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

                                                                         FILED
                                                                       March 11, 2009
                                       No. 08-70017
                                                                  Charles R. Fulbruge III
                                                                          Clerk
MICHAEL JAMES PERRY

                                                   Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent-Appellee




                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                             USDC No. 4:07-CV-01032


Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges
EDITH H. JONES, Chief Judge:*
       Petitioner Michael James Perry was convicted and sentenced to death in
Texas state court for murdering Sandra Stotler while burglarizing her house in
a subdivision in Montgomery County, Texas. After he exhausted state remedies,
Perry sought a writ of habeas corpus under 28 U.S.C. § 2254. The district court
denied relief and refused to grant a certificate of appealability (“COA”). Perry



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-70017

now requests a COA on three issues: (1) his counsel was ineffective during the
sentencing proceedings; (2) the government withheld potentially exculpatory
evidence; and (3) as applied, the jury’s mitigation instruction unconstitutionally
limited the evidence the jury could consider. Because no reasonable jurist could
find the district court’s resolution of these issues debatable or conclude that
Perry’s arguments deserve to proceed further, we deny the request for a COA on
all issues.
                              I. BACKGROUND
      Perry’s guilt is not at issue in this appeal. The jury convicted him of
capital murder for brutally murdering Sandra Stotler in the course of
burglarizing her house. According to Perry’s confession, he and his friend Jason
Burkett decided to steal two cars. They identified two cars, a Camaro and Isuzu
Rodeo, that belonged to the parents of another friend, Adam Stotler. Perry and
Burkett made a plan to spend the night at the Stotler house and steal a car in
the middle of the night. On October 24, 2001, Perry and Burkett drove to the
Stotler house with a 12-gauge shotgun in a blue Chevy truck belonging to
Burkett’s girlfriend, Kristin Willis. Sandra Stotler, Adam’s mother, told Perry
and Burkett that Adam would not be home until 9 pm. They returned to their
truck and drove several blocks before deciding that it would be easier to steal the
car when only one person was home.
      When they arrived back at the house, Burkett knocked on the front door
and asked to use the phone. Perry then went into the house through the back
door in the garage with the shotgun and hid in the laundry room. Perry knocked
on the back door. When Sandra Stotler went to the back door, Perry came out
of the laundry room and shot her in her side. Sandra Stotler fell, then tried to
get up, and Perry shot her again. At this point, Perry and Burkett wrapped her
in bedsheets and blankets and loaded her into the back of the truck. As they



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could not find the keys to the Camaro, both Perry and Burkett left in Willis’s
truck.
         Burkett drove the car to nearby Crater Lake. At first, Burkett and Perry
opened the tailgate and tried backing up to the lake, hoping that Sandra
Stotler’s body would slide out. When that did not work, they grabbed her body
and rolled her into the water. They covered her body with the sheets, sticks, and
brush. Burkett and Perry drove to pick up Willis from work and returned to the
Stotler house. When Adam Stotler arrived back at his house with his friend
Jeremy Richardson, Burkett and Perry convinced them that a friend had been
shot in the woods and needed their help. Adam and Jeremy followed Willis’s
truck in Adam’s Isuzu. When they arrived in the woods, Perry and Burkett led
Adam and Jeremy into the woods. According to Perry, Burkett shot Jeremy and
then Adam.       Perry removed the car keys and wallet from Adam’s pocket.
Burkett and Perry returned to the truck. Willis asked what had happened,
became upset, and left in her truck. Burkett and Perry stole the Camaro and
Isuzu. Perry ended his confession by stating that they returned home, cleaned
up, and went to a bar.
         Two days later, Perry attempted to evade police who had tried to stop him
for traffic violations. The high speed chase ended when Perry wrecked the
Camaro and fled on foot. He was eventually apprehended with Adam Stotler’s
wallet. He was booked and released on bond as Adam Stotler. The next day,
Sandra Stotler’s body was found in Crater Lake. Several days later, while in the
stolen Isuzu, Perry and Burkett ran into a deputy sheriff’s vehicle while trying
to escape arrest. The vehicle crashed into a nearby store. Burkett and Perry
were arrested hiding in a neighboring apartment complex; the shotgun used to
kill Sandra Stotler was also found there.
         Forensic evidence found near Crater Lake, in the woods, and at the Stotler
residence matched Perry’s confession. Perry was tried for Sandra Stotler’s

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murder. During his trial, Perry took the stand in his defense and claimed that
his confession had been untrue. Perry, however, had made several subsequent
statements that implicated him in the murder.
        At the sentencing phase, the defense presented extensive evidence about
Perry’s family history and upbringing.      An adopted child, Perry had been
diagnosed with Attention Deficit Disorder (“ADD”) at 8 years old. He was later
diagnosed with oppositional defiant disorder.       A year after that, he was
diagnosed with conduct disorder.      Perry twice tested negative for bipolar
disorder after being admitted to a mental hospital. He never qualified for special
education classes in elementary school, had an IQ of 97, and was by all accounts
an average student.
        Perry often ran away from home. He stopped going to school in junior
high.    He stole his mother’s jewelry and the family car.      He broke into a
neighbor’s home and destroyed the moldings. Perry’s parents filed charges and
had him committed to a long-term facility for mental health care. He was sent
to Boys Town in Nebraska, but after threatening his house parents, he was
moved to a locked facility within the program. Perry’s problems did not qualify
him for any mental health care provided by the facility. When he was expelled
from Boys Town, his parents moved him to a secured high school campus in
Mexico called Casa by the Sea.       After high school, Perry was essentially
homeless and jobless. He had a brief stint in the Job Corps, laying tile, and at
Wal-Mart. Perry also stole and sold prescription pills to support his indulgence
in alcohol and pills.
        The defense presented testimony from Perry’s biological mother who
testified that she used drugs and alcohol until a month or two before Perry was
born. Despite this, Perry was full weight and healthy when born. Although no
biological relatives had committed murder, Perry’s mother testified to a family
history of depression, alcoholism, drug use, and thievery. Dr. Gilda Kessner, a

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clinical psychologist with a forensics background, interviewed Perry and testified
that Perry’s youthfulness was his greatest risk factor for recidivism. After
serving time in prison, Dr. Kessner testified, the likelihood of Perry’s becoming
violent would drop to zero.
      The jury found Perry guilty of capital murder. During the sentencing
phase, the jury found that Perry posed a continuing threat to society and that
there were not sufficient mitigating circumstances to warrant a life sentence.
The trial court sentenced Perry to death. The Texas Court of Criminal Appeals
affirmed, and the United States Supreme Court refused Perry’s petition for a
writ of certiorari. Perry then filed a writ of habeas corpus. The Texas Court of
Criminal Appeals denied all nineteen grounds for relief. Perry filed a federal
petition for a writ of habeas corpus. The district court granted the director’s
motion for summary judgment and sua sponte denied Perry a certificate of
appealability. Perry subsequently filed this appeal.
                               II. DISCUSSION
      To obtain a COA under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), which governs this case, Perry must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El
v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). Thus, he “must
demonstrate that reasonable jurists could find the district court’s resolution of
his constitutional claims debatable or that reasonable jurists could conclude that
the issues presented are adequate to deserve encouragement to proceed further.”
Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005) (citing Miller-El, 537 U.S.
at 336, 123 S. Ct. at 1039).     “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims.”
Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039. Rather, it only “requires an
overview of the claims in the habeas petition and a general assessment of their
merits.”   Id.   Nevertheless, “[b]ecause the present case involves the death

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penalty, any doubts as to whether a COA should issue must be resolved in [the
defendant’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
      In addition, a state habeas court’s findings of facts and its credibility
determinations are presumed correct but may be rebutted by clear and
convincing evidence. See Summers v. Dretke, 431 F.3d 861, 871-72 (5th Cir.
2005) (citing 28 U.S.C. § 2254(e)(1)).
      Against these background criteria, we address each of Perry’s issues.
                    A. Ineffective Assistance of Counsel
      In his application for a COA, Perry asserts that his trial counsel failed
adequately to investigate, develop and present mitigating evidence for use at
sentencing. Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984), Perry must show that his trial counsel’s performance was deficient and
that the deficiency resulted in prejudice. We measure counsel’s performance
against an objective standard of “reasonableness under prevailing professional
norms.” Id. at 688, 2065. Analysis under this standard begins with a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” and we must make “every effort . . . to eliminate the
distorting effects of hindsight.” Id. at 689, 2065.
      When assessing effectiveness at the sentencing stage, counsel’s
“investigations into mitigating evidence should comprise efforts to discover all
reasonably available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 524,
123 S. Ct. 2527, 2537 (2003). In assessing the prejudice prong, this court will
ask “whether the changes to the mitigation case would have a reasonable
probability of causing a juror to change his or her mind about imposing the
death penalty.” Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008). In
doing so, we “evaluate the totality of the available mitigation evidence -- both
that adduced at trial, and the evidence adduced in the habeas proceeding -- in



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reweighing it against the evidence in aggravation.” Williams v. Taylor, 529 U.S.
362, 397-98, 120 S. Ct. 1495, 1515 (2000).
      First, Perry argues that counsel was late in locating and unsealing Perry’s
adoption records. Trial counsel subpoenaed Perry’s adoption records at the
beginning of jury selection, found several biological and adoptive relatives to
testify, and retained Dr. Kessner to put together a mitigation package for
sentencing. While Perry does not dispute this, he claims earlier and further
investigation would have turned up three generations of alcoholism, substance
abuse, and depression and provided a more complete picture of Perry’s inherited
problems.
      Second, Perry argues that he is bipolar and a more complete psychological
evaluation would have revealed his mental illness. Although Perry’s counsel
attributed Perry’s crime to impulsivity associated with mental illness, the jury
did not hear any specific evidence that Perry might be bipolar. Dr. Kessner is
a clinical psychologist who interviewed Perry for seven to eight hours and also
interviewed his biological relatives. The doctor testified at sentencing that Perry
had ADHD and had suffered sexual abuse as a child. Although Dr. Kessner did
not suspect Perry of being bipolar and there was nothing in Perry’s record to
indicate that he might suffer from bipolar disorder,1 Perry argues that effective
trial counsel would have suspected organic brain damage or some mental
impairment beyond what had already been discovered.
      Finally, Perry argues that his counsel did not investigate and present
sufficient evidence of his drug and alcohol abuse. Although counsel presented
evidence of Perry’s drug and alcohol problems, Perry argues that counsel did not
present it as serious enough or as something Perry had no control over. Counsel
did present evidence that Perry had starting drinking and smoking marijuana

      1
         The first mention of possible bipolar disorder was not made until Perry was
transferred to death row.

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at a very young age, had progressed to more serious drugs, was involved in a lot
of drugs and drinking, and had been selling prescription drugs at one point.
      Perry argues that trial counsel’s conduct is analogous to the ineffective
assistance in Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005). In that
case, post-trial investigation uncovered a picture of Rompilla’s “childhood and
mental health [that was] very different[] from anything defense counsel had seen
or heard.” Id. at 390, 2468. Despite the fact that the prosecution had provided
defense counsel with the file that included such evidence, Rompilla’s counsel did
not present this evidence during sentencing and had failed to examine a public
file of the defendant’s previous convictions. Petitioner has also directed us to
Walbey v. Quarterman, No. 08-70007, slip op. (5th Cir. Jan. 19, 2009), an
unpublished and therefore non-precedential opinion of this court.       As with
Rompilla’s counsel, Walbey’s trial counsel did not discuss mitigation with the
psychologist, interview Walbey’s mother, or investigate Walbey’s relationship to
the victim.   The psychologist in that case presented no testimony on the
mitigation issue.
      In this case, however, Perry is unable to point to the sort of unreasonable
performance that existed in Rompilla or Walbey. Perry’s counsel did extensive
investigation into Perry’s biological family, provided the jury with testimony
regarding Perry’s troubled background, and offered Dr. Kessner’s evaluation and
mitigation testimony. Trial counsel was not required to shop for an expert who
would diagnose Perry with a disorder for which he had already tested negative
or present even more evidence of Perry’s genetic past. “While in hindsight, it is
easy to say that trial counsel could have done more, we find the state habeas
court reasonable in its conclusion that trial counsel performed reasonably based
on the context and circumstances at the time of the representation.” Blanton v.
Quarterman, 543 F.3d 230, 239 (5th Cir. 2008).



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      Because Perry fails to raise an issue concerning counsel’s mitigation
strategy that is debatable among reasonable jurists, we need not consider the
Strickland prejudice prong and deny COA on this issue.
                              B. Brady Violation
      Perry argues that the prosecution violated his right to due process when
it concealed potentially exculpatory evidence. Specifically, he believes that the
State willfully or inadvertently withheld evidence that would have impeached
key witnesses, Victor Neal and Kristin Willis, and that this prejudiced him.
      Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the
suppression by the prosecution of “evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Id.
at 87, 1196-97. In order to prevail on a Brady claim, Perry must show that “[t]he
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281–282, 119 S. Ct. 1936, 1948
(1999). This court has held that “evidence is not ‘suppressed’ if the defendant
either knew, or should have known of the essential facts permitting him to take
advantage of any exculpatory evidence.” Rector v. Johnson, 120 F.3d 551, 560
(5th Cir. 1997).
      Victor Neal was Perry’s roommate at the time of the murder. He testified
both at the guilt and sentencing stage of the proceedings.        Neal provided
testimony that Sandra Stotler’s murder was premeditated, that Perry and
Burkett drove around town with a loaded shotgun looking for a place to dump
the body, and that Perry was a serial criminal. At the sentencing stage, Neal
testified that he was present when Perry and Burkett broke into a house and
stole several electronics but that he waited in the car. Perry now argues that the

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prosecution agreed not to prosecute Neal for his role as a lookout in the burglary
and that they failed to turn over this information to the defense.
      The State admits that Neal was nervous about his role in the burglary, but
it asserts that prosecutors only assured Neal that they were not interested in
him and that in exchange for his cooperation they did not discuss immunity or
any other promises not to prosecute Neal in exchange for his testimony. One of
the prosecutors explained to Neal that, based on what Neal had described, he
could not be prosecuted because he was not actually a participant in the crime.
      The State is required to disclose any inducements made to a witness—not
just formal immunity agreements or promises. “Where, as here, the witness's
credibility ‘was . . . an important issue in the case . . . evidence of any
understanding or agreement as to a future prosecution would be relevant to his
credibility and the jury was entitled to know of it.’” Tassin v. Cain, 517 F.3d
770, 778 (5th Cir. 2008) (quoting Giglio v. United States, 405 U.S. 150, 154-55,
92 S. Ct. 763 (1972) (omissions in original)).
      The state habeas court issued extensive and detailed factual findings,
including that the “State did not suppress evidence of an ‘immunity agreement’
with Victor Neal,” “the evidence was insufficient to prove that Mr. Neal was
more than merely present during the burglary,” and, even without Neal’s
testimony, “the evidence of [Perry’s] guilt is overwhelming.” Perry does not
present clear and convincing evidence to contradict these findings.          It is
untenable to argue that prosecutors have achieved testimony for their side from
an innocent witness by offering to do that which they are required to do, i.e. not
prosecute. We, therefore, agree with the district court that no reasonable jurist
could conclude that the prosecutors violated their obligations under Brady in the
way that they presented Neal’s testimony.
      Perry also contends that the prosecution suppressed a blood spatter on
Kristin Willis’s shirt, which would have impeached her testimony that she was

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not present during the murders. According to an affidavit from the State, the
prosecution had an open file policy. Willis’s shirt, her statement admitting that
the shirt was hers, and blood tests revealing blood matter and the possibility of
a high velocity blood spatter were all included in the case file. Trial counsel
admitted that he recalled seeing photos of the shirt, and another trial counsel
remembered seeing DNA reports on it.
      Perry acknowledges that his trial counsel were aware of the shirt and a
DNA report that did not link the blood on the shirt to Perry or Sandra Stotler,
but he argues that the blood spatter itself was not disclosed. Because the State
maintained an open file policy and trial counsel had access to the necessary
information, the prosecution had no duty to give further guidance as to what
evidence may have been exculpatory. See United States v. Mulderig, 120 F.3d
534, 541 (5th Cir. 1997). In addition, there was unrefuted evidence that Kristin
Willis was at work during the time that Sandra Stotler was killed.           This
evidence included phone and work records and the testimony of a coworker.
      In the alternative, Perry asserts in passing that if his trial counsel did
have access to the blood spatter, trial counsel was ineffective for failing to use
the shirt to impeach Willis. Perry, however, did not brief this issue to the
district court and presents no reason why her impeachment could have overcome
the overwhelming evidence tying him to Sandra Stotler’s murder.
      Our review of the record persuades us that reasonable jurists could not
debate the district court’s conclusion that no relief is warranted by the Brady
claims.
               C. Unconstitutional Mitigation Instruction
      Perry argues that, as applied, the Texas mitigation instruction
unconstitutionally limited the mitigating evidence that Perry’s jury considered.
Because Perry did not raise this as-applied challenge before the state courts or



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the district court, his claim has not been exhausted and is procedurally
defaulted.
        “A federal habeas petition should be dismissed if state remedies have not
been exhausted as to all of the federal court claims. . . . The exhaustion
requirement is satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court.” Smith v. Dretke, 422 F.3d 269, 275
(5th Cir. 2005) (citing Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509
(1971)). “The exhaustion requirement is not satisfied if the prisoner presents
new legal theories or factual claims in his federal habeas petition.” Nobles v.
Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing Anderson v. Harless, 459 U.S.
4, 6-7, 103 S. Ct. 276 (1982)).
        In his brief to the district court, Perry brought a facial challenge to Texas’s
mitigation instruction. Examples from his trial were given to demonstrate the
facial invalidity of the instruction. Perry now argues that this also constituted
an as-applied challenge. Nothing in his brief, however, gave any indication that
Perry was challenging Texas’s mitigation instruction as it was applied in his
case.    Rather, Perry argued that “viewed in practice, [the Texas scheme]
unconstitutionally denies capital defendants the right to have all their relevant
mitigating evidence considered by the jury.”
        The district court made no ruling on the effect of the mitigation instruction
in this trial because Perry had not argued it. We reject Perry’s suggestion that
the district court had an independent obligation to look beyond the issue and
instruction for “reason to believe that the jury was confused or misled in
answering the mitigation special issue.” Scheanette v. Quarterman, 482 F.3d
815, 826 (5th Cir. 2007). In Scheanette, the district court considered the as-
applied challenge to the instruction because it had been raised by Scheanette,
not because of an independent obligation to do so. Id. (“Scheanette’s claim that
the instruction in effect ‘nullified’ the mitigation special issue is unsupported.”).

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Requiring district courts to search through the record to determine whether as-
applied Penry challenges are appropriate would be a gross distortion of AEDPA,
which places the burden on the petitioner to prove that the state courts have
unreasonably applied governing constitutional law.         See Penry v. Lynaugh,
492 U.S. 302, 109 S. Ct. 2934 (1989) (holding that jury instructions must provide
the jury with a vehicle for expressing its reasoned moral response to mitigating
evidence in rendering its sentencing decision).
      At the state level, Perry briefly made a facial challenge to the mitigation
instruction in his direct appeal to the Texas Court of Criminal Appeals. In his
reply brief to this court, Perry does not contest that he did not argue an as-
applied challenge to the state court. Instead, Perry argues that the State waived
this argument.     28 U.S.C. §2254 states that a state can only waive the
exhaustion requirement through express waiver. In its answer to Perry’s federal
habeas petition, the State acknowledged that “Perry exhausted his claims
regarding the constitutionality of the Texas mitigation special issue during
direct appeal.” This is not an express waiver as to the as-applied challenge.
While the State conceded that Perry had exhausted the claims he had presented
below, the State did not and could not have waived this argument as to the new
claims he now argues.
      Because Perry did not exhaust this argument at the state level or brief this
issue to the district court, we will not consider it.
                              III. CONCLUSION
      For the reasons discussed above, we deny Perry’s request for a COA on all
claims and as such lack jurisdiction to review the district court’s denial of habeas
relief on these claims. See Miller-El, 537 U.S. at 335-36, 123 S.Ct. at 1039.
      COA DENIED.




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