     Case: 15-70024      Document: 00513651038         Page: 1    Date Filed: 08/24/2016




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

                                      No. 15-70024
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           August 24, 2016

BILL DOUGLAS GATES,                                                         Lyle W. Cayce
                                                                                 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
                             USDC No. 4:09-CV-2702


Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
       Bill Douglas Gates was convicted of capital murder and sentenced to
death in Texas. Based on our “threshold inquiry,” consisting of “an overview
of the claims in the habeas petition and a general assessment of their merits,”
Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003), this Court granted a
certificate of appealability (COA) authorizing Gates to appeal the district
court’s denial of federal habeas relief as to his claim regarding investigation


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-70024

and presentation of mitigating evidence.         We authorized Gates to file a
supplemental brief addressing the merits of this claim, to the extent not
already addressed in the COA briefing, but he declined. We now AFFIRM the
district court’s denial of federal habeas relief for this claim, for the reasons that
follow.
                                         I.
      The facts and procedural history are set out in our opinion of May 18,
2016. Gates v. Davis, ___ F. App’x ___, 2016 WL 2909193, at *1–4 (5th Cir.
May 18, 2016).
                                         A.
      Gates claims that trial counsel rendered ineffective assistance by failing
to investigate and present mitigating evidence at the punishment phase of his
trial. This claim was not raised by Gates’s state habeas counsel and is
procedurally defaulted.     Under Martinez v. Ryan, 132 S. Ct. 1309 (2012),
federal habeas petitioners may attempt to show cause for default by
demonstrating the ineffectiveness of state habeas counsel in failing to raise a
substantial ineffective assistance of trial counsel claim. 132 S. Ct. 1309, 1316
(2013).   The Court in Trevino v. Thaler, 133 S. Ct. 1911 (2013), applied
Martinez to Texas inmates. A finding that Martinez applies allows federal
district court merits review of claims that are otherwise procedurally
defaulted. See Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014). While
the district court found Gates’s claim procedurally defaulted, it also addressed
Gates’s claim on the merits and concluded that he was not entitled to federal
habeas relief. Because Gates has already received the relief available to him
under Martinez and Trevino—that is, review of the merits by the district
court—we turn directly to the merits of Gates’s IATC claim.


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      To establish ineffective assistance of trial counsel, a petitioner must
show that counsel’s performance was deficient and that he was prejudiced by
the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“The likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011). This showing is intentionally
difficult to make: “In assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no effect on the
outcome. . . . Instead, Strickland asks whether it is ‘reasonably likely’ the result
would have been different.” Id. at 111.
                                        B.
      The defense did not present any evidence at the punishment phase of
Gates’s trial. Prior to closing arguments, Gates’s counsel stated to the trial
court that they had made a diligent effort to contact a couple of cousins, but
had been unable to locate them.
      The prosecution relied on the lack of witnesses for Gates to urge the jury,
in closing argument, to ignore the mitigation special issue “because there isn’t
a shred of mitigating evidence.” The prosecutor stated further: “In terms of
mitigation, is there any evidence before you that the defendant is retarded,
that he was abused as a child, some evidence that he was a warrior or did
anything extraordinary in his life? Absolutely no.”
      In their closing arguments, Gates’s counsel referred to testimony of a
jailer that Gates was a good worker and had been put in the job of staff worker
in the jail, one of two, out of 700. Defense counsel also pointed out that Gates
would not be eligible for parole until old age, and would no longer pose a threat
to society if released. Counsel asked the jury to be compassionate to Gates,
noting that no one had ever shown Gates any mercy or support, as evidenced


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by the fact that no one had come to speak for Gates, plead for his life, or even
to say, “Good-bye, Bill.”
      Gates argues that no witnesses were called to testify for him because his
defense lawyers never tried to locate any or to make any investigation of his
early life experiences. In his brief in support of his federal habeas petition,
Gates alleged that effective counsel would have talked to his older brother, who
would have described the conditions in which Gates was raised and which
determined the dysfunctional course of his life, and would have found school
records from California which regularly note the turbulence of his home life,
variously describe him as belligerent, emotionally and socially immature, slow
to learn, and having a short attention span, and corroborate the information
provided by his brother. He alleged that if counsel had retained a mental
health professional, they would have learned that Gates suffers cognitive and
emotional disabilities, probably caused by his mother’s alcohol abuse during
her pregnancy with him, her dissipated lifestyle after he was born, and a level
of neglect which left him at the mercy of a social order where he was regarded
as a second-class citizen.
      To support these allegations, Gates presented the following exhibits in
support of his federal habeas petition: (1) the affidavit of mitigation specialist
Vince Gonzales, along with California court records and school records; (2) the
affidavit of his half-brother, George Lemmons, Jr.; (3) the affidavit of his half-
sister, Tommie Jean Riggs; (4) the affidavit of his aunt, Billie Swancy; and (5)
the report of a neuropsychological evaluation conducted by Gilbert Martinez,
Ph.D., who was retained by federal habeas counsel.
      In his affidavit, Gonzales stated that he obtained school records
describing Gates as emotionally and socially immature, a slow learner with a
short attention span, and as having a home life in turmoil. Gonzales spoke

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with an attorney and obtained paperwork suggesting at least two cases in
which Gates’s mental health was an issue. Gonzales’s interviews with Tommie
Jean Riggs (maternal half-sister), George Lemmons, Jr. (maternal half-
brother), Vada Swancy Houston (cousin) and Billie Swancy (aunt) corroborated
statements in Gates’s school records describing a life of turmoil. All of them
also described alcoholism being prevalent in the households in which Gates
lived. Gonzales stated that Gates’s aunt, Billie Swancy, had reported that
Gates’s mother, Nettie Scott, was a heavy drinker and that she was unaware
of any period in Ms. Scott’s life when Ms. Scott did not consume alcohol,
including the time when she was pregnant with Gates.
      Gates’s half-brother, George Lemmons, stated in his affidavit that he is
three years older than Gates. He stated that Gates’s birth certificate reflects
that he was a small baby, weighing only 5 pounds, 10 ounces and measuring
17 1/2 inches in length. Their mother, who died in 1958, when Gates was about
9 years old, was an alcoholic, and each of the households they lived in suffered
under the burden of alcohol abuse.         He said that Gates had a troubled
childhood, was subjected to harsh discipline by his caretakers, and received
less encouragement and positive reinforcement. He also stated that Gates was
a “bothersome” child who would pick on other children and was a “pest.”
Further, from an early age, Gates had an explosive temper and would often get
angry at the slightest event. He said that Gates had informed him, many years
after leaving the California Youth Authority, that he had been sexually
assaulted by a guard and later by older inmates.             He described his
correspondence with Gates that included references to prescription anti-
depressant medication, children Gates may have fathered, Gates’s attempts to
obtain help for drug addiction and homelessness, and various documents
showing completion of vocational and religious coursework while Gates was

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incarcerated. Lemmons said that Gates also reported that he had been beaten
by a police officer and sustained a head injury. He said that he had been told
that their mother was taken to a “voodoo” doctor to cure hallucinations and
mean-spirited behavior.
      Gates’s half-sister, Tommie Jean Riggs, stated in her affidavit that when
she was three years old, she and her brothers were removed from their
mother’s care by Children’s Protective Services. She said it has always been
her understanding that the removal was because of the mother’s alcohol
problem. She was placed with her father and never lived with her brothers
again. She could only remember seeing Gates six or seven times.
      Gates’s aunt, Billie Swancy, stated in her affidavit that Gates’s mother,
Nettie Scott, was a “serious, heavy drinker” who drank all the time, including
when she was pregnant. Gates’s mother was once taken to a “voodoo” doctor
to cure her strange behavior and alcoholism. Scott’s drinking led to conflict
and turmoil in her life and the lives of her children, who were moved from
house to house and had no stability in their lives.
      Dr. Gilbert Martinez, a psychologist, reported on his neuropsychological
evaluation of Gates on August 11, 2009. In addition to interviewing Gates and
administering tests, Dr. Martinez also reviewed the mitigation report and
affidavit of Vince Gonzales and the school records that Gonzales obtained.
      Gates reported to Dr. Martinez that he had suffered several head injuries
that resulted in a loss of consciousness, but said that he did not receive medical
attention for the injuries because he had a fear of hospitals and suffered from
hysteria.   Gates told Dr. Martinez that he suffered memory problems
throughout his life, which Gates attributed to the head injuries. Gates also
told Dr. Martinez that he suffered from depression. Dr. Martinez stated that
Gates was somewhat evasive when discussing his childhood and family.

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Although Gates said that, as a child, he was beaten regularly by adults, Gates
did not believe it was physical abuse. Gates initially denied having other
history of physical or sexual abuse but when asked specifically about a
potential childhood sexual abuse history, Gates said that “growing up a few
things happened, sometimes you have a sexual relationship.” Gates told Dr.
Martinez that he began smoking marijuana at age 11, smoked daily for many
years, and was “high all day.” He started smoking crack cocaine daily for many
years and reported using hallucinogens several times. He also reported use of
heroin, cocaine, and pills, including “Bennies” and Valium. He drank alcohol
heavily in his thirties but otherwise tended to drink off and on.
      Dr. Martinez said that Gates was also somewhat evasive when
describing his social history. Gates was unsure why he was not raised by his
mother and did not know his father. He believed that a police officer had killed
his mother. He reported having a sister and brother but was unwilling to talk
about their relationship with him. He reported being “common-law married
two to three times” but was not willing to elaborate on his marital history or
to discuss his children.
      Gates told Dr. Martinez he had graduated from high school in California
and described himself as a poor student after he was hit on the head at age
seven. Gates suggested that he received poor care and education because there
was a racial issue. He said that he was in special education classes throughout
school, but provided no detail. He said that he had worked as a welder, short
order cook, gas station manager, and boilermaker.
      Dr. Martinez summarized his findings as follows:
      With respect to emotional functioning, records reveal a pattern of
      affective and behavioral instability throughout Mr. Gates[’]
      development. In addition to significant problems with behavioral
      dyscontrol, Mr. Gates appears to have developed a substance abuse

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                                No. 15-70024

     disorder beginning in early adolescence that was co-morbid with
     his emotional, behavioral, and cognitive deficiencies. He currently
     presents with thought and behavior suggesting he suffers from
     anxious     preoccupation and significant problems              with
     suspiciousness and mild paranoid-delusional ideation. This has
     likely been a lifelong problem for Mr. Gates and has been
     exacerbated by current severe psychosocial stressors. The extent
     to which his paranoid thought and behavior represent a psychotic
     disorder versus a characterological issue could not be fully
     determined [in] the current assessment, although his current
     clinical presentation and history are suggestive of a chronic mental
     disorder.
     Potential etiologies to explain Mr. Gates’ apparent lifelong
     problems with behavioral control and acquisition should primarily
     include the strong probability that he suffers from a Fetal Alcohol
     Syndrome Spectrum Disorder. Interviews with family members
     described a pattern of alcohol abuse during gestation that
     correlates with his behavioral and executive dysfunction
     throughout his development. Chronic substance abuse can also
     contribute to cognitive dysfunction, although Mr. Gates[’]
     problems with learning and behavior appear to be preceded by his
     substance abuse. It is likely that poor impulse control, impaired
     judgment, and behavioral instability throughout his development
     contributed to his substance abuse disorder.
     Mr. Gates also described a potential history of repetitive head
     trauma and subsequent speech deficits which may be contributing
     to his cognitive, emotional, and behavioral problems as well.
     Unfortunately, documentation appears to be limited in describing
     the extent and severity of these injuries, and his behavioral
     problems appeared to have started at a very [early] age.
ROA.150–51 (emphasis added).
     Dr. Martinez concluded that Gates “appears to suffer from lifelong
problems with behavioral dyscontrol, emotional dysfunction, and reduced
learning and acquisition that can be correlated with information in his
mitigation history suggesting that his mother abused alcohol during gestation
and his infancy.” ROA.151 (emphasis added). He concluded further that Gates

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“suffers from suspiciousness and paranoid ideation that may be related to a
potential undiagnosed/untreated chronic mental disorder.” However, he found
that, because of the nature of such condition, Gates was likely to be unwilling
to accept medical treatment for it.
      Gates contends that, based on the exhibits he offered in support of his
federal habeas petition, an unobjectionable argument could have been made to
the jury that he was conceived, born, and delivered into the world by an
alcoholic mother, whose consumption of alcohol during her pregnancy probably
resulted in some degree of fetal alcohol brain damage and ensuing spectrum
disorders, largely corroborated by very low IQ scores and poor academic
performance, that he was neglected and abused by family members and by a
series of men with whom his mother had fleeting, unsuccessful relationships,
and that he was raised in poverty, had trouble in school from an early age, was
embittered by mistreatment from law enforcement officers, suffered sexual
assaults in prison while still a teenager, and never succeeded at any vocation
or career.
      With respect to prejudice, Gates asserts that the evidence of the
circumstances of his birth and upbringing, all beyond his control, would likely
have made a difference at the punishment phase, because it explains and
places in context the conduct that the prosecution relied on for a death
sentence, and rebuts the inference that his violent and antisocial behavior was
something entirely of his own making and for which he alone should be held
responsible.
      Gates also contends that the district court should not have denied this
claim without allowing funds for further factual development and conducting
an evidentiary hearing.    He claims that trial counsel refused to provide
affidavits explaining what strategic or tactical reasons they might have had

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for their action or inaction and that, without an opportunity to compel their
testimony through the use of compulsory process, he cannot now meet his
burden to establish that the shortcomings alleged in his petition were caused
by deficient performance and were not the product of deliberate strategic or
tactical judgments.
      The State points out that because Gates never presented this claim in
state court, trial counsel never had the opportunity to respond to his
allegations. Therefore, the court must presume that trial counsel made a
strategic decision to base their defense at punishment on Gates’s lack of
support from family and friends and the State’s failure to prove future
dangerousness.
      The State also attacks the evidence presented by Gates. It notes that
although Lemmons, Gates’s half-brother, said that he was never contacted by
trial counsel, Lemmons acknowledges that he was contacted by Gates. The
State thus contends that one could reasonably infer that Gates did not tell trial
counsel about Lemmons, or specifically told trial counsel not to contact
Lemmons; or one could infer that counsel did contact Lemmons, and Lemmons
declined to cooperate.    The State observes that Gates’s psychologist, Dr.
Martinez, noted that Gates was evasive about his history and was unwilling to
discuss his children or his relationships with his siblings. Based on Gates’s
counsel’s statement in closing argument that “not a soul came here to speak on
behalf of Bill Gates,” the State asserts that it could be inferred that those
family members contacted by counsel declined to appear. Finally, the State
asserts that Gates’s allegations of fetal alcohol syndrome are unsubstantiated,
and he offers only hearsay and unsubstantiated statements regarding a poor
upbringing, childhood neglect, and sexual assault. Moreover, some of the
evidence, such as long-term drug use, mental difficulties, and an explosive

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                                     No. 15-70024

temper, might have been viewed by the jury as aggravating.                    The State
concludes that, considering the evidence of Gates’s life-long violent criminal
activity, which culminated in the rape and strangulation of the victim, Gates
failed to demonstrate a reasonable probability that the jury would have
reached a different decision on punishment.
      The district court observed that there were evidentiary problems with
some of Gates’s allegations.         For example, Gates told his half-brother,
Lemmons, that he had been sexually assaulted, but he did not verify that
information with his own affidavit or any other reliable account. Nor did he
substantiate the hearsay statements contained in his federal habeas
investigator’s affidavit. The court noted that although it had authorized funds
for an expert whose evaluation raised the possibility 1 that Gates suffered from
fetal alcohol syndrome, the expert, Dr. Martinez, did not diagnose him with
that condition after evaluating him. The district court also noted that some of
Gates’s new evidence would not be beneficial to the defense: (1) although
evidence of fetal alcohol syndrome-related deficiencies might support an
inference that Gates was not morally culpable for his behavior, it also might
suggest that he, as a product of his environment, was likely to continue to be
dangerous in the future; (2) evidence that Gates was belligerent, emotionally
and socially immature, slow to learn, and had a short attention span, would
not necessarily encourage a jury to forgo a death sentence; and (3) the evidence
of Gates’s explosive temper and resistance to authority would have a sharp
aggravating edge.
      The district court acknowledged that elements of Gates’s troubled
background might have given jurors a sympathetic understanding of his early


      1   Actually, Dr. Martinez reported that there was a “strong probability” that Gates
suffers from a Fetal Alcohol Syndrome Spectrum Disorder.
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involvement in crime, but pointed out that Gates was 37 years old when tried
for capital murder. 2 The court concluded that, with the subsequent years of
unremitting violence, the evidence relating to Gates’s family—their substance
abuse, mental illness and criminal problems—was by no means clearly
mitigating, as the jury might have concluded that Gates was simply beyond
rehabilitation. The court stated that, to the extent that Gates claimed that
trial counsel should have argued that he received virtually no guidance as a
youth and lacked sufficient resources to support his efforts to seek treatment
for his conditions, that information bears similar mitigating thrust to trial
counsel’s argument that no one had ever shown Gates any mercy or support.
      After weighing the new evidence Gates presented in federal court
against the evidence presented by the prosecution at trial—three serious adult
felonies in California, aggravated assault on a peace officer, aggravated
robbery, possession of a sharp instrument in prison, and the fact that Gates
had already received two life sentences before his rape and strangulation of
the victim—the district court held that Gates had failed to demonstrate a
reasonable probability of a different result had the unpresented mitigating
evidence been presented.
      The court concluded:
            Gates provides information trial counsel probably did not
      have and certainly did not put before jurors, but makes only
      summary arguments that the unpresented information would
      have allowed the jurors to return answers to the special issues
      resulting in a life sentence. This Court’s own review of the new
      evidence, when placed into the landscape of that which jurors
      considered, does not show a reasonable probability of a different
      result. On that ground, Gates has not shown actual prejudice from
      state habeas counsel’s failure to raise the barred Strickland claim.

      2  Gates was born in 1949, so he was 51 years old when tried for capital murder and,
at that time, had a 37-year career of crime, which began when he was 13 years old.
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      Gates’s mitigation-evidence claim is procedurally barred.
      Alternatively, and for the same reasons, Gates has not met his
      burden of showing that he deserves federal habeas relief on the
      merits.
      After de novo review of all of the evidence, we conclude that even if
deficient performance is presumed, the district court did not reversibly err in
its analysis of prejudice. As the district court noted, the new evidence of sexual
assault that Gates submitted is unsubstantiated. He did not even submit his
own affidavit about the alleged sexual assault.
      Although the district court may have mischaracterized Dr. Martinez’s
findings when it said that his evaluation raised the “possibility that Gates
suffered from fetal alcohol syndrome,” it is true that Dr. Martinez did not
definitively diagnose Gates with fetal alcohol syndrome. Nevertheless, Dr.
Martinez did state that there was information in Gates’s mitigation history
“suggesting” that his mother abused alcohol while pregnant with him and
found that there was a “strong probability” that Gates “suffers from a Fetal
Alcohol Syndrome Spectrum Disorder.”
      As the district court observed, evidence of fetal alcohol syndrome-related
deficiencies is mitigating in the sense that it might support an inference that
Gates is not as morally culpable for his behavior, but it also is aggravating in
the sense that it might support an inference that Gates is likely to continue to
be dangerous in the future. See Sells v. Stephens, 536 F. App’x 483, 495 (5th
Cir. 2013); Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012).
      This Court’s recent opinion in Trevino v. Davis, ___ F.3d ___, 2016 WL
3710083 (5th Cir. July 11, 2016), which discussed fetal alcohol spectrum
disorder (FASD) at length, does not support a different conclusion. Although
the issue before the Court in Trevino was whether a COA should be granted,
the Court stated that reasonable jurists would not only agree that the district

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court’s decision was debatable, but would also agree that the district court
erred by dismissing Trevino’s FASD claim, thus indicating that Trevino should
prevail on the merits. Id. at *22. Nevertheless, Trevino does not support a
ruling on the merits for Gates, because there is not a reasonable probability
that Gates’s jury would have reached a different decision, considering the
mitigating evidence he offered, including the evidence of FASD, and the
aggravating evidence.
         The report of Trevino’s expert, Dr. Dyer, indicated that she had received
information from one of Trevino’s federal habeas lawyers that, based on
reviews of his school records and interviews with his mother and family
members, there was evidence suggesting that Trevino had a history of fetal
alcohol syndrome (FAS) and possible cognitive limitations as a result of
prenatal exposure to alcohol.            Id. at *19.     Trevino’s expert reported that
Trevino’s facial features included notable distinguishing eye characteristics,
his stature is slightly below the norm for his age and ethnic group, and his
prenatal exposure to alcohol was significant, as was his low birth weight. Id.
at *20.        Trevino’s expert was able to obtain information about Trevino’s
prenatal alcohol exposure from a face-to-face interview of Trevino’s mother. Id.
at *19. Here, Gates’s expert, Dr. Martinez, was unable to interview Gates’s
mother, because she died in 1958.                   Dr. Martinez apparently relied on
Gonzales’s affidavit which stated that Gates’s aunt had reported that Gates’s
mother was a heavy drinker and consumed alcohol while she was pregnant
with Gates.
         Trevino’s expert’s report described in detail the characteristics and
effects of FAS and Fetal Alcohol Effects (FAE), 3 and explained how FAE would


         3   According to Trevino’s expert’s report, FAS “is diagnosed when there is apparent
facial       dysmorphology, growth restriction, and central nervous system and
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have affected Trevino’s decisions to participate in or refrain from the activities
that resulted in his capital murder charges and his ability to understand and
respond appropriately to the plea offer presented to him by his counsel. Id. at
*19-20. The report of Gates’s expert does not contain similar information. We
also observe that Trevino’s expert’s opinion that Trevino “presents with the
characteristics of FAE” was more definitive than Gates’s expert’s opinion that
there was a “strong probability” that Gates suffers from FASD, perhaps
because Trevino’s expert had more information, including an interview with
Trevino’s mother, upon which to base her opinion.
       Trevino is distinguishable on other grounds as well. First, the district
court’s prior opinion in Trevino had strongly suggested that the FASD evidence
in that case, if properly developed and admitted, conceivably could have
changed the result. Id. at *21. Second, the possible FASD evidence in Trevino
went to the heart of the most aggravating evidence against Trevino, his
inability to express remorse.
       In the light of the overwhelming evidence of Gates’s long history of
violent criminal behavior presented at trial, we hold that the district court did
not err by concluding that Gates has not demonstrated a reasonable
probability that presentation of the new evidence developed by his federal
habeas counsel would have produced a different result at sentencing.
Accordingly, he cannot establish that he was prejudiced.
       Gates also has not shown any abuse of discretion in the district court’s
refusal to allow further factual development or an evidentiary hearing on this
claim.   The factual development that Gates claims that the district court



neurodevelopmental abnormalities, with or without confirmed prenatal exposure to alcohol.”
Id. at *19. FAE is a term used to describe individuals who were exposed to alcohol prenatally
and have some, but not all of the characteristics of FAS. Id.
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should have allowed (compelling the testimony of trial counsel to prove that
the shortcomings alleged in his petition were not the product of deliberate
strategic or tactical judgments) is relevant to the deficient performance prong
of Strickland. The district court stated that the record provided only “hints”
about trial counsel’s efforts to prepare for the punishment phase and that,
despite “significant funds” and time to investigate during the initial federal
habeas proceedings, the record provided little insight into whether trial
counsel performed deficiently in investigating mitigating evidence. 4                     The
district court’s denial of relief, however, was based on the prejudice prong, and
its conclusion that Gates had failed to address the impact his new evidence
would have had at trial.           Gates has not explained how further factual
development or an evidentiary hearing would result in a stronger case for
prejudice.
       We hold that the district court did not err by denying relief because Gates
has not demonstrated a reasonable probability that he would not have received
a death sentence had counsel presented the evidence that federal habeas
counsel developed and submitted in support of this claim. We also hold that
the district court did not abuse its discretion by not allowing additional factual
development or an evidentiary hearing.
                                              II.
       For the foregoing reasons, we AFFIRM the district court’s denial of
federal habeas relief.




       4 Our review of the record confirms the district court’s assessment that there are only
“hints” about the efforts that trial counsel made to investigate mitigating evidence. The state
court record reflects that on September 25, 2000, the state court granted trial counsel’s
motion for funds to hire an investigator. During jury selection, defense counsel stated that
he had received some addresses and phone numbers of potential witnesses.
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