                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  November 10, 2004
                      _____________________
                                                          Charles R. Fulbruge III
                              No. 03-41626                        Clerk
                         _____________________

                           BRYAN ERIC WOLFE,

                        Petitioner - Appellant,

                                versus

                           DOUG DRETKE,
         Director, Texas Department of Criminal Justice,
               Correctional Institutions Division,

                      Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                District Court Cause No. 98-CV-210
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     Petitioner Bryan Eric Wolfe was convicted of capital murder

in Texas state court and sentenced to death.      After exhausting

his state remedies, Wolfe applied for federal habeas relief.          The

district court denied Wolfe’s application for a writ of habeas

corpus, but it granted Wolfe a certificate of appealability (COA)

for his ineffective assistance of counsel claim.      As part of this

appeal, Wolfe asks this court for a COA on an additional issue:


     1
      Pursuant to 5TH CIRCUIT RULE 47.5.4, this court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                   1
whether his ineffective assistance claim falls within the

presumed prejudice exception.   After considering these issues on

appeal, this court denies Wolfe’s request for a COA and affirms

the judgment of the district court.

                  Background of Wolfe’s Appeal

     The Texas Court of Criminal Appeals summarized the evidence

presented during trial in its opinion on direct appeal:

     The body of 84 year old Bertha Lemell was found on the
     floor of her home, along with a change purse and some
     scattered coins. A number of black-eyed peas were also
     strewn on the floor. According to the testimony of a
     medical examiner, the victim had twenty-six stab wounds
     to the head, trunk, and abdomen. Blood found at the
     crime scene was subjected to serology and DNA tests. A
     serologist testified that the physical characteristics
     found in [Wolfe’s] blood matched blood found at the
     crime scene and that those characteristics occurred in
     only 0.2 percent of the African-American population.
     [Wolfe is African-American.] The DNA test results
     showed that [Wolfe’s] blood and the blood found at the
     crime scene shared a DNA pattern that was estimated to
     appear in approximately 1 in 10 million Caucasians, in
     approximately 1 in 1.7 million African-Americans, and
     in approximately 1 in 8.2 million Hispanics. Testimony
     at trial showed that Lemell was a close friend of
     [Wolfe’s] wife, that [Wolfe] lived in the same
     neighborhood, and that he was seen within a few blocks
     of the crime scene shortly before and shortly after the
     murder. The residence showed no sign of forced entry.
     The evidence also showed that [Wolfe] had a cut on his
     fingers shortly after the murder.

     ....Testimony showed that Lemell routinely kept money
     in a coin purse. She also kept black-eyed peas in her
     purse for good luck. Brenda Vallian, a friend of the
     victim, testified that she took Lemell shopping on the
     day of the offense and that she saw Lemell pull out
     sixty dollars in cash, pay for groceries with less than
     twenty dollars, and put the remaining money back into
     her coin purse. After the murder, police officers
     arriving at the scene found the coin purse on the


                                 2
     floor, unlatched, and containing only a single coin.2

Because no one witnessed the crime, the State obtained Wolfe’s

conviction based on DNA analysis of the blood collected at the

crime scene.

     During the sentencing portion of Wolfe’s trial, the

prosecutor presented evidence that: Wolfe confessed to committing

armed robbery in 1983; Wolfe was convicted for committing another

robbery in 1989; after serving time in prison for the robbery,

Wolfe was paroled on work release; and Wolfe absconded from the

work release center.   In defense, Wolfe’s trial attorney, Harold

Laine, presented evidence from a psychologist who opined that

Wolfe would not be dangerous in an institutional setting and

attributed Wolfe’s actions to intoxication.       Laine also called a

correctional officer who testified that Wolfe had been assaulted

while in custody awaiting trial.       After considering this

evidence, the jury determined that a probability existed that

Wolfe would commit criminal acts of violence that would

constitute a continuing threat to society, and insufficient

mitigating circumstances existed to warrant a sentence of life

imprisonment rather than death.3       Accordingly, the state trial

court entered a judgment sentencing Wolfe to death.       The Texas

     2
      Wolfe v. State, 917 S.W.2d 270, 274-75 (Tex. Crim. App.
1996).
     3
      See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2 (Vernon Supp.
2004) (instructing court on questions to be submitted to jury
during punishment phase of capital case).

                                   3
Court of Criminal Appeals affirmed that judgment on direct

appeal.

     Wolfe then moved for habeas relief in state court.     As part

of his state habeas proceeding, Wolfe argued that Laine was

ineffective because he failed to prepare for trial.   In

particular, Wolfe complained that Laine did not prepare to

challenge the State’s DNA evidence.   Wolfe contended that Laine’s

failures substantially impaired his defense and should be

considered the only reason he received the death penalty.     The

state habeas judge, who was also the trial judge, however,

determined that Laine’s performance was not deficient.     After

reviewing the record and the habeas judge’s findings, the Texas

Court of Criminal Appeals denied Wolfe’s application for habeas

relief.

     Wolfe then applied for federal habeas relief on various

grounds to include ineffective assistance of counsel.    The United

States Magistrate Judge presided over pretrial proceedings.

Initially, the magistrate judge granted Wolfe’s request for

discovery concerning biological evidence and DNA testing

conducted prior to trial.   The magistrate judge also authorized

funding for DNA testing and an evidentiary hearing.   Later,

however, the magistrate judge stayed further proceedings so Wolfe

could take advantage of a newly-enacted state DNA testing

statute.   The results of further testing did not favor Wolfe.

The magistrate judge then proceeded to consider Wolfe’s

                                 4
application for habeas relief and issued a report that

recommended denying Wolfe’s application.    Because Wolfe objected

to the report, the district court conducted a de novo review.

After its review, the district court denied Wolfe’s application.

     In regard to Wolfe’s ineffective assistance of counsel

claim, the district court found that Wolfe had not shown he was

prejudiced by his attorney’s failure to better prepare himself

for challenging the State’s DNA evidence.    Although not

explicitly stated, the district court implicitly determined that

the state court’s disposition of the claim was not an

unreasonable application of clearly established federal law.

After denying Wolfe’s application, the district court granted

Wolfe a COA for his ineffective assistance claim, but denied his

request for a COA for the presumed prejudice issue.    In this

appeal, Wolfe asks this court for a COA on the latter claim.

This court first considers that request.

                  Standard for Obtaining a COA

     To obtain a COA, Wolfe must make “a substantial showing of

the denial of a constitutional right.”4    To make this showing,

Wolfe must demonstrate that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues


     4
      28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 123 S.
Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483
(2000).

                                5
presented were adequate to deserve encouragement to proceed

further.”5     Because the district court denied relief on the

merits, rather than on procedural grounds, Wolfe “must

demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.”6

     In determining whether to grant a COA, this court’s

examination is limited “to a threshold inquiry into the

underlying merit of [Wolfe’s] claim[].”7      “This threshold inquiry

does not require full consideration of the factual or legal bases

adduced in support of the claims.”8      Instead, this court’s

determination is based on “an overview of the claims in the

habeas petition and a general assessment of their merits.”9        “Any

doubt regarding whether to grant a COA is resolved in favor of

the petitioner, and the severity of the penalty may be considered

in making this determination.”10

                  Wolfe’s Presumed Prejudice Argument



     5
        Miller-El, 123 S. Ct. at 1039 (quoting Slack, 529 U.S. at
484).
     6
        Slack, 529 U.S. at 484.
     7
        Miller-El, 123 S. Ct. at 1034.
     8
        Id. at 1039.
     9
        Id.
     10
          Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003).

                                   6
     In his federal habeas proceeding, Wolfe maintained that

Laine’s pretrial and trial failures rendered his criminal

proceeding non-adversarial.       Based on this characterization,

Wolfe asked the district court to presume prejudice in assessing

Laine’s performance.        Although Wolfe relied on the standards set

out in Strickland v. Washington11 in making his ineffective

assistance claim, the district court considered the applicability

of the United States Supreme Court’s decision in United States v.

Cronic,12 but determined it did not apply.       On appeal, Wolfe

relies on Cronic.

     In Cronic, the Supreme Court stated that, in order to

prevail on an ineffective assistance of counsel claim, a criminal

defendant must ordinarily prove that the results of his criminal

proceeding would have been different absent his attorney’s

deficiencies.13     The Court explained, however, that if an

attorney entirely fails to subject the prosecution’s case to

meaningful adversarial testing, a denial of the Sixth Amendment

right to counsel occurs, making the adversary process itself

presumptively unreliable.14       In that circumstance, a court

presumes the defendant was prejudiced by his attorney’s


     11
          Strickland v. Washington, 466 U.S. 668 (1984).
     12
          United States v. Cronic, 466 U.S. 648, 659 (1984).
     13
          See Cronic, 466 U.S. at 658.
     14
          See id. at 659.

                                      7
deficiencies.     But in order for a court to presume prejudice, an

attorney’s failure must be complete.15     Failures “of the same ilk

as other specific attorney errors”16 remain subject to

“Strickland’s performance and prejudice components.”17

     In considering the applicability of Cronic, the district

court determined that the “aspects of counsel’s performance

challenged by Wolfe (failure to adequately prepare for cross-

examination, failure to present mitigating evidence, etc.) are of

the same ilk as other specific attorney errors held subject to

Strickland’s performance and prejudice components.”     Accordingly,

the district court applied Strickland rather than Cronic, and

required Wolfe to prove prejudice.

     Although the district court considered Wolfe’s presumed-

prejudice argument, Wolfe failed to exhaust this argument in

state court.     To obtain federal habeas corpus relief, a

petitioner must first exhaust all claims in state court prior to

requesting federal collateral relief.18

     Whether a federal habeas petitioner has exhausted state
     remedies is a question of law. To exhaust, a petitioner
     must have fairly presented the substance of his claim
     to the state courts. It is not enough that all the


     15
          See Bell v. Cone, 535 U.S. 685, 697 (2002).
     16
          Bell, 535 U.S. at 697.
     17
          Id. at 697-98.
     18
      See 28 U.S.C. § 2254(b)(1); Wilder v. Cockrell, 274 F.3d
255, 259 (5th Cir. 2001).

                                   8
     facts necessary to support the federal claim were
     before the state courts or that a somewhat similar
     state-law claim was made. Indeed, where petitioner
     advances in federal court an argument based on a legal
     theory distinct from that relied upon in the state
     court, he fails to satisfy the exhaustion
     requirement.19

To apply these principles to the instant appeal, this court must

ask whether Wolfe fairly presented the substance of his presumed-

prejudice argument in state court.

     Rather than ask the state court to presume prejudice, Wolfe

argued that he had been actually prejudiced.   In his first

petition, Laine complained that his attorney’s conduct

substantially impaired his defense and that his attorney’s

failures should be considered the only reason he received the

death penalty.   In his amended petition, Wolfe complained that he

would not have been assessed the death penalty if his attorney

had prepared for the State’s punishment evidence.   Neither

petition argued that Laine’s pretrial and trial failures rendered

his criminal proceeding non-adversarial, asked the state court to

presume prejudice from Laine’s purported failures, or relied on

Cronic.   Consequently, Wolfe did not present the substance of his

presumed-prejudice issue in state court.    As a result, Wolfe did

not exhaust this argument in state court.   Because he did not

exhaust this argument in state court, Wolfe is not entitled to



     19
      Wilder, 274 F.3d at 259 (internal quotes and citations
omitted).

                                 9
this court’s consideration of the argument now.

     But even if Wolfe’s state habeas petition could be construed

to advance the argument, Wolfe would not be entitled to the

presumption set out in Cronic because he complains about failures

of the same ilk as the specific attorney failures complained

about in Strickland.20     In Strickland, the petitioner complained

that his attorney failed to ask for a continuance to prepare for

sentencing, to request a psychiatric examination, to investigate

and present character witnesses, to seek a presentence

investigation report, to present meaningful argument to the

sentencing judge, and to investigate the medical examiner’s

report or cross-examine the medical experts.21

     In district court, Wolfe complained that:

     - Laine did not hire medical or scientific experts to
     challenge the State’s DNA evidence or the State’s
     theory about how Wolfe received cuts to his hands,

     - Laine’s cross-examination of the State’s medical and
     DNA experts was inadequate and ineffective,

     - Laine did not use any treatises or accepted reference
     materials in cross-examining the DNA experts,

     - Laine failed to ask for funds for a defense DNA
     expert until after jury selection,

     - Laine failed to call defense witnesses during the
     guilt/innocence phase of trial, and

     - Laine failed to present mitigation evidence which


     20
          See Bell, 535 U.S. at 697-98.
     21
          See Strickland, 466 U.S. at 676.

                                   10
     would have prevented the findings necessary for the
     death penalty.

These complaints are specific errors of the same type complained

about in Strickland.     They do not reflect a total failure.       As a

result, Strickland, not Cronic, applies to Wolfe’s ineffective

assistance claim.     Reasonable jurists would not debate the

applicability of Strickland.        Thus, the district court’s

assessment of the applicability of Strickland is correct.

     The court DENIES Wolfe’s request for a COA.       Having resolved

this issue, the court now considers Wolfe’s ineffective

assistance of counsel claim.

     Standard for Reviewing an Ineffective Assistance Claim

     In a habeas corpus appeal, this court reviews the district

court’s findings of fact for clear error and its conclusions of

law de novo, applying the same standards to the state court’s

decision as did the district court.22       This court may not grant

relief on a claim a state court has adjudicated on the merits

“unless the adjudication of the claim . . . 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.”23       “A state court's

decision is deemed ‘contrary to’ clearly established federal law



     22
          See Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004).
     23
          28 U.S.C. § 2254(d)(1).

                                     11
if it relies on legal rules that directly conflict with prior

holdings of the Supreme Court or if it reaches a different

conclusion than the Supreme Court on materially indistinguishable

facts.”24     “A state court's decision constitutes an unreasonable

application of clearly established federal law if it is

objectively unreasonable.”25     This court presumes the state court

findings of fact are correct, and the petitioner has the burden

of rebutting the presumption of correctness by clear and

convincing evidence.26

                  Wolfe’s Ineffective Assistance Claim

     Wolfe’s argument on appeal is multifarious—complaining about

Laine’s lack of contact with him, the failure to take statements

from witnesses, the failure to obtain a plea bargain agreement,

and the failure to call defense witnesses—but Wolfe’s argument

focuses on Laine’s purported failure to prepare for challenging

the State’s DNA evidence.     Indeed, the thrust of his claim has

always been that his attorney failed to prepare to challenge the

State’s DNA evidence.27     Wolfe, however, expanded his arguments

     24
      Busby, 359 F.3d at 713 (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)).
     25
          Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir. 2003).
     26
          See 28 U.S.C. § 2254(e)(1).
     27
      In his first petition for state habeas relief, Wolfe
complained his attorney: failed to hire medical or scientific
experts, inadequately cross-examined the State’s experts, failed
to challenge the State’s evidence that cuts to his hands were
caused by a knife, failed to hire an expert to opine that the

                                   12
through various pleadings after he obtained additional discovery

during his federal habeas proceeding.28

     Prior to his federal habeas proceeding, Wolfe was unable to

depose Laine.   During Wolfe’s state habeas proceeding, the only

evidence of Laine’s performance was Laine’s affidavit and the

state habeas’s judge personal observations of Laine during trial.



cuts resulted from a broken beer bottle, and was unprepared to
address the State’s punishment evidence.
     In his amended petition, Wolfe complained his attorney: did
not use any treatises or accepted reference materials in cross-
examining DNA experts, did not ask for funds for a DNA expert
until after jury selection, failed to call witnesses during the
guilt-innocence phase of trial, and failed to present mitigating
evidence which would have prevented the findings necessary for
the death penalty.
     28
      For example, in his motion for an evidentiary hearing,
Wolfe complained that Laine had not met with him for 18 months
before trial, and asserted that he may have considered entering a
guilty plea to lesser sentence or a lesser charge had he been
offered a plea bargain agreement and had the evidence been
explained to him. Wolfe also complained that Laine did not
cross-examine the State’s DNA witnesses about the possibility of
contamination.
     In his response to the respondent’s motion to reconsider an
order granting his requests for discovery and a stay, Wolfe
asserted that Laine did not have a sufficient grasp of the DNA
evidence to adequately cross-examine the State’s witnesses
because the materials he received were insufficient for review.
     Through a notice of filing of an affidavit, Wolfe asserted
that Laine was deficient for failing to use Wolfe’s wife as a
punishment witness, and that his wife would have testified that
Wolfe was a good husband and father.
     In response to the respondent’s motion for summary judgment,
Wolfe complained that Laine failed to promptly investigate his
case.
     In his objections to the memorandum and recommendation of
the United States Magistrate Judge, Wolfe argued that the
district court should presume prejudice in considering his claim,
and complained that Laine did not know about the State’s
punishment evidence of extraneous bad acts.

                                13
In his affidavit, Laine described his preparation for trial.

With the benefit of Laine’s deposition and additional discovery,

Wolfe now maintains that the state habeas court’s determination

of his ineffective assistance claim was an unreasonable

application of federal law to the facts of his case because it

was based on Laine’s fraudulent affidavit.

     In his affidavit, Laine attested that he reviewed articles,

treatises, and cases; spoke with attorneys who had trial

experience with DNA; consulted with a DNA expert; and requested

the State’s DNA materials.   Wolfe, however, contends Laine had no

ability to understand DNA evidence or to cross-examine the

State’s DNA witnesses.   To support this argument, Wolfe relies on

an affidavit by a DNA expert he retained during his federal

habeas proceeding who attested that the DNA expert Laine hired

for trial could not have provided an accurate assessment of the

State’s DNA evidence because the expert did not have the

autorads29 from the State’s DNA analysis.

     To establish ineffective assistance of counsel, a criminal

defendant must show that his attorney’s assistance was deficient




     29
      Wolfe’s expert explained, “[t]he autorads are X ray films
that contain the work product of the . . . DNA analysis. . . .
Autorads are to a DNA analysis what an X ray film is to a
potential broken bone analysis. A scientist can no more render a
second opinion regarding this DNA analysis without the autorads
than a doctor could render a second opinion about an orthopedic
problem without examining the patient X rays.”

                                14
and that the deficiency prejudiced him.30     “To establish

deficient performance, a petitioner must demonstrate that

counsel's representation ‘fell below an objective standard of

reasonableness.’”31     “An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the

judgment.”32     Thus, a defendant must prove prejudice to succeed

on a claim of ineffective assistance of counsel.33

     When a defendant challenges a death sentence such as
     the one at issue in this case, the question is whether
     there is a reasonable probability that, absent the
     errors, the sentencer—including an appellate court, to
     the extent it independently reweighs the evidence—would
     have concluded that the balance of aggravating and
     mitigating circumstances did not warrant death.34

A court considering an ineffective assistance claim is not

required to determine whether counsel’s performance was deficient

before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies.35     “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of


     30
      See Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.),
cert. denied, 124 S. Ct. 430 (2003).
     31
      See Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)(quoting
Strickland).
     32
          Strickland, 466 U.S. at 691.
     33
          Id. at 693.
     34
          Id. at 695.
     35
          Id. at 697.

                                   15
sufficient prejudice,” a reviewing court may take that course.36

The district court followed that approach.

     Although Wolfe maintains the district court erred because it

simply deferred to the state court’s disposition of his claim,

the district court applied well-established principles for an

ineffective assistance of counsel claim.     Rather than evaluate

whether each alleged attorney failure constituted deficient

performance, the district court considered whether Wolfe proved

prejudice.     For each complaint, the district court found that

Wolfe had not established prejudice.

     As for Wolfe’s complaint about Laine’s failure to adequately

prepare for challenging the State’s DNA evidence, the district

court found that Wolfe failed to show that better preparation

would have either uncovered exculpatory evidence or weakened the

evidence against him, and concluded that Wolfe failed to show he

was prejudiced by the purported lack of preparation.     The record

supports this determination.

     Wolfe presented an affidavit from a DNA expert he retained

during his federal habeas proceeding, but the information in the

affidavit only challenges the work done by Wolfe’s trial DNA

expert.     In particular, the affiant explained that the expert

hired during trial could not have properly assessed the FBI’s DNA

work because he did not have the autorads which form the


     36
          Id. at 697.

                                  16
scientific basis for DNA analysis.    The expert opined that

Wolfe’s trial counsel was unprepared to either understand or

confront the DNA evidence in any meaningful way.    Despite this

characterization, Wolfe did not show that better preparation, or

testimony by a defense DNA expert, would have changed the jury’s

verdict.

     Although the thrust of his ineffective assistance claim

applies to guilt/innocence, Wolfe seeks a new sentencing trial.

Wolfe maintains the prejudice he suffered as a result of Laine’s

failures is that he received the death penalty.    Wolfe

characterizes Laine as the sole reason he received the death

penalty, but Laine’s being better prepared for the State’s DNA

evidence would not have changed this result.    Without evidence

showing that the results of the FBI’s DNA testing was unreliable,

or that the DNA evidence presented at trial was inaccurate, Wolfe

cannot show prejudice.37   The results of subsequent DNA testing

show that further investigation and further preparation would

have produced nothing that would have changed the jury’s verdict.

Even if Laine had been better prepared, no reasonable probability

     37
      Compare House v. Bell, 311 F.3d 767 (6th Cir. 2002)
(certifying questions to the Supreme Court of Tennessee about
eligibility for death penalty where post-trial DNA evidence
showed semen introduced at defendant’s trial to prove his sexual
assault was not defendant’s semen), with Satcher v. Pruett, 126
F.3d 561 (4th Cir. 1997) (finding that new DNA evidence showing
at most that earlier tests were inconclusive, but not that
someone other than defendant was source of DNA sample taken from
crime scene, did not sufficiently establish actual innocence to
allow for consideration of procedurally defaulted claims).

                                 17
exists that the results of Wolfe’s criminal proceeding would have

been any different.

     The district court also applied well-established principles

to Wolfe’s complaint that Laine failed to negotiate a plea

bargain agreement.    Specifically, the district court concluded

that Wolfe could not prove prejudice because he did not establish

that the State would have offered a plea bargain even if Laine

had pursued one.   In his affidavit, Laine stated that he sought

out a plea bargain agreement even though Wolfe insisted that he

would not plead guilty to any charge.    Laine explained that,

despite Wolfe’s declaration, he attempted to obtain a plea

bargain for aggravated robbery, murder or capital murder without

the death sentence, but was told “no.”    The district court

treated this assertion as a state-court finding of fact that

could only be rebutted with clear and convincing evidence.

     Although Wolfe maintains that Laine’s deposition proves

Laine’s affidavit is “a half-truth or outright lie,” the

deposition does not support this characterization.    The jail

visitor records Wolfe relies upon place Laine’s statements about

his contact with Wolfe into question, but Laine offered a

plausible explanation during his deposition about why the records

do not reflect his visits.38   The record indicates Laine did not

     38
      Laine explained that during the time Wolfe awaited trial,
he represented many criminal defendants and frequently visited
the jail to see his clients. Laine explained that although he
signed the visitor log to see a particular inmate, he often saw

                                 18
want to represent Wolfe and had little time to prepare for trial,

but the record also indicates Laine hired an investigator to

explore the circumstances of the criminal allegations, attempted

to obtain a plea bargain agreement, presented Wolfe’s explanation

for the cuts on his hands, challenged the State’s witnesses, and

attempted to obtain mitigation witnesses.   Wolfe presented

statistics indicating the State offered plea bargains to other

capital murder defendants,39 but the statistics do not rebut

Laine’s assertion that the prosecutor told him that the State

would not offer Wolfe a plea bargain by clear and convincing

evidence.   In addition, nothing indicates that the prosecutor

would have offered Wolfe a plea bargain for a life sentence had

Laine been better prepared to challenge the State’s DNA evidence.

Because Wolfe did not rebut the state court’s finding that the

State would not have offered Wolfe a plea bargain, the district



other inmates while he was at the jail.
     39
      Wolfe asserts that the statistics show that the State
offered a plea bargain to every other capital murder defendant,
except those defendants who killed law enforcement officers or
who committed multiple murders involving children. The
statistics, however, do not reflect enough details to reach that
conclusion. The statistics reflect: the defendant’s name, age,
race, file date, indictment number, indictment date, offense,
disposition date, disposition, and sentence.
     Wolfe also contends he proved he would have considered a
plea bargain agreement. For this assertion, Wolfe relies on a
letter he wrote to his habeas attorney. In that letter, Wolfe
did not state that he would have considered a plea bargain.
Instead, he complained that Laine did not obtain a plea bargain
agreement and that Laine waited until the day before trial to
discuss a plea agreement.

                                19
court’s conclusion that Wolfe did not show prejudice is correct.

     The district court applied the well-established principles

for considering ineffective assistance to Wolfe’s complaint that

Laine was ineffective because he did not call Wolfe’s wife as a

mitigation witness during the punishment phase of trial.     The

district court concluded that Wolfe did not establish that the

jury would have sentenced Wolfe to life in prison had his wife

testified during the punishment phase of trial.     Although Wolfe

presented his wife’s affidavit wherein she attested that Wolfe

was a good father and husband, Wolfe never presented the

affidavit to the state habeas court.

     When a federal habeas petitioner presents “material

additional evidentiary support” to the federal court that was not

presented to the state court, the petitioner fails to exhaust his

state remedies.40     This court does not consider new factual

allegations in support of a previously-asserted legal theory—even

if the factual allegations come into existence after the state

habeas relief is denied—where the factual basis underlying a

claim is different from those underlying the state claim.41      In

this case, the factual basis for Wolfe’s claim is different from

that underlying his state claim.

     In district court, Wolfe maintained his wife would have

     40
          Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000).
     41
      See Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986);
Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir. 1983).

                                   20
testified during the punishment phase of his trial.      But Wolfe

did not advance this position in state court.      Instead, Wolfe

simply complained that Laine failed to present mitigating

evidence.   Thus, Wolfe’s argument in federal court is different

than it was in state court.    As a result, the district court was

precluded from considering the allegation that Wolfe’s wife would

have presented mitigating evidence.

     Without this assertion, the state habeas court and the

district court properly relied on the statement in Laine’s

affidavit that the wife did not want to testify.      This statement

supports the district court’s conclusion that Wolfe did not

establish that the jury would have sentenced him to life in

prison had his wife testified during the punishment phase of

trial.    Consequently, the district court correctly decided this

matter.

                              Conclusion

     The district court carefully considered the arguments

presented in Wolfe’s federal habeas application.      Rather than

determine whether each specific complaint constituted ineffective

assistance, or whether the totality of Laine’s purported failures

constituted ineffective assistance, the district court considered

Strickland’s prejudice question.       In considering prejudice, the

district court correctly determined that Wolfe had not shown he

was prejudiced by Laine’s purported failures.      Although the state


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habeas court disposed of Wolfe’s state habeas application

differently than the district court disposed of Wolfe’s federal

application, the state court’s decision is not contrary to, and

does not involve an unreasonable application of, clearly-

established federal law.   As a result, this court AFFIRMS the

judgment of the district court.

AFFIRMED.




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