and full
effect to the capital defendant’s mitigating evidence.’”49
      In any event, the Supreme Court’s decision in Abdul-Kabir tells us that,
under the clearly established law when McGowen’s conviction became final, the
special issues did not provide “a basis for the jury to give meaningful
consideration and effect to [McGowen’s] mitigating evidence” of his
disadvantaged background.50




                                              D
      Although the district court did not find the prosecution’s closing argument
particularly problematic, we conclude that it also contributed to the Penry
concerns. The prosecution accused defense counsel of ignoring the special issues
and focusing only on “life or death.” In discussing the future dangerousness
issue, the prosecution emphasized “keep[ing] someone else from dying down the
road,” while discounting the relevance of the mitigating background evidence,
calling it a “cop-out.” This is similar to the prosecution’s closing argument in


      48
           Id. at 210.
      49
           Id. (quoting Nelson v. Quarterman, 472 F.3d 287, 298 (5th Cir. 2006) (en banc)).
      50
           Id. at 212.

                                             18
                                       No. 10-70014

Tennard, in which the prosecutor told the jury that “the reasons why [Tennard]
became a danger are not really relevant. The fact that he is a danger, that the
evidence shows he’s a danger, is the criteria to use in answering that [future-
dangerousness] question.”51 As in Brewer, there is “a reasonable likelihood that
the jurors accepted the prosecutor’s argument . . . that all they needed to decide
[were the special issue questions], necessarily disregarding any independent
concern that, given [McGowen’s] troubled background, he may not be deserving
of a death sentence.”52
                                              IV
       The Director argues that even if there is Penry error, it is subject to
harmless-error review. In doing so, he urges this court to overrule its prior
decision, Nelson v. Quarterman.53 Nelson may not be overruled “in the absence
of an intervening contrary or superseding decision by this court sitting en banc
or by the United States Supreme Court.”54 The Director points to no intervening
contrary or superseding decision by the Supreme Court or this court sitting en
banc. Accordingly, we are bound by Nelson.
                                               V
       Because of its resolution of the Penry claim, the district court did not
address the merits of McGowen’s remaining punishment-phase claims. Instead,
the district court noted in a footnote that all but three of those claims suffered
from procedural defects and found no merit in the three properly presented



       51
            Tennard v. Dretke, 542 U.S. 274, 289 (2004) (internal quotation marks omitted).
       52
            Brewer v. Quarterman, 550 U.S. 286, 293-94 (2007) (footnote omitted).
       53
            472 F.3d at 314-15.
       54
           E.g., Caillouet v. First Bank & Trust (In re Entringer Bakeries, Inc.), 548 F.3d 344,
348-49 (5th Cir. 2008) (quoting United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.
2002)) (internal quotation marks omitted).

                                              19
                                  No. 10-70014

claims—insufficient    evidence   of   provocation,   insufficient   evidence   of
deliberateness, and failure to define the term “deliberately.”
      The district court also denied McGowen’s habeas claims relating to the
guilt/innocence phase of his trial, holding that “adequate and independent state
law bars federal consideration of his remaining claims.”
      The district court refused to grant a COA as to any of the foregoing denied
claims. McGowen now seeks a COA in this court as to some, but not all, of the
claims denied by the district court.
                                        A
      McGowen has not requested a COA in this court on six of the fifteen claims
denied by the district court. These abandoned claims include: (1) trial counsel
provided ineffective assistance by failing to address juror misconduct adequately;
(2) the trial court refused to define the term “deliberately” in the first special
issue; (3) the future dangerousness special issue is invalid; (4) Texas’s capital
sentencing statute unconstitutionally affords the jury too much discretion;
(5) Texas’s manner of execution amounts to cruel and unusual punishment; and
(6) the cumulative effect of the alleged errors denied McGowen’s constitutional
rights. Accordingly, we need not consider whether McGowen is entitled to a
COA on these claims.




                                        B
      McGowen has also abandoned several of the claims in his application for
a COA by inadequate briefing. McGowen attempted to brief three of his COA
claims by summarily incorporating the arguments he made in his habeas
petition in the district court as well as earlier arguments in his COA brief
relating to another claim. These three claims include: (1) the evidence was
insufficient to support the jury’s affirmative answer to the provocation special


                                       20
                                      No. 10-70014

issue; (2) the evidence was insufficient to support the jury’s affirmative answer
to the deliberateness special issue; and (3) the State improperly withheld
exculpatory evidence in violation of Brady v. Maryland.55
       We have held that a COA applicant waives claims by directing the
appellate court to briefing before the district court to support his request for a
COA.56 McGowen’s reference to his habeas petition therefore does not preserve
his claims. To the extent McGowen vaguely refers to arguments made earlier
in the COA brief in support of his actual innocence claim, he fails to explain how
those arguments are related to the two special-issue evidentiary claims or
demonstrate a Brady violation. Accordingly, McGowen has waived these claims
by failing to brief them adequately.57
       McGowen has also waived claims that his constitutional rights were
violated because the jury was not given the option to sentence him to life without
parole. Although McGowen dedicates three pages of his COA brief to these
claims, the substance of the argument is no more than an extended reference to
his briefing in the district court. Specifically, McGowen: lists the various life-
without-parole claims that he presented to the district court; summarily argues
that the district court erred in finding he had procedurally defaulted on these
claims “[f]or the reasons presented in his [habeas] brief”; requests that these
claims be remanded to the district court in the event his Penry claim is reversed;
summarily contends he presented these claims “at the first opportunity” after a
change in Texas law in 2005; and argues he has been an exemplary prisoner and



       55
            373 U.S. 83 (1963).
       56
         Summers v. Dretke, 431 F.3d 861, 870 (5th Cir. 2005); see also Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993) (a party cannot preserve arguments by attempting to
incorporate arguments from earlier briefing).
       57
          See Woods v. Cockrell, 307 F.3d 353, 357 (5th Cir. 2002) (denying issues raised in
petition for COA as inadequately briefed).

                                             21
                                        No. 10-70014

is not a future danger to society. He provides no citations to authority or the
record as required by Federal Rule of Appellate Procedure 28.58 Accordingly, he
has waived the life-without-parole claims by inadequately briefing them.59
       Finally, McGowen waived his claim of jury misconduct. In his COA brief,
McGowen vaguely references, without record citation or elaboration, “affidavit
evidence from the jury which demonstrated that their verdict rested on
unconstitutional considerations, prejudicial extraneous information, and other
extraneous influences.” He then broadly asserts he was denied his constitutional
rights to due process, to an impartial jury, and to cross-examine and confront
witnesses, citing case law for generic propositions regarding a defendant’s right
to an impartial jury. At best, McGowen has presented “conclusory and passing
assertions” that his rights were violated by jury misconduct and has waived the
issue by failing “to meaningfully brief [it].”60




                                               VI
       The remaining three claims on which McGowen seeks a COA are his
contentions that: (1) he is actually innocent; (2) trial counsel provided ineffective
assistance by failing to investigate and present adequately both evidence of
McGowen’s innocence and mitigating evidence; and (3) his prolonged stay on
death row constitutes cruel and unusual punishment.
                                               A


       58
           See Int’l Women’s Day March Planning Comm. v. City of San Antonio, 619 F.3d 346,
369 n.31 (5th Cir. 2010) (quoting FED. R. APP. P. 28(a)(9)(A)) (“‘The appellant’s brief must
contain . . . [an] argument, which must contain . . . appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the appellant relies.’”
(alterations in original)).
       59
            See Summers, 431 F.3d at 870; Woods, 307 F.3d at 357.
       60
            Hinojosa v. Butler, 547 F.3d 285, 291 n.2 (5th Cir. 2008).

                                               22
                                           No. 10-70014

        “A COA will issue only if the requirements of [28 U.S.C.] § 2253 have been
satisfied.”61 Section 2253(c) permits issuance of a COA when “a petitioner has
made a ‘substantial showing of the denial of a constitutional right.’”62 Under this
standard, when a district court denies habeas relief by rejecting constitutional
claims on their merits, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.”63 When the district court denies the petition on procedural
grounds without reaching the merits, the petitioner must show “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”64
        The petitioner must demonstrate “‘something more than the absence of
frivolity or the existence of mere “good faith” on his or her part.’”65 However, a
COA should not be denied “merely because [the court] believes the applicant will
not demonstrate an entitlement to relief.”66 In addition, any doubts as to
whether a COA should be granted are resolved in the petitioner’s favor, and the
severity of the death penalty may be a consideration in deciding whether a
petitioner has made a “substantial showing.”67 In considering a COA, this court
does not fully consider the legal and factual basis of the petitioner’s claims, but

        61
             Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
        62
             Id. (quoting 28 U.S.C. § 2253(c)).
        63
             Slack v. McDaniel, 529 U.S. 473, 484 (2000).
        64
             Id.
        65
             Riley v. Cockrell, 339 F.3d 308, 313 (5th Cir. 2003) (quoting Miller-El, 537 U.S. at
338).
        66
             Miller-El, 537 U.S. at 337.
        67
          Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000) (citing Fuller v. Johnson, 114 F.3d
491, 495 (5th Cir. 1997)).

                                                  23
                                          No. 10-70014

rather “conduct[s] an overview of the issues presented and a general assessment
of their merits under the deferential standard of 28 U.S.C. § 2254(d).”68
                                                 B
        The three remaining claims were raised for the first time either in
McGowen’s amended application, filed in state court in 1998 over a year after his
initial application, or in his successive application, which was filed in state court
in 2008 while the federal habeas action was stayed. These claims were all
dismissed by the Texas Court of Criminal Appeals on procedural grounds as an
abuse of the writ under Article 11.071 of the Texas Code of Criminal Procedure.
        Article 11.071 § 5(f) provides: “If an amended or supplemental application
is not filed within the time specified under Section 4(a) or (b), the court shall
treat the application as a subsequent application under this section.” It is
undisputed that neither the amended application filed in 1998 nor the successive
application filed in 2008 was filed within the specified time, and they were
treated as successive applications. The claims were denied as procedurally
barred.
        The procedural default doctrine “has its roots in the general principle that
federal courts will not disturb state court judgments based on adequate and
independent state law procedural grounds.”69                    “[A] federal court will not
entertain a procedurally defaulted constitutional claim in a petition for habeas
corpus absent a showing of cause and prejudice to excuse the default.”70 Under
an exception to this rule, courts will review such a claim without a showing of
cause and prejudice “when the habeas applicant can demonstrate that the
alleged constitutional error has resulted in the conviction of one who is actually

        68
             Ortiz v. Quarterman, 504 F.3d 492, 500 (5th Cir. 2007) (citing Miller-El, 537 U.S. at
336).
        69
             Dretke v. Haley, 541 U.S. 386, 392 (2004).
        70
             Id. at 388.

                                                 24
                                        No. 10-70014

innocent of the underlying offense or, in the capital sentencing context, of the
aggravating circumstances rendering the inmate eligible for the death penalty.”71
       In the district court, McGowen challenged the procedural bar to federal
habeas review on all three grounds set out above, contending: (1) there was no
adequate and independent state procedural ground preventing the Texas Court
of Criminal Appeals from reviewing the merits of his claims;72 (2) any procedural
default was excused by cause and prejudice; and (3) his actual innocence allows
federal review. In his brief in support of an application for a COA in this court,
McGowen appears to have abandoned the first two grounds and focuses only on
the exception reserved for a “fundamental miscarriage of justice,” or actual
innocence.
       Fundamental miscarriage of justice “is limited to cases where the
petitioner can make a persuasive showing that he is actually innocent of the
charges against him.”73           This “claim of ‘actual innocence’ is not itself a
constitutional claim, but instead a gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional claim considered on the
merits.”74 Proving such a claim is “daunting indeed,” requiring the petitioner to
show, “‘as a factual matter, that he did not commit the crime of conviction.’”75
The petitioner “must support his allegations with new, reliable evidence that
was not presented at trial and must show that it was ‘more likely than not that




       71
            Id.
       72
          We have held that “Texas’s abuse of the writ doctrine is a valid state procedural bar
foreclosing federal habeas review.” Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006).
       73
            Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
       74
            Herrera v. Collins, 506 U.S. 390, 404 (1993).
       75
          Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53
F.3d 106, 108 (5th Cir. 1995)).

                                               25
                                         No. 10-70014

no reasonable juror would have convicted him in the light of the new evidence.’”76
Such “new, reliable evidence” may include, by way of example, “exculpatory
scientific evidence, credible declarations of guilt by another, trustworthy
eyewitness accounts, and certain physical evidence.”77
                                               C
       In support of his innocence claim, McGowen submitted several affidavits,
which may be separated into two groups: (1) those purporting to provide
McGowen with an alibi defense; and (2) those indicating that either McGowen’s
cousin Kindle or his brother Charles murdered Pantzer.
                                                1
       Affidavits purported to provide McGowen with an alibi. McGowen’s older
sister, Rose Ayers, stated that the day the murder occurred—March 11,
1986—was her birthday and that Roger was at her house to celebrate that day.
Investigator Lisa Milstein testified she was told by several of McGowen’s sisters
about the birthday celebration. However, Milstein’s testimony about others’ out-
of-court statements is clearly hearsay not within any exception and thus is
inadmissible,78 and as the district court explained, Ayers’s testimony is
irrelevant to the question of where McGowen was at 12:45 A.M. on March 11,
when the murder took place.79 Moreover, the statements “address matters
which, by their very nature, were within the personal knowledge of the
petitioner,”80 and their reliability is therefore highly questionable. In addition,



       76
            Id. (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
       77
            Id. (citing Schlup, 513 U.S. at 324; Sawyer v. Whitley, 505 U.S. 333, 340 (1992)).
       78
            See FED. R. EVID. 801-804.
       79
         See Schlup, 513 U.S. at 327-28 (court may consider the probative force of “relevant
evidence”).
       80
            Moore v. Quarterman, 534 F.3d 454, 464-65 (5th Cir. 2008).

                                               26
                                  No. 10-70014

McGowen’s trial counsel, George Godwin, testified by affidavit that, in
preparation for trial, he reviewed the State’s entire file, he spoke with McGowen
at length several times, McGowen never denied the allegation that he shot
Pantzer, and McGowen never furnished an alibi witness. McGowen’s other trial
counsel, Ronald Mock, testified similarly by affidavit, also noting that “in light
of the confession, my discussions with the applicant, and my investigation of the
case, I could not have presented an alibi defense without suborning perjury.” As
the district court held, “[n]o jury would find reasonable doubt as to [McGowen’s]
identity based on the purported alibi defense,” particularly considered in
conjunction with his admitted confession.
                                        2
      Affidavits indicate that either McGowen’s cousin Kindle or his brother
Charles murdered Pantzer. The district court engaged in an exhaustive review
of several affidavits McGowen submitted in order to rebut his identity as the
killer. Most consisted of hearsay statements from various people indicating that
Kindle had told them Roger McGowen’s brother, Charles, was the person who
shot Pantzer. The district court noted that Charles, who was killed in March
1987, had become “an easy target upon which to cast blame.” As noted above,
Kindle, who is McGowen’s cousin, was in the Club both before and after the
shooting, found the bullet fired from the 0.25 caliber pistol, and gave it to the
police.
      Kindle’s affidavit, which is a typed statement dated May 10, 2007,
containing numerous handwritten additions and alterations, is carefully crafted
in such a way as to disclaim any personal involvement with the robbery or
murder. The district court noted that, when he signed his statement in 2007,
Kindle was serving a federal prison sentence for trafficking cocaine and that he
“has gone from being a suspect in this case to being McGowen’s star witness.”
In the affidavit, Kindle admitted to being in the Club twice on the night of the


                                       27
                                  No. 10-70014

murder, but again denied involvement. He stated that McGowen’s now-deceased
brother, Charles, told him he entered the Club to rob it and that “the woman
shot at him so he shot back, and then ran out of the club.” He stated he saw
Charles later that night and that Charles was bleeding because “the woman . . .
hit him in the leg, his thigh area.” Charles asked Kindle about pain killers, and
Kindle talked to his wife, Shuntel Woolridge, about giving Charles Tylenol.
Kindle told his wife Charles “had robbed a place and shot someone” with a man
named Robert Richmond. Kindle stated that, when questioned by the police
weeks later, he told them “Roger [McGowen] had not committed the shooting.”
      Shuntel Woolridge stated in her affidavit that Charles had called Kindle
the night of the murder asking for something for the pain, and she gave Kindle
some prescription Tylenol to take to Charles. She also stated Kindle had told
her “Charles had been shot trying to rob some gay bar” and that she told the
police “Charles did it.” She further stated, in conflict with Kindle’s admission
that he was at the Club before the shooting, that Kindle “had been with me all
afternoon before that call came.”
      Another one of McGowen’s brothers, Michael McGowen, stated Kindle had
told him “Roger had nothing to do with the shooting” and that two uncles had
told him Charles committed the crime. McGowen’s sister, Rose Ayers, stated she
had heard from Kindle’s mother, Brenda, that Charles had committed the
robbery but that she was not sure if Brenda “was just trying to protect [Kindle].”
McGowen’s sister, Valorie Foote, stated she had “heard that Charles committed
this crime and not Roger, but I don’t know.” McGowen’s sister, Michelle Perkins,
stated she heard from “Uncle Jimmy” when he “got drunk” that “Charles
murdered someone and Roger was taking the blame.” She also stated she
remembered Charles was shot in the leg “in early 1986” and that he stated
someone had shot him. Joe Williams, an inmate, stated he saw Charles on the



                                       28
                                  No. 10-70014

night of the murder, that Charles “had been shot in the thigh,” and that “Charles
told me that night that he had tried to rob a place [and] got in a shoot out.”
      Norman Ray Willis, who testified against McGowen in the punishment
phase of the trial, stated Kindle had told him Charles was the killer, but Willis
also stated that Kindle was “sly” and “shady” and could not be trusted and that
he thought Kindle was the killer. Martha Jackson, whose daughter once dated
McGowen, stated she had heard from a woman named Linda Faye Allen, who
did not submit an affidavit, that “Kirkwood” (presumably meaning Kindle) had
bragged to Allen about the murder.
      The district court concluded, based on these affidavits, that McGowen had
not presented reliable evidence demonstrating it was more likely than not that
no reasonable juror would have convicted him in the light of the new evidence.
We agree. The Supreme Court’s decision in Herrera v. Collins81 is instructive.
In Herrera, the Court evaluated a petitioner’s evidence purportedly
demonstrating his actual innocence after “assum[ing], for the sake of argument,”
that “a truly persuasive demonstration of ‘actual innocence’ made after trial
would render the execution of a defendant unconstitutional, and warrant federal
habeas relief.”82 The Court noted that the petitioner’s newly discovered evidence
in that case consisted solely of affidavits, which are disfavored in the new trial
context “because the affiants’ statements are obtained without the benefit of
cross-examination and an opportunity to make credibility determinations.”83
Further, the affidavits in that case were “particularly suspect” because, with one
exception, they consisted of hearsay and contained inconsistencies.84 Moreover,


      81
           506 U.S. 390 (1993).
      82
           Id. at 417.
      83
           Id.
      84
           Id. at 417-18.

                                       29
                                   No. 10-70014

the affidavits were given over eight years after the trial and after the alleged
perpetrator of the murders was dead, with no explanation for the delay.85 The
Court concluded that, although the statements in the affidavits contradicted the
evidence received at trial such that “the jury would have had to decide important
issues of credibility,” the petitioner’s “showing of innocence [ten years after trial]
falls far short of that which would have to be made.”86
      There are several similarities between the new evidence presented in
Herrera and that presented in McGowen’s case. First, McGowen’s evidence
consists solely of affidavits, most of which are based on hearsay. Among other
inconsistencies, some implicate Kindle, while others implicate Charles. With
regard to the evidence indicating Charles may have been shot while robbing the
Club, the district court pointed out the existence of other evidence contradicting
this theory, stating:
      Kindle found the slug Ms. Pantzer fired from her gun. The autopsy
      describes a wound in Charles McGowen’s thigh, but does not show
      a corresponding exit wound. Unless the bullet struck Charles
      McGowen and then fell to the floor, the assailant (if injured at all)
      would have received a through-and-through wound. McGowen has
      not pointed to anywhere in the record showing that the assailant
      left blood on the floor. The record does not mention a trail of blood
      left by a fleeing gunman. The question of whether the gunman was
      even injured is important, as no witness testified that the masked
      man staggered away in pain.
In addition to these issues, the timing of the affidavits is suspect. Williams’s and
Jackson’s affidavits were prepared in 1998, eleven years after the trial, and most
of the others, including Kindle’s, were prepared in 2007, twenty years after the
trial. All of the affidavits were prepared after one of the alleged perpetrators,
Charles McGowen, was dead.            Moreover, and more importantly, these


      85
           Id.
      86
           Id. at 418-19.

                                         30
                                        No. 10-70014

statements must be evaluated in conjunction with McGowen’s admitted
confession. Challenging McGowen’s identity as the killer at trial in light of the
confession, particularly without any physical evidence, would have been difficult.
       As in Herrera, the statements in the affidavits contradict the evidence
presented at trial regarding the identity of the murderer and would have
required the jury to make credibility determinations. However, given the many
issues regarding the affidavits, outlined above, McGowen has not made the
“extraordinarily high” “threshold showing” required.87 Moreover, his affidavit
evidence stands in sharp contrast to the examples provided by the Supreme
Court of evidence that could potentially make such a showing, such as
“exculpatory scientific evidence, credible declarations of guilt by another,
trustworthy eyewitness accounts, and certain physical evidence.”88 He therefore
has not presented “new, reliable evidence that was not presented at trial
[showing] that it was ‘more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.’”89 Accordingly, reasonable jurists
would not find it debatable whether the district court was correct in its ruling,90
and McGowen is not entitled to a COA on his denied claims.
                                              VII
       We conclude that the jury could not meaningfully consider relevant
mitigating evidence presented by McGowen in determining whether a death
sentence was appropriate. Therefore, the district court did not err in granting
habeas relief on McGowen’s Penry claim.                McGowen is not entitled to a



       87
            Id. at 417.
       88
          Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Schlup v. Delo, 513
U.S. 298, 324 (1995); Sawyer v. Whitley, 505 U.S. 333, 340 (1992)).
       89
            Id. (quoting Schlup, 513 U.S. at 327).
       90
            Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                               31
                                    No. 10-70014

certificate of appealability on the claims denied by the district court because he
has abandoned all but three of those claims, which were themselves procedurally
defaulted.   McGowen has also not demonstrated that the fundamental
miscarriage of justice exception applies to allow federal habeas review of those
claims.
                                *        *         *
      For the foregoing reasons, we AFFIRM the district court’s judgment.




                                        32
