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

                                                 FILED
                                                                            July 20, 2009

                                       No. 08-70013                    Charles R. Fulbruge III
                                                                               Clerk

MICHAEL ADAM SIGALA,

                                                   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 Eastern District of Texas, Texarkana Division
                              USDC No. 5:05-CV-177


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Texas state prisoner Michael A. Sigala filed a federal petition for a writ of
habeas corpus seeking to vacate the death sentence he received following his
conviction for capital murder. The district court denied Sigala the writ, but
granted a certificate of appealability on three issues. After careful review of the
record and applicable law, and following oral argument, we affirm the judgment
of the district court denying the petition.


       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                  No. 08-70013

                       I. FACTS AND PROCEEDINGS
      Sigala’s guilt is not at issue in this appeal. A state jury convicted Sigala
of capital murder for causing the death of Kleber Dos Santos during a home
invasion. Sigala also murdered and sexually tortured Kleber’s wife, Lilian Dos
Santos, during the same episode.         Following a one-week post-conviction
punishment trial, the jury found that there was a probability that Sigala would
commit acts of criminal violence and constitute a continuing threat to society,
and that there were not sufficient mitigating circumstances to warrant a
sentence of life imprisonment rather than death. In accordance with Texas law,
the state trial judge then sentenced Sigala to death.
      Sigala filed a direct appeal with the Texas Court of Criminal Appeals,
which affirmed his conviction and sentence. Sigala v. State, 2004 WL 231326
(Tex. Crim. App. Jan. 14, 2004) (unpublished). After the United States Supreme
Court denied certiorari, Sigala v. Texas, 542 U.S. 909 (2004), Sigala petitioned
the Texas state court for collateral relief. The state trial court issued proposed
findings of fact and conclusions of law and recommended denying relief. By per
curiam order, the Texas Court of Criminal Appeals adopted the trial judge’s
findings and conclusions and denied relief. Ex parte Sigala, No. 62,283-01 (Tex.
Crim. App. Aug. 31, 2005).
      Sigala timely filed a federal petition for a writ of habeas corpus. The
federal district court denied relief, Sigala v. Quarterman, No. 5:05-CV-177 (E.D.
Tex. Mar. 28, 2008), but granted a certificate of appealability (COA) on three
claims. These claims, characterized by the district court as Claims II, III, and
IX, allege, respectively, violations of Sigala’s right to individualized sentencing,
ineffective assistance of counsel in preserving that right, and ineffective
assistance of counsel in developing and investigating mitigating factors at
sentencing. This appeal followed.



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                                II. DISCUSSION
A. Standard of Review
      1. The Anti-Terrorism and Effective Death Penalty Act of 1996
      Because Sigala filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254, review of his petition is governed by the procedures and standards
provided therein. See Parr v. Quarterman, 472 F.3d 245, 251–52 (5th Cir. 2006).
When a state court has adjudicated a prisoner’s claim on the merits, we must
defer to the state court and deny the prisoner’s habeas claim unless the state
court’s adjudication of the claim
      (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.

§ 2254(d)(1)–(d)(2). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme
Court clarified these provisions. Justice O’Connor wrote in her majority opinion
that a state court’s decision
      will certainly be contrary to [the United States Supreme Court’s]
      clearly established precedent if the state court applies a rule that
      contradicts the governing law set forth in our cases . . . [or] if the
      state court confronts a set of facts that are materially
      indistinguishable from a decision of this Court and nevertheless
      arrives at a result different from our precedent.

Id. at 405–06.
      2. Review of claims not decided on the merits by the state court
      AEDPA standards do not apply, however, where a federal court reviews
the denial of a claim on procedural grounds because in such cases there has not
been an “adjudication on the merits” by the state court within the meaning of

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AEDPA with respect to such a claim. Hughes v. Quarterman, 530 F.3d 336, 340
(5th Cir. 2008), cert. denied, 129 S. Ct. 2378 (2009). We review conclusions by
the district court that the petitioner procedurally defaulted on a claim de novo.
Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005).
B. Claim II: Right to Individualized Sentencing under Lockett               Sigala argues
that his Eighth Amendment right to individualized sentencing in the capital
context, first articulated in Lockett v. Ohio, 438 U.S. 586, 604–05 (1978)
(plurality opinion), was violated. “[T]he Eighth and Fourteenth Amendments
require that the sentencer . . . not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting
Lockett, 438 U.S. at 604). The focus of Sigala’s Lockett claim is the trial court’s
ruling regarding the admission of the testimony of a psychiatrist, Dr. Laura
Slaughter,1 and his medical records.
      1. Limitations on psychiatric testimony and medical records
      The state filed a pretrial motion requesting that the court order Sigala to
submit to a psychiatric examination by the state’s expert on his future
dangerousness if he sought to present testimony on the subject. The court
conducted a voir dire hearing of Dr. Slaughter, whose testimony Sigala sought
to present. Sigala’s trial counsel complained that the jury ought to be permitted
to hear her testimony without his client’s having to submit to examination by the
state’s expert, risking self-incrimination.         Counsel’s theory was that Dr.
Slaughter “is a fact witness in this case. . . She was not hired by Mr. Brewer or
myself on behalf of Mr. Sigala.” The trial court granted the state’s motion over
Sigala’s objection. In the wake of the trial court ruling, Sigala declined to submit

      1
        Sigala met with Dr. Slaughter four times in sessions lasting approximately fifteen
minutes each during his time in custody at the Collin County Detention Center.

                                            4
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to the examination of the state’s expert. Accordingly, the trial court permitted
Dr. Slaughter to testify to “(1) the fact that she ordered the dispensing of certain
medications; (2) the names of those medications but not their purpose; (3) the
number of times she met with appellant; and (4) the fact that appellant never
caused her any problems.” Sigala, 2004 WL 231326, at *9. Dr. Slaughter then
testified to these facts. The trial court also ordered the defense to redact the
portion of the medical records from the jail that contained the diagnosis by Drs.
Shoop and Slaughter that Sigala had bipolar disorder.
      Claim II (and Claim III, indirectly) requires us to determine whether this
ruling narrowed the scope of Dr. Slaughter’s testimony and Sigala’s records in
a way that violated Sigala’s constitutional right to individualized sentencing
under Lockett. In his brief, Sigala characterizes the part of Dr. Slaughter’s voir
dire testimony that he was not permitted to present to the jury as follows:
            Dr. Laura Slaughter testified that her predecessor, Dr.
      [James] Shoop, had been a contract, governmental employee,
      working at the County Detention Center. One of his patients had
      been Mr. Sigala. When the contract terminated, Dr. Slaughter took
      over the duties and patients of Dr. Shoop.
            Like Dr. Shoop, Dr. Slaughter also had been a contract,
      governmental employee, working at the Collin County Detention
      Center . . . . Dr. Slaughter had been Mr. Sigala’s treating physician
      while he was detained in the Collin County Detention Center. Dr.
      Slaughter saw Mr. Sigala on four occasions. As a treating
      physician, Dr. Slaughter had diagnosed Mr. Sigala as having a
      history of mental illness, and she had treated him for bipolar
      disorder, depression and sleep problems related to that disorder.


Sigala also complains he was not able to present the following portion of Dr.
Slaughter’s voir dire testimony regarding bipolarity:
      Bipolar disorder is a mood disorder. It’s also called manic
      depressive disorder, and it’s characterized by episodes of a very
      high, often irritable, expansive mood that can be accompanied with
      things like impulsive behavior, disturbed sleep, decreased need for


                                         5
                                         No. 08-70013

      sleep, rapid speech, those types of things. Those are manic episodes.
      And then there’s also separate depressive episodes which are low,
      depressed, sad moods that also have sleep/appetite disturbances.

Dr. Slaughter further testified that “the actual mood episodes can clear up on
their own, but they tend to be recurring throughout the person’s life.” She also
stated that she adopted Dr. Shoop’s findings, records, and interviews in her
treatment of Sigala.
      The significance Sigala attaches to the trial court’s ruling is that the court
prevented Dr. Slaughter “from testifying as to her and Dr. Shoop’s diagnoses of
Mr. Sigala’s mental illness and its symptoms, and [wrongly] order[e]d that Dr.
[Mark] Cunningham, a defense forensic psychologist, could not use the redacted
information to form his opinion about Mr. Sigala.”2
      2. Collateral review of the trial court’s order
      As discussed supra, Sigala attacks the state trial court’s ruling on Dr.
Slaughter’s testimony and his medical records on grounds that it denied him the
right to present “any relevant mitigating evidence” as part of the Eighth
Amendment individualized sentencing determination to which he was entitled
under Lockett. The Texas Court of Criminal Appeals, on habeas review, found
that Sigala had procedurally defaulted on this claim because he failed to raise
it both at trial and in his direct appeal. It also found that this failure did not
render Sigala’s trial counsel constitutionally ineffective because Sigala failed to
demonstrate that the trial court’s order violated his rights under Lockett. Ex
parte Sigala, slip op. at 6 (“[C]ounsel will not be found ineffective for failing to
preserve an alleged error where the law was nonexistent or not definitive at the
time of trial. . . . Appellate counsel is not required to present frivolous or futile
claims or even every colorable claim.”) (citing Vaughn v. State, 931 S.W.2d 564,



      2
          For a discussion of the effect of this ruling, see note 3, infra.

                                                 6
                                  No. 08-70013

568 (Tex. Crim. App. 1996) (per curiam), Jones v. Barnes, 463 U.S. 745, 751–754
(1983)). Finally, the court rejected the Lockett claim (Claim II) on the merits,
holding that any error by the trial court in limiting the testimony of Dr.
Slaughter and the admission of Sigala’s medical records was harmless. In his
federal habeas petition, Sigala renews his Lockett claim.
      As an initial matter, we must decide whether the Texas Court of Criminal
Appeals’ alternative holdings constituted rulings on the merits or on procedural
grounds. “[T]he rule in this circuit is that, when a state court bases its decision
upon the alternative grounds of procedural default and a rejection of the merits,
a federal court must, in the absence of good ‘cause’ and ‘prejudice,’ deny habeas
relief because of the procedural default” rather than reevaluating the claim on
the merits. Hughes v. Dretke, 412 F.3d 582, 592 (5th Cir. 2005) (quoting Cook
v. Lynaugh, 821 F.2d 1072, 1077 (5th Cir. 1987)). Because procedural default
does not constitute an “adjudication on the merits” for AEDPA purposes, the
state court’s finding of procedural default itself is reviewed de novo, however.
Valdez v. Cockrell, 274 F.3d 941, 946–47 (5th Cir. 2001). In his brief to this
court, Sigala does not dispute that his trial counsel procedurally defaulted on the
Lockett claim (Claim II). Accordingly, we must examine whether Sigala can
establish “good ‘cause’” and “prejudice” to excuse the default. Hughes, 412 F.3d
at 592.
      As good cause for the default, Sigala cites the ineffective assistance of his
trial counsel. This argument necessarily brings his Lockett claim back within
AEDPA’s reach, however: as we discuss infra, the state court did adjudicate, on
the merits, the claim (Claim III) that Sigala’s counsel was ineffective in failing
to raise his Lockett claim; it rejected it. Under AEDPA, then, this court, like the
district court, must defer to the state court’s findings on Claim III unless they




                                        7
                                       No. 08-70013

violate § 2254(d). For the reasons explained in Part II.C., we find they do not
violate that provision.3
C. Claim III: Sixth Amendment Claim of Ineffective Assistance as Grounds for
Procedural Default on Lockett Claim (Claim II)
       In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established a two-prong test for claims of ineffective assistance of counsel under
the Sixth Amendment.             To prevail on such a claim, a petitioner must
demonstrate both that “(1) counsel’s performance was deficient [“cause prong”]
and (2) counsel’s deficient performance caused actual prejudice to the petitioner’s
defense [“prejudice prong”].” Richards v. Quarterman, 566 F.3d 553, 564 (5th
Cir. 2009) (citing Strickland, 466 U.S. at 687). To meet the cause prong, Sigala
must establish that his counsel’s actions were objectively unreasonable.
Strickland, 466 U.S. at 687–91. “[A] showing that the factual or legal basis for
a claim was not reasonably available to counsel, or that some interference by


       3
          Because we hold that Sigala has failed to demonstrate good cause for his default, we
need not reach the prejudice analysis. However, we agree with the state court that any error
by the trial court was harmless and without prejudice to Sigala.
        Sigala complains that Dr. Slaughter was not able to testify to the conclusions she and
Dr. Shoop, her predecessor in treating Sigala, reached after treating Sigala. But his counsel
cross-examined the state’s expert, Dr. Lisa Clayton, on that very subject. Specifically, Sigala’s
counsel elicited from Dr. Clayton that she had trained Dr. Slaughter, and that she thought Dr.
Slaughter was a good psychiatrist. Sigala’s counsel admitted Sigala’s medical records
(Defendant’s Exhibit 4), into evidence, and asked Dr. Clayton about them. Dr. Clayton
testified, on the basis of those records, that Dr. Slaughter had diagnosed him as bipolar. She
then explained what bipolar meant. She further stated that two psychiatrists had diagnosed
Sigala as bipolar and had also prescribed medication for him. She explained what that
medication did, specifically its effect on controlling a person’s urges. Although she noted all
these things, Dr. Clayton said she simply disagreed with Dr. Slaughter’s (and Dr. Shoop’s)
diagnosis.
        At closing argument, Sigala’s counsel revisited this issue, arguing: “And look at the
evidence. Dr. Clayton, again, what did she say? I had her review the records from the Collin
County jail. Two psychiatrists have seen Michael and diagnosed him as bipolar, put him on
medication to treat that disease, that mental illness, but to her that was just a big waste.
Those two psychiatrists were wrong. She never even looked at those records.”
        Given that Sigala’s counsel succeeded in admitting all this evidence, to say that
limiting Dr. Slaughter’s testimony was not merely error, or constitutional error, but that it
would probably have resulted in a different outcome, is untenable.

                                               8
                                     No. 08-70013

officials made compliance impracticable, would constitute cause under this
standard.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations and quotation
marks omitted). To meet the prejudice prong, he must demonstrate that there
is a reasonable probability that the result in the case would have been different
had his counsel performed reasonably. Strickland, 466 U.S. at 692–96.
      Sigala’s ineffective assistance claim was decided on the merits by the state
court. Accordingly, AEDPA governs. To prevail on Claim III, therefore, Sigala
must show that the rights he claims were ineffectively represented were “clearly
established” at the time his conviction became final. § 2254(d)(1).
      In rejecting Sigala’s ineffective assistance claim on the merits, the Texas
Court of Criminal Appeals held that “[t]rial counsel was not ineffective for failing
to lodge an Eighth Amendment objection” because Sigala had not demonstrated
that his Lockett rights had been violated.           Ex parte Sigala, slip op. at 6.
“[C]ounsel will not be found ineffective,” the court found, “for failing to preserve
an alleged error where the law was nonexistent or not definitive at the time of
trial.” Id.
      Although his post-trial proceedings are now in their eighth year, Sigala
remains unable to substantively allege that his Lockett claim, had it been timely
raised and developed, was “clearly established” at the time his conviction became
final (or even whether it is today). He points to several decisions of the Texas
Court of Criminal Appeals in other cases and a secondary source 4 that he claims
distinguish between the testimony of a treating physician and that of a
psychiatric expert retained for litigation. Because the state court’s decision on
Claim III was on the merits, AEDPA requires that we defer unless the state
court decision conflicts with United States Supreme Court precedent. See §


      4
          Dexter E. Gilford, Constructive Waiver and Compelled Defendant Interviews:
Understanding the Lagrone Doctrine and Implementing Strategies for Limiting its Effect part
one, VOICE FOR THE DEFENSE , Mar. 2006, at 14, 19.

                                            9
                                       No. 08-70013

2254(d)(1) (challenged state court ruling must have constituted “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” in order
for federal court to grant habeas) (emphasis added). Decisions of the Texas
courts in other cases, even if they were on point, plainly would not satisfy this
requirement.
       In addition to the secondary source and Texas Court of Criminal Appeals
precedents, Sigala claims that Lockett and other United States Supreme Court
decisions support overturning the state court’s decision regarding Claim III. A
state court’s decision is contrary to Supreme Court precedent, and thus habeas
may be granted by a federal court in an AEDPA case, if (1) “the state court
arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law,” or (2) “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [that of the Supreme Court].” Williams, 529 U.S. at 405.
Although the decisions Sigala references5 require that evidence of mitigation be
permitted at sentencing, and that a defendant be given considerable latitude in
presenting such evidence, including evidence of a defendant’s psychological
make-up, they do not plainly stand for Sigala’s proposition. No Supreme Court
decision has looked at Lockett and its impact in a situation like Sigala’s, so he
cannot argue that the state court reached a conclusion opposite to that reached
by the Supreme Court. He therefore cannot meet the AEDPA requirement to
show a “clearly established” right to his preferred presentation of such evidence


       5
          E.g., Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (concluding that “‘evidence about the
defendant’s background and character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less culpable than defendants who
have no such excuse.’” (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,
concurring)), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); McCleskey
v. Kemp, 481 U.S. 279, 306 (1987); Skipper v. South Carolina, 476 U.S. 1, 4–5 (1986).

                                              10
                                       No. 08-70013

under Lockett. Accordingly, we must defer to the state court’s decision that his
counsel’s failure to attempt to “preserve” such a right was not unreasonable.6
D. Claim IX: Ineffective Assistance of Counsel in Presenting Mitigating Evidence

       Sigala asserts in Claim IX a second claim of ineffective assistance of
counsel: at the punishment phase of his trial, he alleges, his trial counsel failed
to investigate, develop, and present crucial mitigating evidence, in violation of
his Sixth Amendment rights under Strickland. The state court decided this
claim on the merits, Ex parte Sigala, slip op. at 21; therefore, AEDPA governs.
To overcome the deference to which the state court is entitled under that statute,
Sigala must first show that the state court’s adjudication of this claim was either
contrary to, or an unreasonable application of, clearly established federal law,
as determined by the United States Supreme Court.                        § 2254(d)(1).       If
demonstrated, this would satisfy the first Strickland prong, cause, because it
would show that his counsel’s representation was unreasonable.
       The federal district court concluded that Sigala’s counsel had made poor
strategic decisions regarding mitigation that are “precisely the course of conduct
the Supreme Court deemed unreasonable [for Strickland cause purposes] in
Wiggins [v. Smith, 539 U.S. 510, 524 (2003)].” Sigala, slip op. at 18. But even
assuming arguendo that the strategic decisions of Sigala’s counsel were
unreasonable, Sigala cannot demonstrate, as he is required to by the second
Strickland prong, that they prejudiced his mitigation case.
       The Texas Court of Criminal Appeals held that Sigala “presented
substantial evidence fairly portraying [Sigala’s] background that the jury could
have viewed as mitigating” but that because the crimes had been egregious, he
had a criminal history, and he did not express remorse, “it is improbable that


       6
         Because Sigala cannot satisfy the first prong of Strickland here, we need not reach
the question of prejudice. However, we believe, for the reasons explained supra at note 3, that
Sigala was not prejudiced by the curtailment of the right he seeks to claim.

                                              11
                                       No. 08-70013

additional, especially cumulative, evidence would have benefitted [Sigala].” Ex
parte Sigala, slip op. at 21. In order to grant relief for Sigala’s ineffective
assistance claim, we would have to find the state court’s decision not merely
erroneous, but objectively unreasonable. See Neal v. Puckett, 286 F.3d 230, 246
(5th Cir. 2002) (en banc). We agree with the district court, and the state court,
that the additional evidence of mitigation Sigala contends his trial counsel
should have introduced would have been unlikely to help him, and that
accordingly, he is unable to demonstrate Strickland prejudice. See Sigala, slip
op. at 19–21.
       The transcript of the punishment phase of the trial supports this
conclusion. During that stage, the jury learned that Sigala abused drugs and
had attended drug rehabilitation centers; had been expelled from school; that his
mother had taken pains to take care of him financially and medically; and that
he had had a substantial criminal history involving thefts, marijuana possession,
and robbery.      He also participated in gang activities.            In addition, he was
diagnosed with antisocial personality disorder and described as a “sadistic
sexual predator.” It is hard to see how the additional evidence Sigala claims Dr.
Slaughter would have offered, or the fact that it would have come from a treating
physician, would have added so significantly to his mitigation case that the
outcome would likely have been different.7 Accordingly, under AEDPA, we must


       7
          Sigala also contends that two responses to jury questionnaires support his claim that
the jury would have been more sensitive to more mitigating factors had they been informed
of them. We disagree. Both answers respond to the question, “What is the most persuasive
argument for sentencing someone to a term of life imprisonment who is guilty of murder?”
The first response was, “If there were mitigating circumstances which would call for life and
not death”; the second was simply “individual instability.” These answers merely indicate
considerations in the abstract that might disincline these jurors to support the death penalty.
It is unlikely that these questionnaire responses, given the substantial evidence of mitigation
and of Sigala’s mental problems that the jury did hear—including the testimony of his own
forensic psychologist, Dr. Cunningham; his medical records; and the favorable information he
elicited on cross examination from the state’s expert, Dr. Clayton—would allow Sigala to
satisfy the demanding burden of Strickland, i.e., to establish a reasonable probability that the

                                              12
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defer to the state court’s reasonable finding that Sigala has not shown that the
sentencing outcome would probably have been different but for the asserted
error.8
                                   III. CONCLUSION
       For the reasons set forth above, we AFFIRM the judgment of the district
court. The petition for a writ of habeas corpus is DENIED.




sentence would have been different. This is especially true given the grisly nature of the
crime. See Strickland, 466 U.S. at 699 (finding no prejudice given that “the aggravating
circumstances were utterly overwhelming”); Jones v. Johnson, 171 F.3d 270, 277 (5th Cir.
1999) (similar analysis). For a discussion of the details of the crime, see Sigala, 2004 WL
231326, at *1; Sigala, slip op. at 1–2.
       8
         At oral argument, counsel for Sigala raised for the first time the additional argument
that Sigala’s trial counsel had failed to introduce during the punishment phase “hard scientific
evidence” rather than evidence of “what [psychologist] Dr. Cunningham did.” Counsel
contended at oral argument that “the scholarly literature” suggests that Sigala’s drug
addiction meant “there’s a very real likelihood that he could be brain damaged,” and that
Sigala’s trial counsel were therefore “on notice of . . . possible brain damage, they were on
notice that they needed to hire some sort of . . . have the neurotesting done and have the MRI’s
done to determine whether or not there was in fact brain damage.”
        Arguments raised for the first time at oral argument are deemed waived. E.g., Walker
Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229, 232 (5th Cir. 2004). Were we to
consider this argument, however, the result in this case would be no different. Sigala’s
appellate counsel has failed to cite any authority establishing the proposition that the
Constitution per se requires counsel for defendants with a history of drug use to proffer at the
punishment phase the results of “neurotesting” and an MRI instead of, or in addition to, the
psychological, character, and other mitigating evidence they choose to proffer. This court
certainly has not so held.

                                              13
