     Case: 16-70008    Document: 00513824682     Page: 1   Date Filed: 01/06/2017




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

                                  No. 16-70008                      FILED
                                                              January 6, 2017
                                                               Lyle W. Cayce
ANTHONY SHORE,                                                      Clerk

             Petitioner - Appellant,

v.

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional
Institutions Division,

             Respondent - Appellee.



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


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      Petitioner Anthony Shore seeks a certificate of appealability (COA) from
this court in order to appeal the district court’s denial of his habeas petition.
He asserts the following grounds for relief: (1) Shore was denied his
constitutional right to present mitigation evidence to the jury; (2) Shore’s right
to counsel was violated by trial counsel’s failure to conduct an adequate
mitigation investigation, failure to present evidence of Shore’s brain damage,
and failure to represent Shore during the punishment phase of his trial; and
(3) Shore’s brain injury renders his execution a violation of the Eighth
Amendment prohibition against cruel and unusual punishment.                       Because
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reasonable jurists would not debate the district court’s rejection of these
claims, we DENY Shore’s application for a COA.
                                         I.
      Shore was charged with the capital murder of Maria Del Carmen
Estrada during the course of an aggravated sexual assault. Shore v. Stephens,
No. H-13-1898, 2016 WL 687563, at *3 (S.D. Tex. Feb. 19, 2016).              Shore
voluntarily confessed that he offered the twenty-one-year-old a ride in his car,
used a pair of shears to aid his attempt to rape her, and ultimately strangled
her. Id. at *2. His confession was supported by detailed forensic evidence and
witness testimony. Id. at *3. Defense counsel admitted that Shore killed Ms.
Estrada and that Shore had sexual relations with her against her will, but
argued that Shore should be found guilty of simple murder rather than capital
murder. Id. Shore was convicted of capital murder. Id. at *4.
      In the opening argument of the trial’s punishment phase, Shore’s defense
counsel stated, “Against our advice, against our better judgment, against our
40 years of experience, Anthony has asked on his behalf that we ask you to
answer those [special-issue] questions in such a way that he’s sentenced [to]
death.” Id. Counsel explained, “It is where he is and it is what he thinks
should happen to him based upon how he has lived his life.” Id. Counsel also
stated, “Anthony still believes that despite all of that, despite the fact that he’s
been able to sit in jail now for over a year and not violate the rules of the
institution, it is time for him to sacrifice his life for what he has done.” Id.
      The State provided the jury a recording of Shore’s full confession, which
described additional murders and sexual assaults. Id. at *5. Shore strangled
three women besides Estrada to death. Id. at *2–3. The first was a fourteen-
year-old whom he had sexually assaulted. Id. at *2. The second was a nine-
year-old whom he raped or attempted to rape. Id. at *3. The third was a

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sixteen-year-old whom Shore touched and stripped, but whom he claimed he
did not sexually assault. Id. Shore also raped a fourteen-year-old girl whom
he did not murder, but whom he threatened to kill, along with her family, if
she reported his crime. Id. at *2. Shore stated during his confession that this
rape proved he could “beat the evilness” by raping a woman without killing
her. Id.
      The State supplemented Shore’s confession with extensive evidence and
testimony. The State corroborated Shore’s murders with forensic evidence,
including photographs of his victims’ corpses. Id. at *5. It also called thirty-
five witnesses, including Shore’s sister, daughters, and wife, three of Shore’s
former girlfriends, and the clinical director of a sex offender program in which
Shore had participated for five years. Id. Shore’s sister testified that he
stabbed a kitten to death when he was four or five, that he pushed a
screwdriver through his sister’s head when they were children, and that he
used his sister to get girls in the neighborhood to come out of their houses so
he could grope and try to kiss them. Id. Shore’s daughters testified about
being abused, drugged, and molested by Shore. Id. His wife and former
girlfriends testified that he drugged and raped them, choked them while
having sex, used drugs, and kept pornography of young girls. Id. The clinical
director of Shore’s sex offender program testified that he had superior
intellectual and abstract reasoning abilities; was grandiose, opportunistic,
manipulative, and narcissistic; understood what was socially acceptable but
had sexual deviations and would break a law if he thought he could get away
with it; and scored high on a measure of psychopathy. Id.
      After the State had presented its case, Shore’s counsel told the trial court
that additional discussion had not changed Shore’s mind about requesting the
jury to give him the death penalty. Id. at *6. Counsel expressly stated that

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Shore “made it quite clear . . . that he doesn’t want [his attorneys] to in any
way argue to the contrary” and that this was the reason counsel was waiving
a closing argument.       Id.   The trial court asked Shore if his counsel had
accurately represented his instructions, and Shore replied, “That is very
accurate.” The jury sentenced Shore to death. Id. at *6.
      Shore sought direct and collateral relief in state court. 1 The Texas Court
of Criminal Appeals affirmed his conviction on direct appeal. Shore v. State,
No. AP-75049, 2007 WL 4375939, at *1 (Tex. Crim. App. Dec. 12, 2007) (not
designated for publication). Shore’s state habeas petition raised numerous
points of error, including constitutional claims based on the trial court’s failure
to inquire on the record whether Shore’s decision to waive the presentation of
mitigating evidence was competent, knowing, and voluntary; the trial court’s
failure to inquire on the record whether there had been any investigation for
mitigating evidence and what the results of any such investigation were;
counsel’s decision to sit silent during the punishment phase of the trial; and
counsel’s failure to object to various pieces of evidence. The state trial court
rejected these arguments and denied Shore’s habeas petition, adopting the
State’s proposed findings of fact and conclusions of law without an evidentiary
hearing. Ex Parte Shore, No. WR-78133-01, 2013 WL 173017, at *1 (Tex. Crim.
App. Jan. 16, 2013) (not designated for publication).            The Texas Court of
Criminal Appeals also rejected Shore’s habeas petition, adopting the trial
court’s findings and conclusions. Id.
      Shore then filed a federal habeas petition supported by seven new
exhibits. The district court denied Shore relief on his habeas petition and



      1 Shore’s trial counsel moved to withdraw. The trial court appointed a new attorney
to represent Shore on direct appeal and then appointed a different attorney to represent
Shore on state habeas review. See Shore, 2016 WL 687563, at *6.
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declined to issue a COA. Shore, 2016 WL 687563, at *20. The district court
rejected Shore’s claim that the trial court failed to obtain a valid waiver of his
right to challenge the State’s punishment case. It reasoned that no Supreme
Court precedent required trial courts to obtain a knowing waiver on the record
and that Shore had provided no basis for challenging the state courts’ finding
of a valid waiver, which was supported by the record. Id. at *8–10. The district
court rejected Shore’s Strickland claims regarding trial counsel’s failure to
conduct a reasonable investigation into mitigating evidence, failure to present
evidence of organic brain damage, and failure to contest the State’s
punishment case because Shore’s waiver barred these claims. It reasoned that
these claims relied on evidence barred by Pinholster and that, even with the
benefit of his newly-proffered evidence, Shore could not show that counsel was
deficient or that counsel’s alleged deficiencies prejudiced his defense. Id. at
*10–18. Finally, the district court rejected Shore’s claim that his brain damage
made his execution unconstitutional under the Eighth and Fourteenth
Amendments. It reasoned that this claim was unexhausted and therefore not
properly before the court and that this claim sought to create and apply a new
rule of constitutional law in violation of Teague. Id. at *19. Shore applied to
this court for a COA in order to appeal the denial of his federal habeas petition.
After thorough review of the briefing and careful consideration of the positions
taken at oral argument, we conclude that Shore’s application must be denied.
                                       II.
      Section 2254 of the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254, governs this court’s consideration of Shore’s
request for a COA. Under AEDPA, a state habeas petitioner must obtain a
COA before he can appeal the federal district court’s denial of habeas relief. 28
U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This is a showing that
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003).   To obtain a COA after a district court has denied relief on
procedural grounds, a petitioner must show both a debatable claim on the
merits and that the district court’s procedural ruling is debatable. See id. at
349. “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims. In fact, the statute forbids it.”
Id. at 336.
      The court evaluates the debatability of Shore’s constitutional claims
through the lens of AEDPA’s highly deferential standard, which “demands that
state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.
766, 773 (2010).     A federal court may not grant habeas relief unless the
petitioner has first exhausted state remedies with respect to the claim at issue.
28 U.S.C. § 2254(b). A habeas petitioner must prove that the state court’s
constitutional adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
or “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding,” 28
U.S.C. § 2254(d)(2).    Clearly established federal law is comprised of “the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,
412 (2000). A state-court decision is contrary to clearly established federal law
if it “identifies the correct governing legal rule from [the Supreme Court’s]
cases but unreasonably applies it to the facts of the particular state prisoner’s
case” or “extends a legal principle from [Supreme Court] precedent to a new

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context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. at 407, 413.
      When ruling on a petition for a writ of habeas corpus, the federal district
court must defer to the factual findings of state trial and habeas courts. Moody
v. Quarterman, 476 F.3d 260, 267–68 (5th Cir. 2007); Young v. Dretke, 356
F.3d 616, 629 (5th Cir. 2004). Federal courts are limited to the record before
the state courts. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The district
court reviews “only the ultimate legal determination by the state court—not
every link in its reasoning.” Trottie v. Stephens, 720 F.3d 231, 241 (5th Cir.
2013) (citing Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc);
Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)). Where a state court
habeas decision is unaccompanied by explanation, “a federal court must
‘determine what arguments or theories . . . could have supported the state
court’s decision,’ and then ask ‘whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in
a prior decision’ of the Supreme Court.” Williams v. Thaler, 684 F.3d 597, 603
(5th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 88 (2011)).
                                      III.
      Shore is not entitled to a COA on his claim that he was denied his
constitutional right to present mitigation evidence to the jury under Lockett v.
Ohio, 438 U.S. 586 (1978). The Supreme Court held in Lockett that the Eighth
and Fourteenth Amendments require individualized consideration of
mitigating factors. Id. at 604–08. However, Shore waived the right to present
mitigation evidence by instructing trial counsel not to argue against the death
penalty. Shore argues that this waiver was invalid because it was not reflected
on the record and because he could not have knowingly waived the right to


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present evidence of brain damage when he was not aware of that evidence. 2
This argument is barred by Teague and is not adequately supported by the
evidence.
       The Supreme Court’s decision in Teague bars federal courts from
applying new constitutional rules to upset state convictions on collateral
review. Teague v. Lane, 89 U.S. 288, 310 (1989); see also 28 U.S.C. § 2254(d)(1).
Shore’s argument depends on a proposed rule of constitutional law requiring
that a waiver of the right to present mitigation evidence be made knowingly
and on the record. The district court correctly observed that the Supreme
Court has never imposed such a requirement. Shore, 2016 WL 687563, at *10
(quoting Schriro v. Landrigan, 550 U.S. 465, 479 (2007)). It is undebatable
among jurists of reason that to create such a new requirement and impose it
here would violate Teague. Therefore, Shore is not entitled to a COA on his
Lockett claim.
       Even if Shore’s argument were not barred by Teague, reasonable jurists
would not debate that Shore has failed to present evidence sufficient to
overcome the presumption of correctness afforded to the state habeas courts’
implicit finding that the record shows a knowing, intelligent, and voluntary
waiver. See 28 U.S.C. § 2254(e)(1); Dretke, 356 F.3d at 629. In the face of this
presumption of correctness, Shore argues that his waiver was not knowing as
to subsequently discovered evidence of brain damage, relying on two reports to
show that a subsequent discovery of evidence occurred. Setting aside any
questions about the strength of this evidence, Shore’s reports are not properly
presented for our consideration on habeas review because they were not



       2Shore’s briefing expressly states that his competence is not at issue and that he is
not claiming that he is intellectually disabled. At oral argument, Shore’s counsel again
conceded Shore’s intelligence and affirmed that Shore’s competence is not at issue.
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presented in state court. See Pinholster, 563 U.S. at 182; see also 28 U.S.C.
§ 2254(d)(2). Thus, the evidence Shore cites would be insufficient to displace
the state courts’ finding of a valid waiver even if his Lockett claim were not
barred by Teague. For this reason also, Shore is not entitled to the relief he
seeks under Lockett.
                                       IV.
      Shore is also not entitled to a COA on his claims under Strickland v.
Washington, 466 U.S. 668 (1984). Shore argues that his trial counsel was
constitutionally deficient for failing to conduct an adequate mitigation
investigation, to present evidence of Shore’s brain damage, and to represent
Shore during the punishment phase of the trial.               These arguments are
foreclosed both by Shore’s instructions to his counsel and by the fact that they
are based on new evidence and legal theories.
      A defendant cannot raise a Strickland claim based on counsel’s
compliance with his instructions. See United States v. Masat, 896 F.2d 88, 92
(5th Cir. 1990) (“[A defendant cannot] avoid conviction on the ground that his
lawyer did exactly what he asked him to do.”); Autry v. McKaskle, 727 F.2d
358, 361 (5th Cir. 1984) (“By no measure can [a defendant] block his lawyer’s
efforts and later claim the resulting performance was constitutionally
deficient.”). If a defendant instructs his attorney not to present mitigation
evidence, the failure to present this evidence does not give rise to a Strickland
claim. Sonnier v. Quarterman, 476 F.3d 349, 362 (5th Cir. 2007). Such an
instruction also bars the defendant from raising a Strickland claim based on
failure to investigate mitigation evidence. Landrigan, 550 U.S. at 475–76. In
light of Shore’s confirmation that he instructed counsel not to argue against
the death penalty, the state habeas courts acted reasonably in rejecting Shore’s
claim, and the district court correctly affirmed.

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      Shore’s Strickland claims also violate the rule prohibiting federal habeas
courts from considering evidence that was not presented in state court. See
Pinholster, 563 U.S. at 182; see also 28 U.S.C. § 2254(b). Shore argues that two
of his Strickland claims are unexhausted and that Pinholster does not bar
consideration of new evidence in connection with unexhausted claims. 3
Assuming arguendo that this is correct, Shore’s new evidence is admissible
only if he can show that his unexhausted claims are properly before this court.
To do so, he invokes Trevino v. Thaler, 133 S. Ct. 1911 (2013) and Martinez v.
Ryan, 132 S. Ct. 1309 (2012). However, Shore’s invocation of Trevino and
Martinez is unavailing for two reasons. First, the argument is abandoned
because it was not raised in Shore’s initial brief on appeal.               See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Second, the briefing provides no
factual basis for an allegation that habeas counsel was deficient. See Martinez,
132 S. Ct. at 1318.       Because Shore cannot effectively invoke Trevino and
Martinez, his unexhausted Strickland claims are not properly before this court.
His remaining Strickland claims are subject to Pinholster. Therefore, the new
evidence on which Shore seeks to rely is not properly before this court. Shore
is not entitled to a COA on his Strickland claims.
                                            V.
      Finally, Shore is not entitled to a COA on his Eighth Amendment claim
that his execution would be cruel and unusual in light of his brain injury. The
district court correctly found that this claim is procedurally barred because it




      3  The parties agree that Shore has not exhausted his claim that counsel should have
investigated mitigation evidence other than evidence of brain damage. Shore argues that he
also has not exhausted his claim that counsel failed to represent him during the punishment
phase because his new evidence makes the argument fundamentally different from the one
presented to the state habeas courts.
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was not raised on state habeas review. 4 Shore, 2016 WL 687563, at *19; see
also Duncan v. Henry, 513 U.S. 364, 365–66 (1995); Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991); Nobles v. Johnson, 127 F.3d 409, 419–20 (5th Cir.
1997). It is also barred by Teague because it does not rely on the holding of
any Supreme Court precedent but instead seeks to extend the reasoning of
Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 551
(2005). Finally, this argument is foreclosed by the numerous Fifth Circuit
precedents rejecting the proposition that the Eighth Amendment prohibits
execution of those who have brain problems but are not intellectually disabled,
as Shore’s counsel acknowledged at oral argument. See Mays v. Stephens, 757
F.3d 211, 219 (5th Cir. 2014), cert. denied, 135 S. Ct. 951 (2015); ShisInday v.
Quarterman, 511 F.3d 514, 521 (5th Cir. 2007); In re Neville, 440 F.3d 220, 221
(5th Cir. 2006).
                                           VI.
       For the reasons stated above, we conclude that the district court’s denial
of Shore’s habeas petition would not be debatable among jurists of reason.
Accordingly, we DENY Shore’s application for a COA.




      4  Shore argues that the miscarriage of justice exception to the procedural bar on
unexhausted claims applies here. This exception requires a petitioner to show that he has a
colorable claim of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Because
Shore has not made this showing, the exception does not apply.
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