     Case: 09-70027 Document: 00511273503 Page: 1 Date Filed: 10/25/2010




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

                                                FILED
                                                                          October 25, 2010

                                       No. 09-70027                         Lyle W. Cayce
                                                                                 Clerk

STEVEN MICHAEL WOODS

                                                   Petitioner–Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                                   Respondent–Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                          USDC No. 6:06-CV-00344-LED


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Steven Michael Woods was convicted of capital murder and sentenced to
death in Texas state court. The district court denied Woods’s petition for writ
of habeas corpus but granted Woods a certificate of appealability on three issues:
(1) whether his counsel rendered ineffective assistance by failing to fully
investigate and present certain mitigating evidence; (2) whether his counsel
rendered ineffective assistance by failing to investigate or present evidence to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-70027

challenge the reliability of his alleged inculpatory statements; and (3) whether
he was denied his right to the assistance of counsel during custodial
interrogation when inmate Gary Don Franks elicited information from Woods
while he was incarcerated. Woods raises only the first issue in the instant
appeal, thus we address only the issue of whether trial counsel rendered
ineffective assistance during the punishment phase of Woods’s trial.
       Woods argues that the state court and district court erred in denying relief
for this claim without allowing evidentiary development. He asks this Court to
vacate the district court’s denial of relief and remand the case for further
evidentiary development. He argues that the district court incorrectly applied
precedent from the Strickland–Wiggins line of cases when it (1) did not consider
all   material   evidence    in   evaluating    the   prejudice    prong    of   his
Strickland–Wiggins claim; (2) denied an evidentiary hearing and relied on the
state court findings of fact and conclusions of law, which resulted from a
procedurally inadequate paper hearing; and (3) failed to focus on the possible
influence of omitted mitigation evidence upon the individual jurors.
       We find that the state court determination of ineffective-assistance-of-
counsel claim is not objectively unreasonable, and thus we affirm the district
court’s denial of habeas relief on this claim. Additionally, we do not find that the
district court abused its discretion in denying an evidentiary hearing given that
the state court habeas proceedings were full and fair.
                  I. FACTS AND PROCEDURAL HISTORY
       The district court set forth the relevant facts in this case:
             Early in the morning of May 2, 2001, two golfers driving down
       Boyd Road at the Tribute Golf Course near The Colony, Texas,
       found the bodies of Ron Whitehead and Beth Brosz. Both had been
       shot in the head and had their throats cut. Whitehead was dead;
       Brosz was still alive but after receiving medical care, she died the
       next day. That evening, police received several anonymous tips that
       Woods was involved in the killings, along with one Marcus Rhodes.

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      Detectives interviewed Woods, who admitted to being with the
      victims the night before their bodies were found. He said that he
      and Rhodes had agreed to lead Whitehead and Brosz to a house in
      The Colony owned by someone named “Hippy,” but that their two
      vehicles became separated during the trip, so he and Rhodes
      returned to the Deep Ellum section of Dallas. Woods was not
      arrested as a result of his interview. Detectives then interviewed
      Rhodes, and after a search of his car revealed items belonging to
      Whitehead and Brosz, Rhodes was arrested.
             Woods left the Dallas area, traveling to New Orleans, Idaho
      and California, where he was finally arrested. Several witnesses
      testified that before the killings he told them about his plan to
      commit the murders, and after the killings, he told them about his
      participation in them.

Woods v. Quarterman, No. 6:06-CV-344, 2009 WL 2757181, at *1 (E.D. Tex. Aug.
26, 2009). On April 18, 2002, Woods was indicted for capital murder for the
killing of more than one individual in the same criminal transaction, for which
he was found guilty by a Denton County jury.
      During a separate punishment hearing, the State, in addition to evidence
about the circumstances of the crime and Woods’s moral culpability, presented
evidence that Woods was involved in the murder of another individual in
California one-and-a-half months prior to the murders of Whitehead and Brosz;
that Woods got into a fight with another inmate in the Denton County Jail; that
Woods, Rhodes, and two other accomplices planned to rob a clothing store in
Deep Ellum; that Woods may have planned to murder a woman who was coming
to pick up vials of “acid” to sell; and that Woods made “bottle bombs” as a
juvenile.
      Woods’s attorneys, Jerry Parr and Derek Adame, presented only the
expert testimony of Robin Neely, a licensed master’s social worker with an
advanced clinical practitioner certification and a licensed marriage and family
therapist. Neely had reviewed records from the defendant’s four hospitalizations
at Havenwyck Hospital and St. Joseph Mercy Hospital, all occurring when the

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defendant was between the ages of thirteen and eighteen. The records included
family and social histories taken at that time.       She testified that Woods’s
behavioral problems—including drug use, continuing self-injurious behaviors
such as cutting himself, minor sexual assault, and eventually antisocial
behavior—stemmed from a horrible upbringing that was filled with physical and
emotional abuse by his father; devoid of any structure, support, or affection from
his mother; and completely lacking in any sort of accountability for his actions.
Neely testified that if the family or the juvenile justice system had addressed his
behavioral problems and provided for ongoing treatment earlier in his lifetime,
Woods could have reversed his downward spiral into drug abuse and self-
injurious and antisocial behavior.
      After hearing both sides, the jury found beyond a reasonable doubt that
(1) there was a probability that Woods was a continuing threat to society; (2)
Woods actually caused the death of the victims, intended to kill the victims, or
anticipated that the lives of victims would be taken; (3) there was no sufficient
mitigating circumstance to warrant a sentence of less than death after taking
into consideration the circumstances of the crime and the evidence of Woods’s
character, background, and personal moral culpability. In accordance with state
law, the trial judge sentenced Woods to death. On direct appeal, the Texas
Court of Criminal Appeals (“CCA”) affirmed Woods’s conviction and sentence.
See Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004). The Supreme Court
denied certiorari. See Woods v. Texas, 544 U.S. 1050 (2005).
      Woods then presented fifteen allegations challenging the validity of his
conviction and sentence in his application for state post-conviction relief. The
same state trial judge who had presided over Woods’s trial, Lee Gabriel,
considered Woods’s application for state habeas relief. Without holding an
evidentiary hearing, Judge Gabriel made seventeen pages of findings of fact and
made six conclusions of law, including the conclusion that Woods was not denied

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the effective assistance of counsel during any phase of the trial. Among the
findings of fact that the trial court made as to Woods’s claim that his counsel
rendered ineffective assistance during the punishment hearing were the
following:
1)    Based upon the credible affidavit of the government’s lead prosecutor,
      Michael Moore, the government had additional evidence that it could have
      presented to prove Woods was a future danger including evidence of bomb-
      making, sexual assault, documentation from mental hospitals that Woods
      hated society and was sadistic, school officials who could not testify to
      anything favorable or redeeming about the defendant, sexual abuse of his
      younger brother, escalating physical abuse of siblings and dogs, affiliation
      with white supremacists, theft, drug dealing, and that even Woods’s
      fiancée and her family would testify as to Woods’s negative character.
2)    Based upon the credible affidavits of Woods’s trial counsel, attorneys Parr
      and Adame, that trial counsel had hired Dr. Kelly Goodness, an expert
      witness, who interviewed Woods and reviewed his records. She declined
      to testify because in her professional opinion, she could not say that Woods
      was not a future danger, and no objective mitigation expert could credibly
      do so either.
3)    Based upon the credible affidavits of Parr and Adame, that trial counsel’s
      decision to present Robin Neely as an expert witness after only a review
      of Woods’s medical, school, juvenile, and family records constituted a
      sound strategy of trying to demonstrate Woods’s poor and neglected
      upbringing and the significance of this history in assessing Woods’s
      behavior.
4)    Based upon the credible affidavits of Parr, Adame, and Moore, that
      Woods’s mother, Cheryl Boyagian, was available to testify but that her
      discussion with Adame revealed that her testimony would hurt Woods’s

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          mitigation case, and thus trial counsel’s decision not to present Cheryl
          Boyagian constituted sound trial strategy.
5)        Based on credible affidavits of Parr and Adame, that Woods’s father,
          Steven Woods Sr., could not offer any evidence favorable or beneficial to
          Woods.
6)        Based on credible affidavits of Parr, Adame, and Moore, that trial counsel
          had full and complete knowledge of available mitigation evidence.
7)        Based upon the credible affidavits of Parr, Adame, and Moore, that the
          decision by trial counsel not to call family members and friends of Woods
          constituted a sound trial strategy after a conscious decision to avoid the
          proffer of damaging rebuttal evidence by the Government.
8)        Based upon credible affidavits of Parr, Adame, and Moore, and the
          evidence presented at trial, that the evidence of mitigation and future
          dangerousness that was      detrimental to Woods far outweighed the
          evidence favorable to Woods.
Accordingly, Judge Gabriel recommended that post-conviction relief be denied
because Woods failed to meet his burden of proof of counsel’s deficient
performance and harm. See Ex Parte Woods, 176 S.W.3d 224, 225 (Tex. Crim.
App. 2005).
          The CCA adopted the findings of fact and conclusions of law, and denied
relief.     Id.    For the ineffective-assistance-of-counsel claim for failure to
investigate mitigating circumstances, the CCA supplemented Judge Gabriel’s
findings of fact and legal conclusion with an extended discussion of why the
court was denying relief on this claim. The CCA noted that trial counsel had
conducted an investigation: “[T]hey spoke with applicant’s family members,
tracked down medical, psychological and school records, used expert witnesses,
and extensively interviewed applicant himself regarding potential mitigating
evidence.” Id. at 226. The CCA further noted that trial counsel had hired two

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expert witnesses, one of whom interviewed applicant extensively and fully
reviewed his social and medical history. The CCA found that after Dr. Goodness
stated she could not testify, trial counsel took her advice and hired another
expert to review Woods’s records without conducting a face-to-face interview. Id.
at 227.   The CCA gave credence to trial counsel’s assertion that given Dr.
Goodness’s opinion and advice, they made a strategic decision to present only an
objective, clinical opinion of an expert witness who could not be subject to a
cross-examination on her personal knowledge of Woods’s previous behavior.
      Additionally, the CCA held that the trial counsel’s decision not to
interview any potential mitigation witnesses other than the mother was based
on “‘reasonable professional judgments [supporting] the limitations on
investigation.’” Id. The CCA outlined the extensive amount of rebuttal evidence
the State was prepared to present if Woods’s attorneys were to call witnesses
who would testify as to personal knowledge of mitigating circumstances. The
CCA also found that the State had informed the defense that Woods’s
“stepfather, fiancee, and his fiancee’s family were willing to testify for the State
as to applicant’s anti-social, sadistic behavior and bad character.” Id. The CCA
found that it was a sound strategic decision not to interview or present witnesses
who could testify to mitigating circumstances, but who would also be subject to
cross-examination regarding their knowledge of Woods’s involvement in
Satanism, his bomb-making activities, and his abusive behavior toward animals
and loved ones. See id. Finding all this and that Woods himself was unwilling
to discuss mitigating evidence or the damaging information that State could
present, the CCA held that the applicant failed to prove that his attorneys
rendered ineffective assistance of counsel and thus denied relief.
      Woods then filed an application for habeas corpus in the U.S. District
Court for the Eastern District of Texas.        In a memorandum opinion and
unpublished order, the district court denied the first seventeen claims for relief

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in Woods’s application for habeas corpus, including the three claims in the
appeal before us, and dismissed with prejudice the eighteenth and final claim in
Woods’s application for a writ of habeas corpus. Woods, 2009 WL 2757181, at
*21. As to the claim at issue in the instant appeal, the district court assessed
Woods’s contentions that his defense counsel should have: (1) interviewed and
presented friends and acquaintances who could speak to his character and his
abused childhood; (2) more fully investigated and presented evidence of his
mental illness and neurological condition; and (3) interviewed and presented
family members who could speak to his background and character.
      As to the first claim, the district court noted that in addition to the
government’s disclosure of potential rebuttal evidence, the defense counsel had
discovered an online diary kept by one of Woods’s girlfriends that would paint
him in a less sympathetic light. Id. at *3. The district court noted that this
discovery likely gave credence to the prosecution’s disclosure that they had
numerous witnesses who could attest to defendant’s bad character, violence, and
bad acts. Id.
      As to the neurological claim, the district court noted that defense counsel
hired Dr. Kelly Goodness, a psychologist, and provided her with Woods’s
psychiatric records. Id. The district court found no indication that Dr. Goodness
told counsel that further investigation into his psychiatric conditions was
necessary.   Id.   Thus, the district court held that the state court was not
unreasonable in its conclusion that counsel’s decision not to seek further
neurological testing was not deficient performance. Id.
      However, the district court disagreed with the state court findings as to
whether counsel should have further investigated and called family members as
witnesses to Woods’s abused and dysfunctional upbringing. Id. at *5. The
district court pointed out in particular the testimony of Neely that Woods’s
mother interfered with Woods’s stepfather’s attempt to impose discipline by

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calling Child Protective Services on him for abuse. Id. The district court noted
that given counsel’s strategy to objectively demonstrate the extraordinarily poor
upbringing to which Cheryl Boyagian had exposed Woods, they should have at
least attempted to interview Woods’s siblings about alleged physical abuse they
suffered at the hands of their stepfather.            Id.    However, in assessing the
prejudice element of the Strickland–Wiggins test de novo, the district court
found that Woods had failed to prove prejudice because (1) it was unlikely that
defense counsel would have presented such evidence as it could have weakened
counsel’s defense that Woods’s mother was unfeeling and indifferent, and (2)
even if Woods’s brothers did testify, their testimony may not have been credible
given    that    Child    Protective   Services   had       found   the   charges   to   be
unsubstantiated.         Id. Accordingly, it denied relief as to this claim.
        Though it denied relief for all claims in Woods’s application, the district
court granted a COA on three issues. Woods has only raised the first issue in
this appeal. Thus, we consider only whether trial counsel rendered ineffective
assistance by failing to fully investigate and present certain mitigation evidence
during the punishment phase of Woods’s trial.
                                   II. DISCUSSION
        We find that the district court did not abuse its discretion in denying an
evidentiary hearing and affirm the district court’s decision to deny relief. We
address the merits of the ineffective-assistance claim first, then address Woods’s
procedural arguments for why the district court erred in its denial of an
evidentiary hearing.
A.      Ineffective Assistance of Counsel Claim
        1.      Standard of Review
        Because an ineffective assistance claim is a mixed question of law and fact,
we review the district court’s denial of habeas relief de novo. Ladd v. Cockrell,
311 F.3d 349, 357 (5th Cir. 2002) (citing Crane v. Johnson, 178 F.3d 309, 312

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(5th Cir. 1999). However, this habeas petition is governed by the standards
established by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”).    The 1996 amendments to 28 U.S.C. §2254 “circumscribe our
consideration of [Woods’s] claim and require us to limit our analysis to the law
as it was ‘clearly established’ by the precedents existing at the time of the state
court’s decision.” Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under AEDPA,
a federal court cannot grant habeas relief for any claim that was adjudicated on
the merits in state court proceedings unless the adjudication of the claim either
      (1) 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; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.
28 U.S.C. § 2254(d); see Wiggins, 539 U.S. at 520. “We review pure questions of
law under the ‘contrary to’ standard of subsection (d)(1), mixed questions of law
and fact under the ‘unreasonable application’ standard of subsection (d)(1), and
pure questions of fact under the ‘unreasonable determination of facts’ standard
of sub-section (d)(2).” Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000)
(citation omitted).
      Under subsection 2254(d)(1), a decision is contrary to federal law if the
state court (1) “arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law” or (2) “confronts facts that are materially
indistinguishable from relevant Supreme Court precedent and arrives at a result
opposite to [that precedent].” Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the “unreasonable application” clause of subsection 2254(d)(1), a federal
habeas court may grant relief if the state court (1) “identifies the correct
governing legal principle from [the Supreme] Court’s decisions but unreasonably
applies it to the facts of the particular state prisoner’s case,” (2) “unreasonably

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extends a legal principle from our precedent to a new context where it should not
apply,” or (3) “unreasonably refuses to extend that principle to a new context
where it should apply.” Id. at 407. Under the “unreasonable application” clause,
“the state court’s decision must have been more than incorrect or erroneous”;
“[t]he state court’s application must have been ‘objectively unreasonable.’”
Wiggins, 539 U.S. at 520–21 (citing Williams, 529 U.S. at 409); see also
Rompilla v. Beard, 545 U.S. 374, 380 (2005).
      In deciding whether to grant relief, we must presume that the state court’s
factual findings were correct unless Woods meets his burden of rebutting that
presumption by clear and convincing evidence. 28 U.S.C. § 2254(3)(1); Murphy,
205 F.3d at 813. “The presumption is especially strong when, as here, the state
habeas court and the trial court are one and the same.” Id. (citations omitted).
      2.    Analysis
      Claims of ineffective assistance of counsel are governed by Strickland v.
Washington’s two-part standard. 466 U.S. 668, 687 (1984). Under this standard,
Woods must show that (1) counsel’s performance was deficient, and (2) this
deficiency prejudiced the defendant.     Id.   For counsel’s performance to be
deficient, “the defendant must show that counsel’s representation fell below an
objective standard of reasonableness” as measured by “prevailing professional
norms.” Id. at 688. There is no checklist for judicial evaluation of attorney
performance.    Instead, the performance inquiry is on “whether counsel’s
assistance was reasonable considering all the circumstances” because no
checklist for counsel’s conduct “can take into account . . . the variety of
circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Id. at 688–89.
      Our assessment of counsel’s performance is “highly deferential.” Id. at
689. We make every effort to “eliminate the distorting effects of hindsight.” Id.
Because of the difficulties of such analysis, we recognize a “strong presumption

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that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy.” Id. (citation and quotation marks omitted). We will not find counsel’s
performance deficient “merely because we disagree with trial counsel’s strategy.”
Crane, 178 F.3d at 312.
      In a capital sentencing proceeding, “defense counsel has the obligation to
conduct a ‘reasonably substantial, independent investigation’ into potential
mitigating circumstances.” Neal v. Puckett, 239 F.3d 683, 688 (5th Cir. 2001)
(quoting Baldwin v. Maggio, 704 F.2d 1325, 1332–33 (5th Cir. 1983)). Like any
claim of ineffective assistance of counsel, we scrutinize the reasonableness of
counsel’s investigation in light of all relevant circumstances and give deference
to counsel’s decision to pursue a sound trial strategy. But in explaining how to
assess investigation choices in Wiggins v. Smith, the Supreme Court noted:
      “Strategic choices made after thorough investigation of law and
      facts relevant to plausible options are virtually unchallengeable;
      and strategic choices made after less than complete investigation
      are reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations
      unnecessary. In any effectiveness case, a particular decision not to
      investigate must be directly assessed for reasonableness in all
      circumstances, applying a heavy measure of deference to counsel’s
      judgments.”
Wiggins, 539 U.S. at 521–22 (quoting Strickland, 466 U.S. 690–91).
      Thus, the relevant inquiry here is not whether counsel had some evidence
to stop investigating, but rather (1) what evidence was already known to counsel,
and (2) based on the evidence available, would a reasonable attorney continue
to investigate or limit further investigation. Id.; see, e.g., Rompilla, 545 U.S. 374
(holding that counsel was ineffective for deciding to forgo looking at material


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that the prosecution would probably rely on even though interviews with the
capital defendant and members of his family suggested no mitigating evidence
was available). However, the Supreme Court has emphasized that “Strickland
does not require counsel to investigate every conceivable line of mitigating
evidence no matter how unlikely the effort would be to assist the defendant at
sentencing,” nor “does Strickland require defense counsel to present mitigating
evidence at sentencing in every case.”      Wiggins, 539 U.S. at 532.    Rather,
Strickland requires counsel to ensure their decisions to limit investigations are
supported by “reasonable professional judgment.” See id.
      In addition to proving counsel’s performance was deficient, the petitioner
must also show that counsel’s failure prejudiced his defense. Id. at 534. To
establish prejudice, the “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would be different.” Id. (citing Strickland, 466 U.S. at 694). A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Id. (citing Strickland, 466 U.S. 694). In assessing prejudice, we
reweigh the evidence in aggravation against the totality of available mitigating
evidence. Id. In reweighing this evidence, we consider all evidence adduced at
trial and at the habeas proceedings. Williams, 529 U.S. at 397–98. We may
approach the Strickland–Wiggins inquiry in any order; “a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697.

      In accordance with § 2254, we must determine whether the state court’s
application of the precedent from the Strickland–Wiggins line of cases to the
facts of this case was objectively unreasonable. We find that it is not. We agree
with the CCA that trial counsel exercised reasonable professional judgment in
deciding not to further interview or present Woods’s family members, friends,

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or acquaintances in light of the great amount of potentially harmful rebuttal
evidence the prosecution was ready to present. As to Woods’s contention that
trial   counsel   should    have   further    investigated    the    possibility   of
neuropsychological impairment, we find that Woods has failed to carry his
burden of proving prejudice. We address each of Woods’s contentions in turn.

        a.    Family, Friends, and Acquaintances as Potential Mitigation
              Witnesses

        Woods argues that trial counsel rendered ineffective assistance by failing
to interview or present family members, friends, and acquaintances who could
speak to his good character, his abuse- and neglect-filled upbringing, and his
background. After reviewing the state court’s opinions, we do not find the CCA’s
determination objectively unreasonable; we agree that trial counsel’s decision
not to present Woods’s mother as a witness or           interview Woods’s family
members, friends, and acquaintances was based on reasonable professional
judgment.

        In assessing whether counsel’s performance was deficient in Wiggins, the
Supreme Court found that trial counsel’s decision to stop investigation of the
defendant’s background for mitigation evidence was unreasonable. There, trial
counsel claimed that their decision to limit their investigation into the
defendant’s background to a review of the defendant’s pre-sentence investigation
report and Department of Social Services records reflected a strategic decision
not to present mitigating evidence, and instead to prepare and pursue an
alternative strategy. See Wiggins, 539 U.S. at 517. The Court held that this
decision was unreasonable because (1) standard practice required preparation
of a social history report; (2) the limited evidence trial counsel had revealed leads
to mitigating evidence of a horrible childhood filled with incidents of sexual and
physical abuse that any reasonable, competent attorney would have pursued;



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and (3) a thorough investigation of those leads “was necessary to making an
informed choice among possible defenses.”         Id. at 524–27.     The Court
underscored that unlike in cases where limited investigations were reasonable,
Wiggins’s “counsel uncovered no evidence in their investigation to suggest that
a mitigation case, in its own right, would have been counterproductive, or that
further investigation would have been fruitless.” Id. at 525.

      Unlike in Wiggins, where trial counsel had no evidence that a mitigation
case would have been counterproductive or that further investigation would have
been fruitless, id., the trial counsel here had been informed of an extensive
amount of rebuttal evidence that the State was prepared to present if they called
witnesses to speak on their personal knowledge of Woods’s good character and
dysfunctional upbringing. Much of this information was already documented in
the medical records, which counsel reviewed with Dr. Goodness. Given this
knowledge and Dr. Goodness’s professional opinion that no objective expert could
reach a conclusion that Woods did not pose a threat of future dangerousness,
trial counsel’s decision to limit their investigation and to refrain from
interviewing and presenting members of Woods’s family and circle of friends and
acquaintances was reasonable.      By pursuing a strategy of presenting the
objective, clinical opinion of Robin Neely after a review of only paper records,
Woods’s attorneys were still able to introduce testimony about Woods’s
dysfunctional and abused upbringing without the possibility of witnesses being
cross-examined on their personal knowledge of the defendant’s bad character,
traits, or acts. Thus, they were able to avoid extended questioning on Woods’s
involvement in Satanism, bomb-making activities, abuse of animals and his
brothers, affiliation with white supremacists, and drug dealing.

      The district court found trial counsel’s performance deficient because they
did not interview Woods’s brothers to substantiate accounts that Woods had


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suffered abuse from his stepfather. We disagree. This contention was well-
documented in the Havenwyck and St. Joseph medical records, which Robin
Neely reviewed before her testimony. Trial counsel had reviewed the medical
records extensively with their expert witnesses and crafted a strategy to portray
Boyagian as a self-centered, uncaring mother who missed counseling
appointments and failed to regularly visit Woods when hospitalized.          As the
district court points out in its prejudice analysis, investigating Woods’s mother’s
calling of CPS would have run counter to trial counsel’s strategy and may not
have been fruitful in proving the stepfather’s abusive nature given that CPS
found the allegations to be unsubstantiated. Woods, 2009 WL 2757181, at *5.
Given that we must be “highly deferential” in our assessment of counsel’s
performance, Strickland, 466 U.S. at 689, we do not find counsel’s performance
deficient “merely because we disagree with trial counsel’s strategy.” Crane, 178
F.3d at 312.

      Additionally, we also agree with the state court that trial counsel’s
decision not to present Woods’s mother or biological father was the result of
reasonable professional judgment and adequate investigation. The senior Mr.
Woods repeatedly refused to testify and stated that he always knew his son
would end up in some kind of trouble. Cheryl Boyagian refused to cooperate with
trial counsel’s strategy to present her as a bad mother because she believed she
was a good mother who did the best she could. Furthermore, as Adame and
Moore state in affidavits found credible by the state courts, Boyagian told Adame
that, “‘if [Woods] did it, then he deserves what he gets’” and that “‘he got himself
into this mess, he’s got to get himself out.’” No reasonable attorney would want
their witness to make statements such as those made by Woods’s parents in
front of the jury.




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                                  No. 09-70027

      Given that we agree with the state courts that trial counsel was effective
in their performance during the punishment phase, we do not reach the
prejudice prong. Because we find that the CCA was reasonable in determining
that these were strategic decisions based on reasonable professional judgment,
we find that its determination of these contentions is not objectively
unreasonable.

      b.    Neuropsychological Evidence

      Woods also contends that trial counsel should have investigated and
presented an explanation of Woods’s behavioral and addiction problems from a
psychiatric/psychological perspective. Given his well-documented history of
polysubstance abuse, head injury, and possible family history of mental illness,
he argues that neuropsychological evaluation was warranted. He argues that
such an approach could have clarified for the jury that his substance abuse
problems and behavior were medical issues rather than moral failings. After
reviewing the state court proceedings and the evidence in the record, we cannot
determine whether trial counsel’s performance was sufficient or deficient, but
we find that the defendant has failed to prove that he was prejudiced by
counsel’s decision not to pursue a neuropsychological explanation of his
addictions or his behavior. Thus, we do not find the state court’s legal conclusion
that there was no ineffective assistance of counsel objectively unreasonable.

      The district court rejected Woods’s argument regarding the investigation
and presentation of neuropsychological evidence after noting that there was no
indication that Dr. Kelly Goodness, a licensed psychologist, told counsel that
further investigation into his psychiatric conditions was necessary. Thus, it held
that it could not find that the state court was unreasonable in its conclusion that
counsel’s decision not to seek further neurological and mental health testing was
not deficient performance. However, in our review of the state court’s findings


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                                   No. 09-70027

and legal conclusions and the record itself, we cannot say that we are convinced
by the district court’s reasoning. The state court trial judge, Judge Gabriel,
made no specific finding of fact on why counsel decided not to pursue a
neurological examination. The state court judge seems to have dispensed with
this line of argument with his finding that any remaining contested issues were
inconsequential because counsel’s decision not to present evidence other than the
testimony of Neely constituted sound trial strategy. The CCA opinion did not
specifically discuss Woods’s neuropsychological contention either. Spending
most of its opinion discussing why interviews and presentation of family
members and friends as potential mitigation witnesses were not necessary given
the defense’s sentencing strategy, the CCA merely states that “[w]hen an
attorney opens Pandora’s box, he is not constitutionally required to examine
each and every disease, sorrow, vice, and crime contained therein before quietly
and firmly closing the cover.” Ex Parte Woods, 176 S.W.3d at 228.

      It is not clear from the record or trial counsel’s affidavits whether counsel’s
decision not to pursue this line of strategy was the result of reasoned judgment
as required by Wiggins. The files from the Woods’s stays at Havenwyck and St.
Joseph Mercy document an extensive history of: substance abuse, including
alcohol, marijuana, LSD, heroin, cocaine, speed, mushrooms, opiates, and
ecstacy; diagnoses of depression, attention deficit disorder, and traits of
borderline personality disorder; strong family history of substance abuse;
possible history of bipolar disease on his father’s side; and a history of frequent
migraines. These indicators clearly necessitate some investigation.

      It is undisputed that trial counsel hired Dr. Goodness to review these files
and interview the patient. However, it is unclear whether Dr. Goodness’s review
included a determination of whether further neuropsychological testing or
investigation was necessary or would be fruitless. Dr. Goodness stated that, in


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                                   No. 09-70027

her professional judgment, she could not testify that Woods was not a future
danger; but, there is no indication that her review included an evaluation of
whether Woods had a neurological or psychological impairment such that it
would have altered his past behavior. A copy of Dr. Goodness’s report is not in
the record. Neither Parr nor Adame’s affidavits identify why they chose not to
pursue neurological testing or a mental health evaluation despite the fact that
trial counsel’s billing records show that at one time early in sentencing
preparation they phoned a neurological testing facility. If trial counsel’s decision
to stop this line of investigation was motivated by an opinion or a piece of advice
given by Dr. Goodness, counsel’s performance would have been the result of
reasoned judgment and thus sufficient. However, if the counsel had no reasoned
basis to cease this line of investigation, it would have been deficient
performance. Given the paucity of information in the state court opinions and
the record on counsel’s motivations in deciding not to pursue neuropsychological
evaluation, we cannot say whether counsel’s decision was sufficient or deficient
performance.

      However, even assuming, arguendo, that counsel’s performance was
deficient, we find that Woods has failed to carry his burden of proving that the
alleged deficiency prejudiced his defense.        In reweighing the totality of
mitigating evidence, including the neuropsychological evidence that the
petitioner argues should have been presented to the jury, against the
aggravating evidence, we do not find that there is a reasonable probability that
the outcome would have been different. See Wiggins, 539 U.S. at 534.

      Woods argues that Supreme Court precedent in Cone v. Bell, 129 S.Ct.
1769 (2009), requires the courts to focus upon the possible effect of the evidence
upon each individual juror rather than focus on the jury as a whole. We agree




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                                       No. 09-70027

and conduct the prejudice inquiry with the juror-agreement thresholds in mind.1
Under Texas state law, there are three special issues that must be addressed
before the death penalty can be imposed: (1) after consideration of all the
evidence, including evidence of the defendant’s background, character, or the
circumstances of the offense, that there were sufficient mitigating circumstances
to warrant a sentence less than death; (2) whether there is a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society; and (3) whether the defendant actually caused the
death of the deceased, intended to kill the deceased, or anticipated that human
life would be taken. T EX. C ODE C RIM. P ROC. art. 37.071 § (2)(b). To return an
answer of “no” to the first issue and “yes” to the last two issues, the jury must be
unanimous. T EX. C ODE C RIM . P ROC. art. 37.071 § (2)(d), (f). Thus, we conduct
this prejudice inquiry to see whether the totality of the mitigating evidence,
including the neuropsychological evidence, reweighed against the aggravating
evidence would be sufficient to persuade one or more jurors to vote ‘no’ on each
of these special issues.

       The mitigation evidence that the petitioner argues should have been
investigated and introduced is that (1) his drug addiction may have had short-



       1
         In Cone, the jury was statutorily required to consider whether Cone’s “‘capacity . . .
to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements
of the law was substantially impaired as a result of mental disease or defect or intoxication
which was insufficient to establish a defense to the crime but which substantially affected his
judgment.’” Cone, 129 S.Ct. at 1786 (citing TENN .CO D E . ANN . § 39-2-203(j)(8) (1982)
(repealed)). Under Tennessee law, the imposition of the death penalty required a unanimous
finding by the jury that the state had proved beyond a reasonable doubt that there was at least
one statutory aggravating circumstance not outweighed by the mitigating evidence. Bell v.
Cone, 535 U.S. 685, 691 (2002) (citing TENN . CODE . ANN . § 2-204 (1982) (repealed)). The
Supreme Court, therefore, found that the district court and the Sixth Circuit did not fully
consider whether the suppressed evidence might have persuaded one or more jurors that
Cone’s drug addiction attributable to honorable military service was sufficiently serious to
justify a punishment of life imprisonment. Cone, 129 S.Ct. at 1786.


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                                      No. 09-70027

term and long-term effects on his brain chemistry, affecting his behavior and
cognition; (2) his drug abuse may have exacerbated his already imbalanced
nervous system from his bipolar disorder; and (3) his polysubstance addiction
problems, psychological disorders, and resulting behavioral problems may have
resulted from genetic factors.2      Certainly, this type of information could have
been mitigating if true. See, e.g., Porter v. McCollum, 130 S.Ct. 447, 454 (2009)
(finding that evidence of poor mental health or mental impairment, in addition
to other mitigating evidence, could influence a jury’s appraisal of defendant’s
moral culpability); see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
(“[E]vidence about defendant’s background and character is relevant because of
the belief . . . that defendants who commit criminal acts that are attributable to
. . . emotional or mental problems . . . may be less culpable than defendants who
have no such excuse.”), abrogated on other grounds by Atkins v. Virginia, 536
U.S. 304 (2002). This evidence would have been in addition to the mitigating
testimony given by Robin Neely, who described Woods’s turbulent upbringing.

       However, the problem with this type of evidence is that it can also be used
as evidence of a probability of future dangerousness. One whose brain chemistry
has been altered by prolonged substance abuse or who suffers from a mental
disease because of a genetic predisposition would likely continue to pose a
probability of future dangerousness.3            This would have undermined trial


       2
        This expert opinion was provided by Dr. Paula Lundberg-Love, a licensed professional
counselor and psychological associate in the state of Texas. Dr. Lundberg Love reviewed the
testimony during the punishment phase and the materials collected by Woods’s post-conviction
team.
       3
        Woods’s trial counsel, Adame, acknowledges a very similar line of reasoning when he
discusses another potential line of mitigation testimony he had considered. Based on Woods’s
statements to him that he had been awake for fourteen days and high on methamphetamines
and a cocktail of other drugs when the murders of Whitehead and Brosz occurred, Adame
considered having Woods testify to the fact that he was not in his right mind when the
murders occurred. Adame stated that Woods refused to testify, thereby preventing
consideration of this mitigation strategy. However, Adame added that though this evidence

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                                      No. 09-70027

counsel’s strategy to present Woods as someone who would not be a future
danger once he did not have access to drugs and was shown for the first time
that actions have consequences, unlike when he had nearly unrestricted access
to drugs and did not experience any discipline growing up with his mother.4
Furthermore, the prosecution likely would have hired a mental health expert to
examine Woods and potentially unearthed further aggravating evidence. See
Mot. for Access, Clerk’s R. vol. 1, at 20 (requesting that state trial court grant
a fair opportunity to have a mental health expert examine Woods prior to
testimony of any defense mental health expert testifying before jury). Such
evidence could have included some of the incidents documented in the
Havenwyck and St. Joseph’s psychiatric records—bomb-making activities, abuse
of younger siblings, statements evidencing sadistic and society-hating thoughts,
inappropriate forcible touching of others, and “devil worship.”

       Additionally, the aggravating evidence presented by the prosecution was
great. The government sought to prove a probability of future dangerous by
presenting evidence that Woods had been involved in the murder of another
victim and potentially considered murdering another woman, planned to rob a
clothing store, made bombs in the past, and got into a fight with another inmate
in the Denton County Jail. The prosecution also presented testimony from the
victims’ families to demonstrate the impact the murders had on their families,
and testimony from a nurse who graphically described the nature of Brosz’s



would have been mitigating, it also “could certainly be used against [Woods] to prove future
dangerousness, since anyone who could get that high and kill two people must certainly be
considered a future danger.” Adame Aff., Post Conviction Habeas Corpus R. at 572.
       4
        In his closing statement during the punishment-determination hearing, Adame stated
that Woods was no longer a future danger since he (1) no longer had access to drugs; (2) was
incarcerated with no freedom; and (3) was disciplined by the jury when it convicted him of
capital murder. Adame argued that the conviction was a turning point and that Woods no
longer posed a probability of being a continuing threat.

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                                  No. 09-70027

injuries, including the fact that Brosz’s mother saw her “daughter’s brains
coming out from underneath the dressing . . . .” Trial. Tr. vol. 24, 77, August 19,
2002. Given the great amount of aggravating evidence and the double-edged
nature of the neuropsychological evidence, we do not find that Woods has
demonstrated that there was a reasonable probability that the outcome would
have been different had the evidence been investigated and introduced.

      Thus, we cannot find the state trial court’s decision not to grant habeas
relief for the ineffective-assistance-of-counsel claim objectively unreasonable.
Accordingly, habeas relief cannot be granted on this claim.

B.    Denial of Evidentiary Hearing

      Woods argues that the district court erred in denying his motion for an
evidentiary hearing because (1) the state court fact-finding process, with its
reliance solely on affidavits and trial testimony rather than an evidentiary
hearing, was procedurally unreasonable such that it did not comport with
minimal due process requirements, and (2) apart from the procedural due
process requirements, there are too many unresolved factual conflicts,
inconsistencies, and unexamined issues in conflicting affidavits such that the
findings and resulting conclusions of law are themselves substantively
unreasonable. We disagree.

      Under AEDPA, requests for evidentiary hearings are to be evaluated
under the provisions of subsection 28 U.S.C. § 2254(e)(2). Where the habeas
petitioner has failed to develop the factual basis of his claim due to his lack of
diligence, he is only entitled to an evidentiary hearing if the applicant can show
(1) that his claim relies on “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable” or “a factual predicate that could not have been previously
discovered through the exercise of due diligence,” and (2) the facts underlying


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                                   No. 09-70027

the claim are “sufficient to establish by clear and convincing evidence that but
for constitutional error, no reasonable fact finder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). These exceptions,
however, are only applicable when the failure to develop the factual basis is a
result of the petitioner’s lack of diligence. Murphy v. Johnson, 205 F.3d 809, 815
(5th Cir. 2000); McDonald, 139 F.3d at 1059. Where the failure to develop the
factual basis of the claim in state court is not due to the petitioner’s actions, the
district court retains discretion over the decision to grant an evidentiary
hearing. Murphy, 205 F.3d at 815; McDonald, 139 F.3d at 1059–60. In such
cases, we review a district court’s denial of an evidentiary hearing for abuse of
discretion. Murphy, 205 F.3d at 815.

        The government argues that Woods is not entitled to an evidentiary
hearing under §2254 (e)(2) because Woods cannot demonstrate he was diligent
in his attempt to investigate and pursue his claims in state court. Woods,
however, notes that the failure to develop the factual basis of his claims in state
court was not his own, but rather the result of the state courts denying him an
evidentiary hearing. We agree with Woods, and thus review the district court’s
denial of an evidentiary hearing for an abuse of discretion.

        Both before AEDPA and after, we have consistently held that “when there
is a factual dispute which if resolved in the petitioner’s favor, would entitle the
petitioner to relief and the state has not afforded the petitioner a full and fair
hearing, a federal habeas corpus petitioner is entitled to discovery and an
evidentiary hearing.” Murphy, 205 F.3d at 815 (quoting Perillo v. Johnson, 79
F.3d 441, 444 (5th Cir. 1996)) (internal quotation and alteration omitted); see
also    Moawad v. Anderson, 143 F.3d 942, 947–48 (5th Cir. 1998); Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994). Thus, to find an abuse of discretion
that would entitle Woods to an evidentiary hearing, “we must find that the state


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                                       No. 09-70027

did not provide him with a full and fair hearing and we must be convinced that
if proven true, his allegations would entitle him to relief.” 5 Murphy, 205 F.3d at
816 (citation omitted) (emphasis added).

       Woods argues that the district court should have granted him an
evidentiary hearing since the state court fact-finding process was procedurally
defective because it relied only on paper records rather than a full trial-like
hearing on the factual issues underlying his claim. Woods argues that without
“direct testimony by witnesses, subject to cross-examination in order to resolve
inconsistencies and ambiguities of their testimony, the state habeas court was
not in a position to make reliable determinations of the relevant facts to the
claim.”    He further argues that since the fact-finding procedures were
“inherently unreliable,” the state courts’ conclusions of law were rendered
unreasonable. Thus, he argues that the district court’s reliance on the state
findings of fact and conclusions of law made its decision to deny habeas corpus
an unreasonable application of precedent.

       We disagree with Woods’s assertion that he did not receive a full and fair
hearing in the state habeas proceedings. Before and after AEDPA, this Court
has “repeatedly found that a paper hearing is sufficient to afford a petitioner a
full and fair hearing on the factual issues underlying his claims, especially where
as here, the trial court and the state habeas court were one and the same.”
Murphy, 205 F.3d at 816 (citing Perillo, 79 F.3d at 446–67 (listing cases where


       5
         This opinion does not in any way invalidate or modify the precedent set forth in
Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). In that case, this Court held that a full and
fair hearing was not a precondition to according a presumption of correctness to state habeas
court findings of fact. Id. at 950–51. This precedent still stands. We merely state here that
in circumstances not barred by § 2254(e)(2), a defendant is entitled to an evidentiary hearing
to determine whether the state court reached an unreasonable determination under § 2254
where (1) the state court proceedings were less than full and fair, and (2) where the defendant
has made allegations that would entitle him to relief. Thus, for a finding that a district court
abused its discretion in denying an evidentiary hearing, the petitioner must prove both prongs.

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                                   No. 09-70027

presumption of correctness was established with only a paper hearing before the
same state judge who presided over the criminal trial)) (emphasis added); see
also Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002).

      Here, the state court judge who considered Woods’s application for state
habeas relief had also served as the trial judge over both the innocence–guilt
phase and the punishment phase of Woods’s trial. He was familiar with the
parties, counsel, and the evidence presented at trial; thus he was uniquely
qualified to make a credibility determination as to the veracity of the trial
counsel’s affidavits.   Additionally, he and the CCA had the defendant’s
application, the state’s response, and several hundred pages of affidavits, record
evidence, and exhibits that had been filed in support and opposition to Woods’s
claims for review. Given the state trial judge’s familiarity with the parties, their
arguments, and the evidence, we cannot say that Woods did not receive a full
and fair hearing in the state habeas proceedings. Thus, we find that the district
court did not abuse its discretion in denying Woods an evidentiary hearing.

                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the decision of the district court.

      AFFIRMED.




                                        26
