     Case: 12-70024       Document: 00512320753         Page: 1     Date Filed: 07/25/2013




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

                                                                            FILED
                                                                            July 25, 2013

                                       No. 12-70024                        Lyle W. Cayce
                                                                                Clerk

TAI CHIN PREYOR,

                                                  Petitioner - Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-857


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Tai Chin Preyor was convicted and sentenced to death in Texas for the
2004 capital murder of Jami Tackett while in the course of committing and
attempting to commit burglary. He requests a certificate of appealability (COA)
to appeal the district court’s denial of federal habeas relief. The request for a
COA is DENIED for the reasons that follow.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-70024

                                      I.
      The State presented the following evidence at trial. Over an extended
period of time the victim, Jami Tackett, sold illegal drugs to Preyor, who then
sold them to others. On February 25, 2004, Preyor, whose nickname was “Box,”
called Tackett and said that he was coming to her apartment that night. Tackett
was entertaining friends, including Jason Garza, at her apartment. After the
last guest left at about 4:00 a.m. on February 26, Tackett and Garza locked the
front door, turned out the lights, and went to bed. Garza testified that when
they were almost asleep, he heard two or three loud bangs at the door. Then a
man peeked into the bedroom and Tackett said, “Box, what the hell are you
doing here.” Preyor, who was dressed in black and wearing a hood and gloves,
said “F*** this,” and attacked Garza. After Preyor stabbed Garza, Garza
escaped and asked neighbors to call for help. Preyor then stabbed Tackett
numerous times and cut her throat, severing her trachea, jugular vein, and
carotid artery.
      Several of Tackett’s neighbors heard her screaming and saw Preyor when
he left her apartment. They saw Tackett on the floor, covered in blood and
making gurgling sounds. Jaclyn Villanueva asked Tackett if the man who came
out of the apartment wearing black clothing hurt her. Although Tackett was
unable to speak, she nodded her head affirmatively. Tackett died before the
paramedics arrived.
      Preyor left Tackett’s apartment and went downstairs, where his vehicle
was parked, but returned to Tackett’s apartment where he apparently searched,
unsuccessfully, for his keys. After the murder, David Pointer, Tackett’s former
boyfriend, found some car keys in her apartment and turned them over to the
police, who determined that they were the keys to Preyor’s vehicle.
      When Preyor left Tackett’s apartment the second time, he encountered
police officers. When they ordered him to stop and get on the ground, Preyor

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                                  No. 12-70024

refused to comply. The police had to use pepper spray to subdue him. Preyor
was covered in blood, which DNA analysis later indicated was Tackett’s.
      Police found Preyor’s gloves and the murder weapon on the ground next
to a vehicle in the parking lot, later identified as Preyor’s vehicle. They also
discovered a loaded shotgun on the bumper of the vehicle and found blood on the
driver’s-side door handle of the vehicle. The pattern on Preyor’s boots matched
the pattern of the bloody footprints found in Tackett’s apartment. Tackett’s
DNA profile was also consistent with blood found on the knife, gloves, car door
handle, a swab from Preyor’s face, and a swab from his hand and boot. Garza’s
DNA profile was consistent with blood found on Preyor’s watch and knit cap.
Blood consistent with a mixture of Tackett’s and Preyor’s DNA profiles was
located on various items, including a nail clipping from Tackett and a swab from
Preyor’s face.
      At trial, Detective Barney Whitson read aloud the statement Preyor made
to the police after he was taken into custody, quoted below in relevant part:
            The truth about what happened was I went over to Jami’s to
      buy some drugs from her. Jami was my connect. I buy my drugs
      from her and I sell them to people I know. This morning I went over
      to Jami’s apartment to buy some drugs. I had called Jami earlier
      that day and asked her what was up. Jami told me nothing. Jami
      told me I needed to come and talk to her. Jami told me she had
      company, so I told her I would hook up with her later. It was about
      11:30 p.m. on Wednesday that I talked to Jami. When I told Jami
      I would hook up with her later, Jami told me to come. Jami said she
      was just kicking with her home boy from the studio and everything
      was cool.

             When Jami told me she was kicking it with someone from the
      studio, I thought she was hanging out with my man, Keith, because
      Keith is a rapper. I was over to one of my home boy’s house when
      I talked to Jami. I left his crib and went to a pay phone to call Jami.
      I called Jami from the pay phone. After I finished talking to Jami,
      I went back to my boy’s crib. I don’t want to give my boy’s name,


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 because I don’t want him involved in this. I stayed over at my boy’s
 crib until I went back over to Jami’s apartment.

        It was about 4:00 or 5:00 in the morning when I got to Jami’s
 apartment. I knocked on the door and Jami opened the door and let
 me in. I had felt the phone call from Jami was funny, because Jami
 usually tell[s] me who she has over to her place. When I got to
 Jami’s apartment, she let me in. When I got inside the apartment
 was totally dark inside the apartment. I could see a dude sitting on
 the sofa inside the living room. I could see the guy because of the
 TV light from the TV. The guy was a Hispanic dude with short,
 slick, black hair. The dude was shorter than me, but he was stocky
 build.

        When I saw the guy, I didn’t trip but I was very
 uncomfortable. Jami sensed that I was uncomfortable. I didn’t even
 sit down. Jami went to lock the door behind me, and the dude
 started to get up. I bolted down the hallway to the back rooms and
 pushed open the doors to the rooms to the back. I was trying to see
 how many people were in the house. I was trying to turn on some
 lights, but I didn’t know where the switches were.

       There was no one else in the apartment. I went back up to the
 front of the apartment. When I got to the front of the apartment,
 old boy tried to grab me, so I started fighting with him. I was
 getting the best of the guy until Jami started helping him. Jami
 grabbed me and started grabbing for my face. That’s when she
 scratched my face. I felt like I was being overwhelmed and I didn’t
 have the upper hand anymore, so I pulled my knife. I pulled my
 knife and poked the dude with it. After I poked him – I don’t
 remember how many times I poked him, he took off. He opened the
 door and bolted out of the apartment. Jami was still there and she
 was still trying to fight. She was scratching and grabbing at me and
 I was still slashing at her. She grabbed me, so I started poking her.
 She fell down and I ran out of there.

       I ran across the apartment courtyard and was yelling for help.
 I know that I had cut myself on my finger. The dude was holding
 me, so I tried to slice his hand. He pulled away and I sliced my own
 finger. I didn’t know I had all that blood on me. I knew I had some
 blood on me, but not that much. I didn’t run when the police got


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                                  No. 12-70024

      there, because I felt like I was a victim. I was the one being robbed,
      and I defended myself. I had no idea how bad I had hurt Jami. I
      wouldn’t have hurt [her] that bad. When I walked down the stairs
      and started to cross the courtyard, the police ran up behind me.
      They were yelling, stop, or I’ll shoot. I turned around and put my
      hands in the air. I told them I had no weapons, but I would not stop
      walking. I told them they would have to shoot me if they wanted me
      to stop walking.

            Ten seconds later after that I got tackled. The officers cuffed
      me and one of them pepper sprayed me while I was laying on the
      ground handcuffed. I didn’t tell the truth in my first statement,
      because I didn’t want to admit I was buying drugs. I didn’t want
      that to get out. This is all I know about this incident, this all
      happened in the City of San Antonio, Bexar County, Texas. This is
      the end of my two-page statement, I have read and understand this
      statement. I have signed this statement indicating it’s true and
      correct. I gave this statement voluntarily without the promise of
      anything or being threatened.

            I felt like I was the victim, so I didn’t run, but know that the
      whole thing was over drugs so I didn’t want to reveal that. I felt like
      it was going to be worked against me.
      Preyor did not call any witnesses at the guilt-innocence phase, and the
jury was instructed that Preyor had “elected not to testify.” Trial counsel
requested and obtained jury instructions on self-defense and the lesser-included
offenses of murder and aggravated assault. The jury found Preyor guilty of
capital murder.
      At the punishment phase, the State presented evidence that Preyor had
committed a prior drug offense in Syracuse, New York, in 1999. A Syracuse
police officer testified that he discovered a bag containing nearly four ounces of
crack cocaine, with a street value of approximately $10,000, when conducting a
pat-down search of Preyor. Preyor fled, and another officer later tackled and
handcuffed him. Preyor pled guilty to possession of a controlled substance in
exchange for a one-year sentence and the dismissal of a charge of resisting


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                                  No. 12-70024

arrest. Preyor told his probation officer that he had used cocaine since he was
an adolescent, and that he had started using it consistently in 1998, when he
had an affair with a woman who was a drug abuser. Preyor also told his
probation officer that the crack cocaine was for his own personal use. However,
when he was interviewed by a clinical psychologist, Dr. Murphy, prior to his
capital murder trial, he acknowledged that he had been selling drugs.
      After serving time for his drug offense in New York, Preyor moved to San
Antonio, where he was joined by his wife and children. About a month before
the murder, on January 14, 2004, the police went to Preyor’s apartment on a
“family violence call.” Preyor was angry and he was pacing, yelling, and
screaming, but he calmed down when his brother, a San Antonio police officer,
arrived. His wife, who was pregnant with their fourth child at that time, did not
appear to be injured and said that she did not need assistance.
      Preyor committed several minor disciplinary infractions while in the Bexar
County Jail awaiting trial: (1) possession of ten Tylenol tablets (eight more than
the two that he was allowed to possess); (2) disobeying an order from staff; and
(3) engaging in “loud, boisterous behavior or communication with other inmates.”
The State also presented evidence that Preyor had the dates of his drug offense
and the murder tattooed on his body. He told Dr. Murphy that the tattoos were
to remind him of mistakes that he did not want to repeat.
      The jury found beyond a reasonable doubt that there was a probability
that Preyor would commit criminal acts of violence that constituted a continuing
threat to society, and that there were insufficient mitigating circumstances to
warrant a sentence of life imprisonment.
      On direct appeal, Preyor was represented by Michael Gross, one of the
attorneys who had represented him at trial. The Texas Court of Criminal
Appeals affirmed Preyor’s conviction and death sentence in an unpublished



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opinion. Preyor v. State, No. AP-75119, 2008 WL 217974 (Tex. Crim. App. Jan.
23, 2008).
       Terry McDonald was appointed to represent Preyor in state post-
conviction proceedings. McDonald filed a state habeas application on behalf of
Preyor in November 2007, raising the following claims:
       (1) trial counsel was ineffective in failing to investigate the facts and
develop a consistent trial strategy;
       (2) trial counsel was ineffective in failing to investigate and present
evidence that a burglary did not occur;
       (3) trial counsel was ineffective in failing to have a correctional system
expert appointed to aid the jury in understanding the degree of safety in prison
society;
       (4) the trial court failed properly to instruct the jury on mitigation;
       (5) lethal injection is cruel and unusual punishment in violation of the
Eighth Amendment; and
       (6) his due process rights were violated because the same act involved in
burglary was the act that killed the victim, in violation of the merger doctrine.
       The trial court scheduled an evidentiary hearing on Preyor’s first state
habeas application. Prior to that hearing, notwithstanding that Preyor was
represented by McDonald, Preyor’s current federal habeas counsel, Brandi
Estelle from Beverly Hills, California, who apparently had been hired by the
family, filed another state habeas application in the trial court on December 1,
2008,1 raising the following claims for relief:


       1
          The record reflects that the state habeas application filed by Estelle on December 1,
2008 filing was preceded by several unsuccessful attempts by Estelle to be admitted pro hac
vice. A state habeas application that appears to be substantially identical to the December
1, 2008 filing, was received by the Texas Court of Criminal Appeals on September 29, 2008.
In a letter to the Court dated October 10, 2008, Estelle stated that the application received by
the Court on September 29, 2008 “IS A NEW AND SEPARATE PETITION and should not be
considered in conjunction with any other Petition filed by any other lawyer for Appellant. .

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      (1) trial counsel rendered ineffective assistance by failing to allow Preyor
to testify;
      (2) trial counsel rendered ineffective assistance by failing to investigate
and adequately prepare for a defense at trial;
      (3) trial counsel rendered ineffective assistance by failing to object during
voir dire to the prosecutors’ lecturing to prospective jurors, using brainwashing
tactics instead of asking questions, and indoctrinating prospective jurors;
      (4) trial counsel rendered ineffective assistance by failing to conduct voir
dire regarding racial bias or prejudice;
      (5) trial counsel rendered ineffective assistance by making inconsistent
arguments in opening statement and closing arguments and by failing to
produce any evidence to support the theory of self-defense asserted in closing
arguments.
      This December 1, 2008 application included the following paragraph:
            There is another habeas corpus petition pending, (No. AP-
      75119), and no request is made to consolidate that with this
      Petition, in that THIS Petition is based on ineffective assistance of
      APPELLATE COUNSEL. . . . The other Petition filed on behalf of
      the Defendant does not raise a colorable claim as to ineffective
      assistance of trial counsel. The within Petition, however, does.
      Both McDonald and Estelle were present, on February 9, 2009, at the state
evidentiary hearing held on Preyor’s first state habeas application. At that
hearing, McDonald stated that he had been informed by the Texas Court of
Criminal Appeals that it was considering the application filed by Estelle as a
second writ, “which is not provided for under Texas law.” McDonald stated that
he had spoken with Preyor and that it was his desire to have the writ filed by
Estelle considered by the court. In response to questions from McDonald, Preyor


. . This Petition is based on grounds that Appellant suffered from INEFFECETIVE [sic]
ASSISTANCE FROM TRIAL AND APPELLATE COUNSEL, which have never previously
been asserted by Appellant.”

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testified under oath at the hearing that his family had retained Estelle to
represent him and that he wished to proceed with the habeas application filed
by Estelle, rather than the one filed by McDonald.
      On March 26, 2009, the trial court submitted findings of fact and
conclusions of law recommending that Preyor’s first state habeas application be
denied. The Texas Court of Criminal Appeals adopted all but one of the trial
court’s factual findings, adopted all of the trial court’s legal conclusions, and
denied Preyor’s initial application on October 28, 2009. Ex parte Taichin Preyor,
No. WR 72,660-01, 2009 WL 3474097 (Tex. Crim. App. Oct. 28, 2009). On that
same date, the Texas Court of Criminal Appeals, construing the December 1,
2008 filing by Estelle as a subsequent application, dismissed it, pursuant to
Texas Code of Criminal Procedure Article 11.071, Section 5(a), as an abuse of the
writ. Ex parte Taichin Preyor, No. WR 72,660-02, 2009 WL 3474097 (Tex. Crim.
App. Oct. 28, 2009).
      Estelle filed a third state habeas application on behalf of Preyor in the
trial court on December 21, 2009, raising a conflict of interest claim based on
trial counsel’s “fraternizing, laughing, and having a conversation” with the
victim’s stepfather during a recess at trial. Preyor asserted that this claim could
not have been presented previously because the factual basis for it was not
discovered by his counsel until February 9, 2009. This third application also
appears to raise an ineffectiveness claim with regard to McDonald: It asserts
that before withdrawing or abandoning his client, McDonald made no effort to
either replace his petition with that of Estelle’s or to supplement his application
with the claims asserted in the application filed by Estelle on December 1, 2008.
The Texas Court of Criminal Appeals dismissed the third state habeas
application as an abuse of the writ on November 9, 2011. Ex parte Taichin
Preyor, No. WR 72,660-03, 2011 WL 5438390 (Tex. Crim. App. Nov. 9, 2011).



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      Preyor filed a federal habeas petition on October 21, 2010. He alleged that
trial counsel rendered ineffective assistance by (1) failing to allow him to testify
at trial; (2) failing to investigate and adequately prepare for a defense at trial;
(3) failing to object to the prosecutor’s lecturing to prospective jurors and use of
brainwashing tactics and indoctrination during voir dire; (4) failing to conduct
voir dire regarding racial bias or prejudice; and (5) making false, inconsistent
and confusing representations to the jury in opening statement and closing
argument. He alleged that appellate counsel was ineffective in failing to present
ineffective assistance of trial counsel claims on direct appeal. Finally, he alleged
that his first state habeas counsel rendered ineffective assistance by (1) arguing
trial strategy in the state writ; (2) failing to produce any evidence at the
evidentiary hearing; (3) abandoning his client by failing to prepare proposed
findings of fact and conclusions of law; and (4) failing to make a motion for
appointment of federal habeas counsel.
      Preyor filed an amended federal habeas petition on December 11, 2010, in
which he added a claim that trial counsel had a conflict of interest based on his
laughing and talking with the victim’s stepfather, a prosecution witness, during
a trial recess.
      In its answer, the State asserted that most of Preyor’s claims were
procedurally defaulted because the state court had dismissed them as abusive.
In his traverse to the State’s answer, filed on June 28, 2011, Preyor requested
an evidentiary hearing and asserted that trial counsel should have investigated
the ownership of the shotgun found by police on the bumper of Preyor’s vehicle
and should have produced evidence of the local weather conditions and
temperature at the time of the murder. He did not respond to the State’s
procedural default claims.
      The district court held that most of Preyor’s complaints of ineffective
assistance of trial counsel were procedurally defaulted because they were raised

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only in his second and third state habeas applications, both of which were
dismissed as abusive by the state court.        Alternatively, the district court
addressed the claims on the merits, de novo, and held that Preyor’s complaints
about the performance of his trial counsel all were without merit. The district
court held that Preyor was not entitled to an evidentiary hearing to develop new
facts and new evidence in support of the claims the state habeas court rejected
on the merits, and that he had failed to allege sufficient specific facts to warrant
a federal evidentiary hearing with respect to the claims that the district court
rejected on de novo review. The district court denied relief and denied a COA.
      Preyor filed a motion for reconsideration, citing Martinez v. Ryan, 132 S.
Ct. 1309 (2012). Although Martinez was decided on March 20, 2012, nearly
three months before the district court’s decision denying relief on June 15, 2012,
Preyor waited until his motion for reconsideration to argue, for the first time,
that ineffective assistance of initial state habeas counsel excused his procedural
default. The district court denied the motion. It stated that under Martinez,
only substantial complaints of ineffective assistance of trial counsel can be cause
for a procedural default, and none of Preyor’s complaints about the performance
of his trial counsel are substantial because he failed to demonstrate either
deficient performance or prejudice.
                                        II.
      Preyor requests a COA for the following claims:
      (1) Trial counsel rendered ineffective assistance by (a) failing to inquire
into racial bias at jury selection; (b) failing to present any witnesses or evidence
of self-defense; (c) withdrawing Preyor’s only plausible defense; (d) presenting
contradictory defense theories in opening statement and closing argument; and
(e) having a conflict of interest as a result of inappropriate contact with the
victim’s stepfather.



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      (2) Trial counsel’s decision not to call Preyor as a witness violated his
constitutional right to testify.
      To obtain a COA, Preyor must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating 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.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)). “[A] claim can be debatable even though every jurist of
reason might agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.” Id. at 338. In making the
decision whether to grant a COA, this Court’s examination is limited to a
“threshold inquiry,” which consists of “an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. at 327, 336. This Court
cannot deny a COA because it believes that Preyor ultimately will not prevail on
the merits of his claims. Id. at 337. On the other hand, “issuance of a COA must
not be pro forma or a matter of course.” Id. “While the nature of a capital case
is not of itself sufficient to warrant the issuance of a COA, in a death penalty
case any doubts as to whether a COA should issue must be resolved in the
petitioner’s favor.”   Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005)
(brackets, internal quotation marks, and citations omitted).
      Before addressing Preyor’s claims, we first turn to consider whether
Preyor has established cause to excuse the procedural default of most of his
claims.
                                   A. Procedural Bar
      The district court held that most of Preyor’s claims are procedurally
defaulted because he raised them for the first time in subsequent state habeas
applications that were dismissed by the state court as abusive. Preyor contends

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that the ineffective assistance of his first state habeas counsel, Terry McDonald,
serves as cause to excuse the procedural default.
        A federal court may consider the merits of a procedurally defaulted claim
if the petitioner shows “cause for the default and prejudice from a violation of
federal law.” Martinez, 132 S. Ct. at 1316 (citing Coleman v. Thompson, 501
U.S. 722, 750 (1991)). In Martinez, the Supreme Court answered a question left
open in Coleman: “whether a prisoner has a right to effective counsel in
collateral proceedings which provide the first occasion to raise a claim of
ineffective assistance at trial.” 132 S. Ct. at 1315. The Court held:
        Where, under state law, claims of ineffective assistance of trial
        counsel must be raised in an initial-review collateral proceeding, a
        procedural default will not bar a federal habeas court from hearing
        a substantial claim of ineffective assistance at trial if, in the initial-
        review collateral proceeding, there was no counsel or counsel in that
        proceeding was ineffective.
Id. at 1320. The standards of Strickland v. Washington, 466 U.S. 668 (1984),
apply in assessing whether initial-review habeas counsel was ineffective. Id. at
1318.
        Although Texas does not preclude prisoners from raising ineffective
assistance of trial counsel claims on direct appeal, the Court held in Trevino v.
Thaler, 133 S. Ct. 1911 (2013), that the rule of Martinez nevertheless applies to
Texas cases because “the Texas procedural system–as a matter of its structure,
design, and operation–does not offer most defendants a meaningful opportunity
to present a claim of ineffective assistance of trial counsel on direct appeal.” Id.
at 1921.
        To succeed in establishing cause to excuse the procedural default of his
ineffective assistance of trial counsel claims, Preyor must show that (1) his
underlying claims of ineffective assistance of trial counsel are “substantial,”
meaning that he “must demonstrate that the claim[s] ha[ve] some merit,”


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Martinez, 132 S. Ct. at 1318; and (2) his initial state habeas counsel was
ineffective in failing to present those claims in his first state habeas application.
See id.; Trevino, 133 S. Ct. at 1921.
      To establish ineffective assistance of his initial state habeas counsel,
Preyor must show both that habeas counsel’s performance – in failing to present
the ineffective assistance of trial counsel claims in the first state habeas
application – was deficient and that he was prejudiced by the deficient
performance – that is, that there is a reasonable probability that he would have
been granted state habeas relief had the claims been presented in the first state
habeas application. See Strickland, 466 U.S. at 687. The Strickland standard
also applies to Preyor’s underlying ineffective assistance of trial counsel claims.
      “[T]he proper standard for attorney performance is that of reasonably
effective assistance.”     Id.   “[T]he defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
             Judicial scrutiny of counsel’s performance must be highly
      deferential. It is all too tempting for a defendant to second-guess
      counsel’s assistance after conviction or adverse sentence, and it is
      all too easy for a court, examining counsel’s defense after it has
      proved unsuccessful, to conclude that a particular act or omission of
      counsel was unreasonable.          A fair assessment of attorney
      performance requires that every effort be made to eliminate the
      distorting effects of hindsight, to reconstruct the circumstances of
      counsel’s challenged conduct, and to evaluate the conduct from
      counsel’s perspective at the time. Because of the difficulties
      inherent in making the evaluation, a court must indulge a strong
      presumption that counsel’s conduct falls within the wide range of
      reasonable professional assistance; that is, the defendant must
      overcome the presumption that, under the circumstances, the
      challenged action might be considered sound trial strategy. There
      are countless ways to provide effective assistance in any given case.
      Even the best criminal defense attorneys would not defend a
      particular client in the same way.
Id. at 689 (internal quotation marks and citations omitted).


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         With respect to the duty to investigate,
         strategic choices made after thorough investigation of law and facts
         relevant to plausible options are virtually unchallengeable; and
         strategic choices made after less than complete investigation are
         reasonable precisely to the extent that reasonable professional
         judgments support the limitations on investigation. In other words,
         counsel has a duty to make reasonable investigations or to make a
         reasonable decision that makes particular investigations
         unnecessary. In any ineffectiveness case, a particular decision not
         to investigate must be directly assessed for reasonableness in all the
         circumstances, applying a heavy measure of deference to counsel’s
         judgments.
Id. at 690-91. See also Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v.
Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). The
Supreme Court recently stated that these three post-Strickland cases, each of
which granted relief on ineffective assistance claims, did not establish “strict
rules”     for   counsel’s   conduct    “[b]eyond     the   general   requirement    of
reasonableness.” Cullen v. Pinholster, 131 S. Ct. 1388, 1406-07 (2011). “An
attorney need not pursue an investigation that would be fruitless, much less one
that might be harmful to the defense.” Harrington v. Richter, 131 S. Ct. 770,
789-90 (2011). Preyor’s trial counsel, as well as his state habeas counsel, were
“entitled to formulate a strategy that was reasonable at the time and to balance
limited resources in accord with effective trial tactics and strategies.” Id. at 789.
         To demonstrate prejudice, Preyor
         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. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 131 S. Ct. at 792 (citation omitted).
This showing is intentionally difficult to satisfy: “In assessing prejudice under
Strickland, the question is not whether a court can be certain counsel’s


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                                  No. 12-70024

performance had no effect on the outcome . . . . Instead, Strickland asks whether
it is ‘reasonably likely’ the result would have been different.” Richter, 131 S. Ct.
at 791-92 (citations omitted).
      Even if Preyor establishes that ineffective assistance of his initial state
habeas counsel constitutes cause for the default of his ineffective assistance of
trial counsel claims, “[a] finding of cause and prejudice does not entitle [him] to
habeas relief. It merely allows a federal court to consider the merits of a claim
that otherwise would have been procedurally defaulted.” Martinez, 132 S. Ct.
at 1320. In this case, the district court considered the merits of the procedurally
defaulted claims and held that Preyor was not entitled to relief because he had
failed to demonstrate that his trial counsel rendered deficient performance or
that he was prejudiced. Because the district court addressed the merits of
Preyor’s ineffective assistance of trial counsel claims, it is arguable that Preyor
has received the relief available to him under Martinez and Trevino. And, as we
have noted, when it denied Preyor’s motion for reconsideration, the district court
held that Martinez offered no sustenance for Preyor because his ineffective
assistance of trial counsel claims were not substantial, because they lacked
merit.
      We conclude that, in this case, it makes no difference to the outcome
whether the ineffectiveness of Preyor’s first state habeas counsel excused the
procedural default of Preyor’s ineffective assistance of trial counsel claims,
because reasonable jurists could not debate the district court’s conclusion that
Preyor’s claims are not substantial or its alternative conclusion, on de novo
review, that he failed to demonstrate that trial counsel rendered deficient
performance and that he was prejudiced.
      We now turn to address each of Preyor’s COA requests.




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                                   No. 12-70024

                     B. Ineffective Assistance of Trial Counsel
            1. Failure to Inquire into Racial Bias at Jury Selection
      Preyor asserts that this is a racially sensitive case because he is black and
the victim, Tackett, was white, and that trial counsel rendered ineffective
assistance by failing to conduct a reasonable inquiry into racial bias and
prejudice of prospective jurors.
      The district court held that this claim is procedurally defaulted because
it was first presented in Preyor’s second habeas petition, which the state court
dismissed as an abuse of the writ, and that Preyor had failed to establish cause
and prejudice to excuse the default. Alternatively, the district court held that
the claim lacks merit. The district court concluded that Preyor had failed to
allege any facts showing that racial issues were inextricably intertwined with
the facts of the offense or the circumstances of trial, and detailed the conclusory
nature of Preyor’s claim: (1) although Preyor argued that his trial counsel
should have questioned venire members about their relationships with black
people, interracial couples, and their feelings about black people generally, he
did not identify any member of the venire who should have been questioned in
such a manner; (2) he did not identify any venire member whose questionnaire
responses, physical appearance, demeanor, or background information suggested
that he or she might have racially biased or prejudiced views that would impair
his or her ability to render a verdict based solely on the evidence and the law; (3)
he did not allege or identify any venire member who was excused for cause
because of racial bias or prejudice; (4) he did not allege any specific facts showing
that racial bias or prejudice was so prevalent in the community at the time of his
trial as to require questioning every venire member about racial bias or
prejudice; and (5) he did not allege any specific facts showing that his race or
ethnicity or the race or ethnicity of his victims played any role in his offense or
in the outcome of the trial, and identified no evidence showing that his offense

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                                       No. 12-70024

was racially motivated. The district court held that, under such circumstances,
trial counsel cannot reasonably be faulted for failing to question each member
of the venire about racial bias or prejudice.
       Reasonable jurists would not debate the district court’s conclusion that
Preyor failed to allege any specific facts showing that trial counsel should have
been aware at the time of voir dire of the potential for racial bias or prejudice
among the venire. As the district court pointed out, there is no per se rule
requiring voir dire on racial bias or prejudice in every case in which the
defendant and the victim are of different races. Ristaino v. Ross, 424 U.S. 589,
596 n.8 (1976). Instead, whether such voir dire is necessary requires “an
assessment of whether under all of the circumstances presented there was a
constitutionally significant likelihood that, absent questioning about racial
prejudice, the jurors would not be as ‘indifferent as (they stand) unsworne.’” Id.
at 596 (quoting Coke on Littleton 155b (19th ed. 1832)). Reasonable jurists
would agree with the district court that Preyor failed to show the existence of
any such circumstances. Accordingly, Preyor’s request for a COA for this claim
is denied.
             2. Failure to present witnesses or evidence of self defense
                                and right to testify
       Preyor argues that self-defense was his only plausible defense and that
trial counsel rendered ineffective assistance by failing to present any witnesses
or evidence to support that defense. He does not identify any evidence that
should have been presented other than his own testimony.2 This claim is largely
duplicative of Preyor’s claim that trial counsel “withdrew” the defense of self-


       2
         Preyor also speculates – without any supporting evidence – that, if trial counsel had
investigated the shotgun found on the bumper of his vehicle, the investigation would have
shown that the gun was connected to a prosecution witness. He does not explain, however,
how such evidence would have supported his claim that he cut Tackett’s throat with a knife
in self-defense.

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                                        No. 12-70024

defense, and that counsel’s decision not to call him as a witness violated his
constitutional right to testify. We therefore address all of these claims together.
      Preyor asserts that he wanted to testify at trial and was assured by
defense counsel that he would be called to testify, but that defense counsel made
the decision not to call him as a witness and thus prevented him from testifying.
Preyor argues that because he was the only other person present at the scene,
his testimony was essential to the theory of self-defense and that the defense
was essentially “withdrawn” when counsel did not call him to the witness stand.
He contends that defense counsel’s decision not to allow him to testify deprived
him of his constitutional right to take the stand and also deprived him of a
potentially meritorious defense. He contends further that the admission into
evidence of his statement was not an adequate substitute for his testimony.
      The district court referred to the strong presumption that counsel made
all significant decisions in the exercise of reasonable professional judgment and
concluded that Preyor had not presented any specific factual allegations or
evidence showing that trial counsel did anything which prevented Preyor from
exercising his constitutional right to testify on his own behalf at the guilt-
innocence phase of his capital murder trial, or that the decision not to have him
testify was anything other than an informed, voluntary decision made by him in
consultation with his trial counsel.3           Specifically, Preyor did not present an
affidavit stating (1) that his trial counsel failed to advise him of his right to
testify at trial, (2) that he ever advised his trial counsel that he wished to testify,
and (3) what information he was prepared to offer had he been called to testify.
      The district court noted that Preyor’s version of the events surrounding his
fatal assault on Tackett was admitted into evidence in the form of his written
statement, which could not be cross-examined. If Preyor had testified at trial in


      3
          The jury charge stated specifically that Preyor had elected not to testify.

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                                      No. 12-70024

a manner consistent with his written statement, the district court found that it
is likely that he would have been subjected to damaging cross-examination about
(1) why he said in his statement to police that Tackett opened the door and let
him into her apartment, when photographs of the door indicated that it had been
broken in;4 (2) why numerous witnesses heard a woman screaming but no one
claimed to have heard him; (3) why he wore gloves and brought a knife to
Tackett’s apartment; (4) why he disposed of his bloody gloves and knife by
throwing them over a fence not far from where his vehicle was parked and then
returned to the apartment complex courtyard (a fact omitted from his written
statement to police); (5) why he resisted when the police tried to secure him in
handcuffs; (6) why he suffered no serious injuries, while Garza sustained a
serious chest wound and Tackett was sliced or stabbed numerous times over her
body and had numerous defensive wounds; and (7) why he remained in Tackett’s
apartment after Garza left. The court concluded that, viewed objectively, there
were reasonable strategic reasons why trial counsel may have believed that
calling Preyor to testify at the guilt-innocence phase of trial would have proven
more risky than potentially beneficial. The district court also pointed out that
if Preyor had testified, he could have been cross-examined about his prior
conviction for possession of almost $10,000 worth of crack cocaine and his
admissions that he was again dealing drugs after his move to San Antonio. The
district court concluded that Preyor had failed to carry his burden of overcoming
the presumption that the decision by trial counsel not to call him to testify at




       4
        Preyor argued in the district court that trial counsel should have presented evidence
that the door to Tackett’s apartment was broken out from the inside, rather than broken in
from the outside. The district court held that any such attempt would have been futile
because photographs admitted into evidence at trial show a door still on its hinges, an
undamaged exterior door frame, and an interior door frame shattered to pieces, suggesting
force was applied to the exterior of the door.

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                                  No. 12-70024

trial constituted adequate assistance and was made in the exercise of reasonable
professional judgment.
      The district court also held that Preyor could not establish prejudice.
Based on its independent review of the entire record, the district court held that
there is no possibility, much less a reasonable probability, that, but for the
failure of trial counsel to call Preyor to testify at trial, the outcome of either
phase of the trial would have been different.
      The district court noted that in his pleadings, Preyor claimed that he
would have testified that: (1) he was attacked by Tackett and Garza shortly
after his arrival at Tackett’s apartment; (2) shortly before his arrival at her
apartment, Tackett directed him in a telephone conversation to come over to her
apartment; (3) both Tackett and Garza appeared to be “under the influence”; (4)
Tackett immediately snatched his money clip from his hand; and (5) the shotgun
found on the bumper of his vehicle had absolutely no connection to him.
      The district court observed that the jury already was aware, from Preyor’s
written statement, of his assertions that he telephoned Tackett the evening
before the murder and arranged to visit her apartment and that Tackett and
Garza attacked him when he arrived at her apartment. Thus, his first two
pieces of proposed testimony offered nothing of substance and would have been
cumulative of the information contained in his written statement. Further,
Garza admitted in his trial testimony that he used cocaine and drank a large
amount of beer on the night of the murder, and the medical examiner testified
that Tackett’s blood contained a metabolite of cocaine but was negative for
alcohol and other drugs. Thus, testimony by Preyor that Tackett and Garza
were “under the influence” also would have been cumulative of other evidence
before the jury. If Preyor had testified that Tackett grabbed his money clip when
he entered her apartment, the district court found that the prosecution would
likely have cross-examined him as to why police found his money clip next to his

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                                       No. 12-70024

vehicle in the apartment complex’s parking lot and why he failed to mention this
detail when he described the events at Tackett’s apartment for police in his
written statement (which does not mention an attempted robbery by Tackett and
Garza).     Such testimony also would have raised the likelihood of cross-
examination about what happened to the money, in the light of the fact that the
money clip police found in the parking lot contained no cash, no cash is visible
in the photographs from Tackett’s apartment, the medical examiner did not find
any cash at the autopsy, and there is no evidence that police officers or evidence
technicians found any cash inside Tackett’s apartment. Thus, any testimony by
Preyor about the alleged theft of his money clip by Tackett would likely have
raised more difficult questions for Preyor than the defense could have hoped to
gain from such testimony.
       Reasonable jurists could not debate the district court’s conclusions that
Preyor’s allegation that counsel refused to allow him to testify is conclusory and
that he failed to establish deficient performance or prejudice with respect to his
claims regarding the presentation of evidence of self-defense, including his
testimony.      Accordingly, we deny Preyor’s requests for a COA for these
interrelated claims.
                3. Presentation of Contradictory Defense Theories
       Preyor contends that trial counsel rendered ineffective assistance by
presenting inconsistent defense theories in his opening statement, in which
counsel suggested that David Pointer, Tackett’s former boyfriend, was the killer
and that Preyor was not present, and in closing argument, in which he claimed
that Preyor killed Tackett in self-defense.5




       5
         It is arguable that this claim was presented in Preyor’s first state habeas application
and is not procedurally defaulted. In any event, reasonable jurists would not debate the
district court’s decision, on de novo review, that it fails on the merits.

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                                  No. 12-70024

      The district court held that the factual premise of this claim is inaccurate
because in his opening statement, trial counsel did not explicitly argue either
that Preyor was not present at the scene on the night of Tackett’s murder or that
David Pointer was the real perpetrator. The district court characterized the
opening statement as pointing an accusatory finger toward Pointer and
theorizing a motive for Pointer to murder Tackett. The district court also found
that Preyor misrepresented the contents of counsel’s closing argument.
      The district court rejected Preyor’s contention that, because Pointer had
an alibi and was a witness for the prosecution, trial counsel’s reference to
Pointer as a possible suspect undermined trial counsel’s credibility. The district
court pointed out that Pointer’s alibi was not air-tight, because his alibi witness
was asleep at the time of the murder. In addition, during cross-examination of
Pointer, defense counsel elicited evidence, consistent with defense counsel’s
opening statement, of Pointer’s obsession with Tackett and his depression
following the demise of their relationship.
      Based upon its review of the entire record, the district court concluded that
there was no inconsistency between trial counsel’s opening statement and
closing argument. In the opening statement, trial counsel attempted to focus the
jury’s attention on the relationship between Tackett and Pointer. In closing
argument, trial counsel argued that Garza, acting under the influence of alcohol
and cocaine, had mistaken Preyor for Pointer and had attacked Preyor without
warning; that the fatal wound to Tackett was delivered without much force, as
Preyor attempted to restrain her and protect himself from Garza’s attack; and
that Preyor did not intentionally cause Tackett’s death as he defended himself.
      Reasonable jurists would not find the district court’s assessment of this
claim debatable or wrong. We therefore deny Preyor’s request for a COA for this
claim.



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                                    No. 12-70024

                               4. Conflict of Interest
      Preyor’s conflict of interest claim is based on an allegation that, during a
recess at the guilt-innocence phase of the trial, Michael Gross, one of the
attorneys who represented him at trial, talked and laughed with the victim’s
stepfather, Charles Dickinson, who was a witness for the prosecution. Preyor
contends that Gross’s contact with Tackett’s stepfather in such a social and
friendly manner during the trial violated his Sixth Amendment right to conflict-
free representation.
      The district court held that this claim was procedurally defaulted and,
alternatively, that it has no merit. The district court pointed out that Preyor
had alleged no specific facts establishing that Gross had any interpersonal
contact with Tackett’s stepfather other than the one occasion described in his
pleadings; he presented no allegations that Gross was involved in a friendship
with any member of Tackett’s family; he presented no allegations or evidence
showing that Gross engaged in any topic of conversation with Dickinson
inappropriate for discussion between a criminal defense counsel and a
prosecution witness; he cited no authority to support the contention that a
criminal defense lawyer is constitutionally prohibited from engaging in
conversation with a relative of his client’s victim; and he did not identify any
action trial counsel could have undertaken to cross-examine Dickinson more
thoroughly or differently or to otherwise elicit any helpful testimony from him.6
The district court held that Preyor’s conclusory assertions that counsel
fraternized, socialized, and laughed with Dickinson, bereft of any facts showing
what they said to each other, failed to establish that Gross operated under a
conflict of interest.



      6
        We note that Preyor’s lead counsel, John Economidy – not Gross – cross-examined
Dickinson.

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                                   No. 12-70024


       For the first time in this court, Preyor presented the unnotarized affidavits
of Margaret Mendez and Nathaniel Johnson, in which they claim they witnessed
the incident and gave that information to Preyor’s current counsel in February
2009 at the state court evidentiary hearing. We do not consider new evidence
presented for the first time on appeal. In any event, the affidavits do not help
Preyor because the affiants do not describe the contents of the conversation
between Gross and Dickinson and offer no new information that would call into
question Gross’s loyalty to Preyor.
       Reasonable jurists would not find the district court’s assessment of this
claim to be debatable or wrong, and we therefore deny Preyor’s request for a
COA.
                                        III.
       In sum, we conclude that reasonable jurists would not debate the district
court’s conclusions regarding any of Preyor’s claims. He offered no evidence –
not even his own affidavit – to support his conclusory allegation that he was
denied his constitutional right to testify.     As the district court noted, his
allegations of ineffective assistance of trial counsel are all either conclusory or
are based on misrepresentations of the record. Furthermore, reasonable jurists
would all agree that Preyor was not prejudiced. His theory of self-defense was
inconsistent with the physical evidence, and his actions in disposing of the knife
and bloody gloves and resisting arrest all are inconsistent with self-defense.
Because Preyor has not made a substantial showing of the denial of a
constitutional right, his application for a COA is
                                                                         DENIED.




                                         25
