     Case: 16-70007         Document: 00514597899      Page: 1    Date Filed: 08/13/2018




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

                                        No. 16-70007                              FILED
                                                                            August 13, 2018
                                                                             Lyle W. Cayce
RAY MCARTHUR FREENEY,                                                             Clerk

                 Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                 Respondent–Appellee.




                     Appeal from the United States District Court
                          for the Southern District of Texas
                                USDC No. 4:14-CV-373


       ON PETITION FOR REHEARING AND REHEARING EN BANC

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       The petition for panel rehearing is denied and no member of this panel
nor judge in regular active service on the court having requested that the court
be polled on Rehearing En Banc, 1 petitioner’s Petition for Rehearing En Banc



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   FED R. APP. P. AND 5TH CIR. R. 35
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                                     No. 16-70007
is also denied. The opinion filed in this case on March 12, 2018, is withdrawn,
and the following opinion is substituted. 2
      Ray McArthur Freeney was convicted of capital murder in Texas state
court and sentenced to death. He sought post-conviction relief, alleging that
his state trial counsel rendered ineffective assistance during sentencing. The
state habeas court rejected the claim on the merits. Freeney subsequently filed
for habeas relief in federal court. The district court denied relief and declined
to issue a certificate of appealability (COA). Freeney now applies for a COA
from this court. We deny his application.
                                            I
      At trial, the State established, based in part on Freeney’s detailed
confession, that Freeney had brutally raped and killed two young women. 3 As
recounted by the Texas Court of Criminal Appeals, Freeney’s first victim,
Kirshalynne Jones, was a fifteen-year-old who occasionally worked as a
prostitute. He went with her to her motel room, 4 and upon arriving, he placed
her in a “choke hold” until she lost consciousness. For fifteen minutes, he
attempted to have vaginal intercourse with her while she was unconscious.
When she regained consciousness, Freeney stabbed her in the chest and neck
and then forced her to perform oral sex. In his confession, Freeney noted that
as Jones died at the foot of the bed, she had a “bleak look in her eyes.” Freeney
then used water to clean the surfaces he had touched, placed Jones’s body in
the bathtub, and left.
      Four days later, Freeney took his second victim, Vicky Dean, to his
apartment, where he gave her juice laced with a “sleeping aid.”                    While


      2   Freeney v. Davis, 2018 WL 1278124 (5th Cir. Mar. 12, 2018) (per curiam)
(unpublished).
       3 See 19 RR 95.
       4 Freeney v. State, No. AP-74,776, 2005 WL 1009560, at *1, *3 (Tex. Crim. App. Apr.

27, 2005).
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                                   No. 16-70007
preparing the drugged beverage, Freeney armed himself with a knife. After
Dean drank the juice, Freeney told her to lie on the bed, saying he would
massage her. When she complied, he stabbed her in the neck, leading to a
physical altercation during which Freeney continued to stab her. “After the
first few stabs,” Dean submitted and took off her clothes. Freeney attempted
to have vaginal intercourse then had Dean perform oral sex. When Freeney
ejaculated, they fought again, at which point Freeney stabbed Dean in the eye.
She asked Freeney to “[p]ull this knife out of me so I can die.” 5 He did not, 6
but instead covered her with bedding and exited through a window. 7 She later
died from her wounds. 8
      The jury found Freeney guilty of capital murder. 9 During the sentencing
phase of the trial, Freeney called eight witnesses. Dr. Longmire, an expert in
the Texas Department of Criminal Justice’s (TDCJ’s) inmate classification
system, testified that the TDCJ would place Freeney in the highest available
custody level, in which prisoners have limited access “to jobs, civilians, and
other opportunities” and are supervised by well-trained guards. 10 He also
noted that TDCJ prisons have a relatively low rate of acts of violence in the
general prison population. He testified that TDJC provides medication for
mentally ill inmates as well as units designed specifically for mentally ill
inmates and that inmates convicted of capital murder are four times less likely
to commit acts of violence than the general prison population. 11 Longmire also
testified that no inmate convicted of capital murder has been granted parole. 12



      5 SHCR at 162.
      6 SHCR at 162.
      7 SHCR at 164-65.
      8 18 RR 73-74.
      9 4 CR 639.
      10 SHCR at 264.
      11 SHCR at 264.
      12 SHCR at 264.

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                                 No. 16-70007
      Freeney’s psychiatrist, Dr. G.K. Ravichandran, who treated Freeney for
several years prior to trial, also testified. Dr. Ravichandran recounted that he
diagnosed Freeney with schizoaffective disorder and that Freeney had
symptoms of bipolar disorder. Ravichandran testified that Freeney did not
appear to be malingering.      Dr. Daneen Milam, a neuropsychologist who
testified on Freeney’s behalf, largely echoed Dr. Ravichandran’s conclusions.
Milam diagnosed Freeney with schizophrenia and major depression but opined
that medication could control Freeney’s behavior in prison. 13 She noted that
Freeney had ceased taking his medication for between two weeks to three
months before committing the crimes and that she believed Freeney had
suffered another psychotic break shortly before the murders. 14        She also
testified that Freeney’s childhood “was pretty ok,” that he was quiet, reserved,
and tidy as a child, but that his uncle sexually abused him, and that his first
psychotic break occurred while serving in the National Guard, resulting in a
medical discharge. 15
      Freeney called several character witnesses. Leon Dwight Bey testified
that Freeney had described instability in his life and abuse he had suffered as
a child. 16 Kobina Bryant, a friend who had known Freeney for twenty years,
stated that she had observed significant changes in Freeney’s behavior,
including multiple paranoid episodes, after Freeney spent time serving in the
National Guard. 17 Cassandra Rouse, a long-time friend of Freeney’s mother,
attested that during childhood, Freeney was not aggressive but became
“distant” and “angrier” after serving in the National Guard. 18 Lisa Angelle, a



      13 22 RR 233-36.
      14 SHCR at 267.
      15 SHCR at 266-67.
      16 22 RR 122-30.
      17 22 RR 135-45.
      18 22 RR 151-59.

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                                    No. 16-70007
friend of Freeney’s mother and a babysitter for Freeney during his childhood,
testified that she thought him to be a “normal kid” but observed that Freeney
behaved differently and did not take good care of himself after serving in the
National Guard. 19 Freeney’s mother testified that Freeney was “normal” as a
child, she had been a strict parent, and Freeney began experiencing
schizophrenic incidents during his National Guard service. 20
      After considering this evidence, the jury sentenced Freeney to death. 21
The Texas Court of Criminal Appeals affirmed Freeney’s conviction. 22 While
the appeal was pending, Freeney filed a state habeas application, 23 which
included   an    ineffective-assistance-of-trial-counsel       claim   asserting     that
Freeney’s trial attorneys did not adequately investigate and develop mitigating
evidence. 24   In particular, Freeney argued that trial counsel should have
interviewed several of Freeney’s relatives, who could have provided support for
the proposition that Freeney’s mental instability in adulthood is due at least
in part to his “dysfunctional and abusive childhood.” 25 Freeney presented new
information through affidavits attached to his petition, including testimony
from Freeney’s half-brother that their mother was mentally and verbally
abusive toward her children and disciplined them with beatings that left
bruises and that Freeney’s half-brother “had heard [that Freeney’s uncle]
Calvin had molested [Freeney].” 26 Freeney’s aunt and another half-brother of
Freeney’s averred that Freeney was aggressive and prone to instigating fights




      19 22 RR 163-70.
      20 22 RR 178-89.
      21 24 RR 4.
      22 Freeney v. State, No. AP-74,776, 2005 WL 1009560 (Tex. Crim. App. Apr. 27, 2005).
      23 SHCR 2-89.
      24 SHCR 2-6.
      25 SHCR 7; see SHCR 7-19, 36-59, 80-81.
      26 SHCR 7-9.

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                                  No. 16-70007
as a child, 27 and Freeney’s aunt averred that Freeney’s mother was often
violent and once hit Freeney on the head with a can. 28
      After reviewing the new affidavits, Dr. Cecil Reynolds, who had served
as a consulting expert to trial counsel, attested that in preparing his pre-trial
memorandum, he had not been aware of the extent of the violence in Freeney’s
household when Freeney was growing up. 29 Dr. Milam also reviewed the new
affidavits and concluded that “without knowledge of [Freeney’s] childhood
which was marked by physical, sexual and emotional abuse, neglect and
inadequate supervision, along with clear indications of early onset of mental
illness, the jury would not be able to make a fair and balanced assessment of
his personal moral culpability.” 30
      In addition to the affidavits from family members, the state habeas
application also included affidavits from Freeney’s trial counsel, Layton Duer 31
and Robert Loper. 32 Duer’s affidavit stated that he and Loper undertook a
“thorough pre-trial investigation” that included hiring an investigator, a
mitigation specialist, and mental health experts, and that also included
interviews with family members “with regard to possible history of mental
illness, abuse as a child, and possible history of violence.” 33 Loper’s affidavit
was similar to Duer’s and noted that both trial counsel and the mitigation
specialist asked the witnesses whom they interviewed about any additional
witnesses who might be available to testify. 34 However, Loper added that the
newly provided affidavits from family members raised issues that he “would



      27 SHCR 8-9, 18.
      28 SHCR 18.
      29 SHCR 20-22.
      30 SHCR at 228.
      31 SHCR at 236-37.
      32 SHCR at 240-44.
      33 SHCR at 236.
      34 SHCR at 243.

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have certainly wanted to know about.” 35 He stated that if the new affidavits
are accurate, “it [then] appears that [Freeney’s] mother was not forthcoming
and actually was untruthful” about certain aspects of Freeney’s upbringing. 36
      The State and Freeney both submitted proposed findings of fact and
conclusions of law to the state habeas court. The state habeas court entered
an order adopting the State’s proposed findings and conclusions, and
recommended that the Texas Court of Criminal Appeals deny Freeney relief. 37
The Court of Criminal Appeals, however, remanded for further findings as to
whether the lay affiants were available to testify and as to the extent to which
trial counsel had investigated and spoken with those affiants. 38 The state
habeas trial court ordered the parties to obtain affidavits from the lay affiants
and Freeney’s former trial counsel relating to these issues 39 and “to file
proposed findings of fact and conclusions of law within twenty-one days
following receipt of the affidavits from Applicant’s former trial attorneys.” 40
Freeney submitted additional affidavits from the lay affiants, 41 and one of
Freeney’s trial counsel submitted an affidavit. 42 The State submitted proposed
findings of fact and conclusions of law. 43 Six days later, before Freeney had
filed proposed findings of fact and conclusions of law, the state habeas court
adopted    the   State’s   proposed    findings    and    conclusions,    and   again
recommended that relief be denied. The Texas Court of Criminal Appeals




      35 SHCR at 243.
      36 SHCR at 243-44.
      37 SHCR at 248-99.
      38 Ex parte Freeney, No. WR-78, 109-01, 2013 WL 1182745, at *1-2 (Tex. Crim. App.

Mar. 20, 2013).
      39 Supp. SHCR at 29-30.
      40 Supp. SHCR at 24.
      41 Supp. SHCR at 46.
      42 Supp. SHCR at 98-101.
      43 Supp. SHCR at 97-110.

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                                     No. 16-70007
agreed with the state habeas court’s recommendation, adopted its findings and
conclusions, and denied relief. 44
      Freeney subsequently filed a federal habeas petition. 45 The Director of
the Criminal Institutions Divisions of the Texas Department of Criminal
Justice (Director) moved for summary judgment. The district court granted
the motion, holding that 28 U.S.C. § 2254(d) applied and that the state court’s
determination was objectively reasonable as to the performance of counsel and
as to the prejudice prong of an ineffective-assistance-of-counsel claim. 46 The
district court held in the alternative, after applying a de novo standard of
review, that habeas relief was not warranted.             The district court denied
Freeney a COA. 47 Freeney applied for a COA from this court. 48

                                           II
      For a state prisoner seeking federal habeas relief, the issuance of a COA
is a jurisdictional prerequisite to appellate review. 49 We may issue a COA
“only if the applicant has made a substantial showing of the denial of a
constitutional right,” 50 meaning that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” 51 Stated another way, we are restricted to “ask[ing] ‘only if
the District Court’s decision was debatable;’” if not, a COA may not issue. 52
This standard allows a COA to issue “even though every jurist of reason might



      44 Order 1–2, Ex parte Freeney, No. WR-78,109-01 (Tex. Crim. App. Aug. 20, 2014).
      45 R. at 26-81.
      46 R. at 307-36.
      47 R. at 335-37.
      48 R. at 338.
      49 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
      50 28 U.S.C. § 2253(c)(2).
      51 Buck v. Davis, 137 S. Ct. 759, 773 (2017).
      52 Id. (quoting Miller-El, 537 U.S. at 348).

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                                    No. 16-70007
agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” 53
      The Supreme Court has cautioned that, at this threshold stage, we are
to refrain from “full consideration of the factual or legal bases adduced in
support of the claims.” 54 Our focus must remain on the limited inquiry as to
whether a COA should issue and avoid the merits of the appeal as a means to
justify a denial of a COA. 55 In a capital case, should any doubt remain after
this inquiry as to the propriety of a COA, we resolve those doubts in the
petitioner’s favor. 56
                                          III
      Under the Antiterrorism and Effective Death Penalty Act (AEDPA),
federal habeas relief is available to petitioners “in custody pursuant to the
judgment of a State court” on the basis of “any claim that was adjudicated on
the merits in State court” 57 when the state proceeding “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,” 58 or if the decision was “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 59
                                           A
      Freeney argues that reasonable jurists could debate whether the
deferential lens through which AEDPA requires courts to examine claims
“adjudicated on the merits in State court” is inapplicable. Freeney asserts that



      53  Id. (quoting Miller-El, 537 U.S. at 338).
      54  Id. (quoting Miller-El, 537 U.S. at 336).
       55 Id. (quoting Miller-El, 537 U.S. at 336-37).
       56 United States v. Bernard, 762 F.3d 467, 471 (5th Cir. 2014) (quoting Ramirez v.

Dretke, 398 F.3d 691, 694 (5th Cir. 2005)).
       57 28 U.S.C. § 2254(d).
       58 Id. § 2254(d)(1).
       59 Id. § 2254(d)(2).

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                                    No. 16-70007
the state habeas court deprived him of due process by adopting the State’s
proposed findings of fact and conclusions of law before Freeney had submitted
his. Freeney contends that the state court misled him “into believing that he
would have an opportunity to be heard but then chose to hear only from the
State and to adopt, unedited, the State’s proposed findings of fact and law,”
resulting in a claim that was not “adjudicated on the merits.” 60 No reasonable
jurist could debate the merits of this claim.
      In determining “whether an ‘adjudication on the merits’ occurred, we
have looked at whether the state court reached the merits of the petitioner’s
claim rather than deciding it on procedural grounds.” 61 We have held that “a
full and fair hearing in state court is not a prerequisite to applying AEDPA’s
deferential scheme.” 62     That is because “[t]he term ‘adjudication on the
merits’ . . . refers solely to whether the state court reached a conclusion as to
the substantive matter of a claim, as opposed to disposing of the matter for
procedural reasons. It does not speak to the quality of the process.” 63
      Freeney relies on Johnson v. Williams 64 in arguing that the “Supreme
Court has subsequently rejected this narrow interpretation” of “adjudication
on the merits.” He argues that the Court instead reasoned that an adjudication
on the merits does not occur unless it comports with “the fundamental due
process guarantee [of] . . . an opportunity to be heard.” But Johnson addressed
whether a federal claim should be considered adjudicated on the merits when
the state court “issues an opinion that addresses some issues but does not



      60  Id. § 2254(d).
      61  Valdez v. Cockrell, 274 F.3d 941, 952 (5th Cir. 2001).
       62 Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010).
       63 Valdez, 274 F.3d at 950 (citations omitted) (quoting 28 U.S.C. § 2254(d)); cf.

Browning v. Trammell, 717 F.3d 1092, 1102 (10th Cir. 2013) (noting that no “authority
establish[es] that ‘adjudication on the merits’ necessarily requires an adversarial
proceeding”).
       64 568 U.S. 289 (2013).

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                                        No. 16-70007
expressly address the federal claim in question.” 65 It did not address the
quality of the state court process, and no reasonable jurist could read Johnson
as undermining our binding precedent.
       In any event, Freeney received an “opportunity to be heard” in the state
habeas court. He filed a petition, proposed findings of fact and conclusions of
law in the initial state habeas proceeding, and affidavits introducing new
evidence to support his arguments. “[B]ecause our precedent does not require
a full and fair hearing, and because the record reflects that [Freeney] had
ample opportunity to ‘develop his claims’ before the state habeas court,
reasonable jurists could not debate whether the district court properly applied
Section 2254 deference in its review of the state habeas court’s findings of fact
and conclusions of law.” 66 Freeney has not shown that a reasonable jurist could
argue that his claim was not adjudicated on the merits. Freeney’s invocation
of the “general limits to the rules of preclusion” in order to bypass AEDPA
deference is not well-taken. Congress, in enacting AEDPA, spoke directly to
the requirements that occasion deference to state court adjudications. 67 A
reasonable jurist could not ignore its command by resorting to general
principles of preclusion.
       Freeney argues that the alleged shortcomings in the state habeas court’s
procedures constitute an “antecedent unreasonable application of [clearly
established] due process” law, exempting his claim from AEDPA deference
under 28 U.S.C. § 2254(d)(1). 68 He asserts that “the state court was required



       65  Johnson, 568 U.S. at 292.
       66  Rockwell v. Davis, 853 F.3d 758, 761 n.5 (5th Cir. 2017).
        67 See Resolution Tr. Corp. v. Miramon, 22 F.3d 1357, 1360-61 (5th Cir. 1994).
        68 See Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010) (“It is axiomatic that infirmities

in state habeas proceedings under state law are not a basis for federal relief. Indeed, we have
also held that a full and fair hearing in state court is not a prerequisite to applying the
AEDPA’s deferential scheme. The Supreme Court has recognized, however, that a state
court’s unreasonable application of federal law, as a predicate for adjudicating a defendant’s
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                                       No. 16-70007
to provide Mr. Freeney with an opportunity to be heard and was required to
give notice of when and how Mr. Freeney would be heard.” 69 Our precedent
forecloses this argument. We have previously stated that “[i]t certainly does
not amount to 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” to deny a petitioner “any opportunity to object or
seek changes or clarifications to the findings in the State’s proposed order,
which the state court requested ex parte, and signed verbatim.” 70 For the same
reason, Freeney’s assertion that reasonable jurists could debate the state
habeas court’s decision to render a recommendation before this submission and
before twenty-one days had elapsed from when one of Freeney’s trial counsel
submitted an affidavit is without merit. He cites no precedent—much less
clearly established federal law 71—suggesting that this decision was in error,
and our review reveals none. No reasonable jurist could claim that the state
habeas court’s procedures violated clearly established due process law.
                                             B
       Freeney raises several objections to the state habeas court’s resolution
of the merits of his ineffective-assistance claim.             To be entitled to relief,
Freeney must “show both that his counsel provided deficient assistance and
that there was prejudice as a result.” 72 This standard is “highly deferential.” 73
For trial counsel’s performance to be deficient, it must fall below an objective
standard of reasonableness such that “counsel was not functioning as the




claim, may undermine the AEDPA deference given to the state court adjudication.” (citations
omitted)).
       69 Freeney Supp. Br. at 17.
       70 Green v. Thaler, 699 F.3d 404, 415-16 (5th Cir. 2012) (internal quotations removed).
       71 See White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
       72 Harrington v. Richter, 562 U.S. 86, 104 (2011).
       73 Id. at 105 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).

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                                      No. 16-70007
‘counsel’ guaranteed the defendant by the Sixth Amendment.” 74 There is “a
‘strong presumption’ that counsel’s representation was within the ‘wide range’
of reasonable professional assistance.” 75 To establish prejudice, Freeney must
do more than “show that the errors had some conceivable effect on the outcome
of the proceeding.” 76 Rather, he must show “a reasonable probability”—that
is, “a probability sufficient to undermine confidence in the outcome”—“that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 77 For a COA to issue, jurists of reason must be able to debate
whether Freeney established both deficiency and prejudice. 78
       Freeney argues at length that the state habeas court unreasonably
applied Strickland v. Washington. 79 First he argues that the court improperly
required him to “prove the truth of the mitigating evidence alleged to have
been undiscovered by trial counsel by a preponderance of the evidence.”
However, the state habeas court had an alternative basis for holding that
Freeney had not established deficiency. That court applied Wiggins v. Smith 80
and held that trial counsel’s failure to investigate the alleged abuse was
reasonable, as neither Freeney, his mother, nor any of the other witnesses that
trial counsel interviewed disclosed it. 81 There was accordingly no “known
evidence [that] would lead a reasonable attorney to investigate further.” 82 No




       74 Id. at 104 (quoting Strickland, 466 U.S. at 687).
       75 Id. (quoting Strickland, 466 U.S. at 689).
       76 Id. (quoting Strickland, 466 U.S. at 693).
       77 Strickland, 466 U.S. at 694.
       78 See Buck v. Davis, 137 S. Ct. 759, 773 (2017).
       79 466 U.S. 668 (1984).
       80 539 U.S. 510, 527 (2003) (“In assessing the reasonableness of an attorney’s

investigation . . . a court must consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable attorney to investigate
further.”).
       81 SHCR at 292.
       82 Wiggins, 539 U.S. at 527.

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reasonable jurist could debate the propriety of the state habeas court’s
application of Strickland on this point.
      Freeney argues that the state habeas court shifted the duty to
investigate mitigation evidence from trial counsel to Freeney and the potential
mitigation witnesses by purportedly requiring them to “come forward and
disclose relevant information to trial counsel.” This is so, he contends, because
the state habeas court noted that trial counsel “cannot be faulted for failing to
discover Freeney’s physically and mentally abusive childhood because neither
Freeney nor witnesses volunteered the information.” 83                  But Freeney
mischaracterizes what the court did. The state habeas court concluded that
“[c]ounsel [had] conducted a reasonable investigation into Applicant’s
background.” 84 In explaining why that investigation was reasonable, the court
noted that interviews with mitigation witnesses and Freeney himself, as well
as years of medical records collected from Freeney’s psychiatrist, did not
uncover evidence of abuse by his mother, evidence which the court was “not
convinced” existed. 85 The Supreme Court has observed that Strickland “does
not force defense lawyers to scour the globe on the off chance something will
turn up.” 86 Instead, “reasonably diligent counsel may draw a line when they
have good reason to think further investigation would be a waste,” 87 and “when
a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unreasonable.” 88               No
reasonable jurist could call into question the state habeas court’s application



      83 SHCR at 286.
      84 SHCR at 285.
      85 SHCR at 285.
      86 Rompilla v. Beard, 545 U.S. 374, 383 (2005).
      87 Id.
      88 Strickland v. Washington, 466 U.S. 668, 691 (1984).

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                                      No. 16-70007
of Strickland. For the same reasons, Freeney’s claim that a COA should issue
because trial counsel improperly “abandoned” its investigation into his
background, is without merit.
      Freeney alleges that his trial counsel failed to contact his brother, Jesse
Kelly, Jr., after receiving notice that the state planned to offer evidence that
Freeney sexually assaulted Kelly as a child. This is inaccurate, as trial counsel
subpoenaed Kelly and informed him that he may be called as a character
witness. 89 Furthermore, evidence of Freeney’s assault on his brother would
have been inconsistent with other evidence and with trial counsel’s mitigation
theory that Freeney “was a law-abiding, well-mannered child who eventually
had a psychotic break . . . in the National Guard.” 90 Accordingly, even if trial
counsel were deficient with respect to their interactions with Kelly, jurists of
reason cannot debate that Freeney cannot establish prejudice on this point.
      Freeney next sets forth a series of claims challenging the state habeas
court’s conclusion that he failed to prove prejudice. First, he argues that a
COA should issue because the court applied the incorrect legal standard to its
prejudice analysis. Under Texas law, a defendant may not be sentenced to
death if the jury returns a special verdict finding that, after “taking into
consideration all of the evidence, including the circumstances of the offense,
the defendant’s character and background, and the personal moral culpability
of the defendant, there is a sufficient mitigating circumstance . . . to warrant”
a life sentence as opposed to death. 91           Freeney asserts that because this
standard does not affirmatively instruct the jury to balance mitigation
evidence against aggravating factors, the state habeas court improperly




      89 SHCR at 42.
      90 SHCR at 292.
      91 TEX. CODE CRIM. PROC. art. 37.017, § 2(e)(1) (jury instruction for mitigation).

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                                       No. 16-70007
discounted Freeney’s new mitigation evidence due to its “double-edged” nature
in holding that he had not established prejudice.
       The affidavits presented to the state habeas court contained evidence
that may well have led jurors to perceive Freeney to be morally culpable for
the murders and would have undermined his mitigation theory that adult-
onset mental illness led him to commit the crimes. As the state habeas court
noted, two of the new affidavits revealed that Freeney frequently beat his
brothers when he was young 92 and others indicated that his violent tendencies
were long-standing. 93        This contradicts trial counsel’s stated mitigation
theory. 94   The jury could also have found that Freeney’s new mitigation
evidence would have been insufficient to rebut the brutal “circumstances of the
offense.” 95 The jury instruction does not preclude a death sentence whenever
a defendant may plausibly assert that outside circumstances contributed to his
crime, but rather leaves it to the jury to define the contours of the
circumstances that mitigate an otherwise compelling case for capital
punishment. This consideration is relevant to whether prejudice has been
established with “reasonable probability.” 96 No reasonable jurist could debate
that it was appropriate for the state habeas court to take these aspects of
Freeney’s undiscovered evidence into consideration in evaluating prejudice.
       Second, Freeney contends that the state habeas court “ma[de] the state-
law evidentiary findings that would have been at issue at sentencing” with



       92SHCR at 274, 276.
       93See SHCR at 276-77, 281.
      94 See SHCR at 241 (affidavit of trial counsel Robert Loper) (explaining that mitigation

witnesses called at trial “were called to show that [Freeney] never exhibited violent or
criminal behavior; that [he] was abused as a child; that he was a good, normal kid; that [the
witnesses] could not believe he would have committed the offense; that he was a loving father;
and that he had a mental illness”).
      95 TEX. CODE CRIM. PROC. art. 37.017, § 2(e)(1).
      96 Strickland v. Washington, 466 U.S. 668, 695 (1984).

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                                      No. 16-70007
respect to his undiscovered mitigation evidence. While that court did observe
that some of the undiscovered mitigation evidence suffered from defects that
might make it inadmissible or less credible, 97 no reasonable jurist could debate
the propriety of its doing so.          Consideration of the quality of a habeas
applicant’s new evidence is necessary to establish the likelihood that such
evidence would have led to a different outcome at trial.                 This court has
sanctioned state habeas courts’ consideration of both the admissibility 98 and
the credibility 99 of new evidence in the evaluation of the prejudice prong of a
habeas applicant’s Strickland claim. Therefore, that doing so is contrary to or
an unreasonable application of clearly established federal law is not a
proposition debatable among jurists of reason.
       Jurists of reason could not debate whether the state habeas court acted
contrary to or unreasonably applied Strickland in concluding that (1) Freeney
failed to make “a substantial showing of the denial of a constitutional right” 100
because Freeney’s trial counsel acted in an objectively reasonable manner in
investigating, selecting and presenting a mitigation theory, and that (2)
Freeney failed to show “a probability sufficient to undermine confidence in the
outcome,” 101 that is, “a reasonable probability” that but for counsel’s failure to
discover and present an alternative mitigation theory, the jury would have
found in his favor. 102 Even assuming, arguendo, that the state habeas court
unreasonably determined that counsel’s performance was not ineffective,
Freeney has failed to establish prejudice for the reasons discussed above.




       97 See SHCR at 294-95.
       98 See Neal v. Puckett, 286 F.3d 230, 241-42 (5th Cir. 2002) (en banc) (per curiam).
      99 See Dale v. Quarterman, 553 F.3d 876, 879 (5th Cir. 2008) (per curiam).
      100 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations

omitted).
      101 Strickland v. Washington, 466 U.S. 668, 694 (1984).
      102 Id.

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                                    No. 16-70007
                                           C
      Lastly, Freeney argues that reasonable jurists could debate whether
AEDPA deference applies because the state habeas court’s decision was “was
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” 103         Freeney asserts that it was
unreasonable for the state trial court to find that trial counsel was unaware
that Freeney was abused by his mother, and unreasonable in finding that trial
counsel’s investigation of the matter was not deficient. Freeney asserts that
Leon Dwight Bey’s testimony that Freeney had told Bey he had been “abused
as a child” 104 put trial counsel on notice of abuse at the hands of Freeney’s
mother, contrary to the state habeas court’s finding that trial counsel was
unaware of “physical abuse growing up in Kelly’s household.” 105
      A state habeas court’s factual determinations are “not unreasonable
merely because a federal habeas court would have reached a different
conclusion in the first instance.” 106 Here, reasonable jurists could not debate
whether the state habeas court was unreasonable in finding that trial counsel
lacked a reason to investigate whether Freeney was subjected to physical
abuse by his mother. Trial counsel was aware of, and based a mitigation theory
in part on, evidence that Freeney had been abused by his uncle. 107 Freeney
offered evidence to that effect at trial. 108 Bey’s reference to “abuse” in his
testimony was not specific, would have been consistent with abuse by Freeney’s




      103 28 U.S.C. § 2254(d)(2).
      104 22 RR at 127.
      105 Supp. SHCR at 102.
      106 Wood v. Allen, 558 U.S. 290, 301 (2010).
      107 See SHCR at 241 (affidavit of trial counsel Robert Loper).
      108 See 22 RR at 236 (testimony of Dr. Daneen Milam) (opining that sexual abuse by

Freeney’s uncle could facilitate but not cause a psychotic break).
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                                           No. 16-70007
uncle, and gave no reason for trial counsel to suspect abuse by Freeney’s
mother.
       Even if Freeney were correct that the state habeas court’s finding in this
regard was unreasonable, the state court’s conclusion that Freeney failed to
establish prejudice is not debatable among jurists of reason. Freeney did not
show a probability that the jury would have ruled in his favor that is sufficient
to undermine confidence in the outcome at trial. Accordingly, no reasonable
jurist could debate that the state habeas court’s disposition of Freeney’s
Strickland claim was based on an unreasonable finding of fact.
                                               IV
       Freeney raises a number of additional bases for a COA in a supplemental
application submitted to this court. We need not reach the merits of these
claims, as Freeney did not present them to the district court.                        We have
previously said that “[a] district court must deny the COA before a petitioner
can request one from this court.” 109 We therefore lack jurisdiction to grant a
COA on these grounds. 110
                                       *        *         *
       For the foregoing reasons, Freeney’s request for a COA is DENIED.




       109 Brewer v. Quarterman, 475 F.3d 253, 255 (5th Cir. 2006) (per curiam) (quoting
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998)).
       110 See id. (“[J]urisdiction is not vested in this Court because the district court has not

yet considered whether [a] COA should issue.” (quoting United States v. Youngblood, 116
F.3d 1113, 1115 (5th Cir. 1997))).
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