     Case: 12-70034   Document: 00512752279    Page: 1   Date Filed: 08/29/2014




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

                                No. 12-70034                            FILED
                                                                  August 29, 2014
                                                                   Lyle W. Cayce
ANIBAL CANALES, JR.,                                                    Clerk

                                          Petitioner–Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                          Respondent–Appellee




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Anibal Canales (“Canales”) was sentenced to death following his
conviction for the capital murder of Gary Dickerson (“Dickerson”). The Texas
Court of Criminal Appeals (“CCA”) affirmed his conviction and sentence on
direct appeal, Canales v. State, 98 S.W.3d 690 (Tex. Crim. App.), cert. denied,
540 U.S. 1051 (2003), and denied his first application for a writ of habeas
corpus, Ex parte Canales, No. 54,789-01 (Tex. Crim. App. Apr. 5, 2003).
      Canales filed a petition for a writ of habeas corpus in federal district
court in 2004; the district court stayed proceedings to allow Canales to file a
successive state habeas petition. The CCA denied his successive state habeas
petition in 2008. Ex parte Canales, No. WR-54789-02, 2008 WL 383804 (Tex.
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                                  No. 12-70034
Crim. App. Feb. 13, 2008). Federal proceedings resumed, and the district court
denied his petition. The district court found he had procedurally defaulted all
of his claims except his shackling claim, which it denied.
      The district court then granted Canales a certificate of appealability
(“COA”) on eight claims:
         1. Canales received ineffective assistance of trial counsel.
            (Wiggins Claim)
         2. The trial court’s rulings violated Canales’s right to present a
            defense.
         3. The state used another inmate, who was working as a state
            agent, to solicit incriminating evidence in violation of his
            rights to assistance of counsel and due process of law.
            (Massiah Claim)
         4. The state withheld material exculpatory evidence and
            presented false testimony, which violated his right to due
            process of law. (Giglio/Napue Claim and Brady Claim)
         5. The cumulative effect of his ineffective assistance of counsel
            and the withholding of evidence violated his right to due
            process.
         6. Jurors lied about their criminal backgrounds, which violated
            his rights to due process of law, fair trial, and to be free from
            cruel and unusual punishment.
         7. The jury communicated with the court and with the bailiff
            outside his and his counsel’s presence during deliberations,
            which violated his rights to due process of law, fair trial, and
            to be free from cruel and unusual punishment.
         8. Canales was shackled during the punishment phase of his
            trial in violation of his rights to due process of law, to remain
            silent, and to a fair trial.
      For the reasons that follow, we reverse the district court on Canales’s
claim that he received ineffective assistance of counsel during sentencing, and
we remand that issue to the district court. We affirm the district court on all
other claims.

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             I. FACTUAL AND PROCEDURAL BACKGROUND
A.     Factual Background
       On July 1, 1997, prison officials caught Larry “Dirty” Dickerson
(“Dickerson), an inmate at the Telford Unit of the Texas Department of
Criminal Justice (“the Unit”), with contraband that belonged to another prison
gang. Dickerson told another inmate, James Baker (“Baker”), that if Baker
did not help him avoid retaliation from the gang whose contraband was stolen,
Dickerson would tell prison officials about a large quantity of tobacco that was
to be smuggled into the prison the next day.
       The next day, prison officials intercepted a shipment of contraband
tobacco intended for Baker and the Texas Mafia, a prison gang. When the
tobacco was intercepted, Dickerson was placed in administrative segregation.
At his own request, he returned to the general population about a week later.
Dickerson was found dead in his cell on July 11, 1997. Prison authorities
initially concluded that Dickerson had died of natural causes. Only after
conducting an autopsy did the State conclude that Dickerson had actually been
strangled.
       The Texas Mafia had a financial stake in the intercepted contraband
tobacco and arranged for Dickerson’s murder. See Canales, 98 S.W.3d at 693.
Canales, who was also an inmate in the Unit, was a member of the Texas
Mafia. According to the magistrate judge’s summary of the facts Canales and
three other Texas Mafia members—William Speer (“Speer”), Jessie Barnes,
and Michael Constantine—agreed to murder Dickerson. Canales and Speer
went to Dickerson’s cell, and while Canales held him down, Speer strangled
him.
       In 1998, Canales sent a letter to Bruce Innes (“Innes”) in which he
described Dickerson’s murder and the Texas Mafia’s interest in it. The letter
was admitted into evidence at trial.
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                                  No. 12-70034
      Dirty [Dickerson] lit the smoke and we smoked. When the last hit
      was took he was down by the vent on his knee and Puff [Speer]
      behind and me at the door. Puff put the hold on him and I grabbed
      his arms. It went smooth! He lost consciousness right away and
      strugled (sic) for a little bit. I took the time to inform Him who we
      were and why he’s going to die. Puff told him . . “Don’t even fuck
      with the Texas-MAFIA in hell!!” Ha! Ha! Ha! Anyway. . . we made
      sure the dick sucker was dead and I declared the hit complete. We
      put his shit smelling ass in the top bunk and went quietly out the
      door. I went to the yard with minutes to spare!!
R. at 2355 (magistrate judge’s summary of the facts) (alterations in original)
(emphasis omitted).
      Canales was indicted for capital murder in November 1999. In February
2000, he sent another letter to Innes. As the district court described the letter,
“although written in code, [it] appeared to ask the gang to retaliate against
Larry (“Iron-head”) Whited because he believed Whited had informed prison
authorities about his role in the killing.” The district court also included the
letter:
      Greetings, Sir . . As always, I come to you and all worthy with my
      utmost respects (sic)! I realize that I just recently sent you a letter
      but it has become imperative that I write you again, as you’ll see
      . . First, I arrived at bowie county court on 2-7-00 and was
      arraigned for several charges.            Mr.s Speers barnes and
      Constinetine were also there. . I must tell you that the worst has
      been done and its (sic) one of the charges (Main one actually)
      Glarinly (sic) absent was that iron headed fella . . He was not
      charged, which is good .. Eh? Seems that iron obes (sic) bend to
      the will of the state or not. I personally think so.
      Perhaps some effort can be used to throw that useless material to
      the scrap yard. . I can’t stress how important this is. As you know
      Iron can be shaped into what you want it to look like and not in a
      good way sir!! If this can’t be done then I’ll need to ask for legal-
      assistance from other arenas .. And that’s not to(sic) cool!
      Maximum effort Ace, Maximum!! Now, I will also get with Mr. JR
      on the others who are involved and can help get it all in order.
      Also, it’s possible that a legal defense fund will be placed to help

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                                   No. 12-70034
       with council, (sic) legal material, clothes (for court) I’ll have our
       attorney (who’s a freeworld) get it together and put out flyers to all
       the best.
       We’ll need ya’lls (sic) help fellas and I can’t stress how important
       it is to file that writ of dismissal in this area on that pile of scrap!
       This in itself would be tremendous in assisting this legal case!
       That’s how important it is . . . You take care fellas and put out the
       word that help is needed on this from all areas. . . . We continue
       the struggle,
       In solidarity
       Bigfoot..
R. at 2356–57 (emphasis omitted). This letter was also admitted into evidence
at trial.
       In April 2000, Canales wrote a third letter to another inmate, which read
in part:
       Yeah bubba, I’ve been bummed a bit, just a small funk, no sweat ..
       A lot has to do with my case and its outcome or the way I see it.
       It’s not good , and I’ve got a few making matters worse with their
       mouths! I was here with Tony Rice, I know him and his case and
       I know how it came about, I was in super seg with him there in 85
       and then we were all on the same wing (L -Wing) in 86-87 and we
       got tight. I saw the downfall and how it came about and who was
       responsible! I’ve got snakes in the yard and it’s getting worse from
       the crap coming outta the mouths of so-called homies. One
       dayroom call homeboy, and I’ll get it all straight! Bet that! But
       what can I do? Nothink! Nada! Zero! Zip! 0! But, I’m a firm
       believer that what goes around, comes around! And that what you
       sow, you reap! So, I’ll be content with justice in the end. TDC is
       not big, at all! So ......
R. at 2357. The State also introduced this letter into evidence at trial.
       The 1998 letter was particularly important in the guilt phase, and the
other two letters were used at punishment phase to help establish “future
dangerousness,” the special issue that led to his capital sentence. Canales, 98
S.W.3d at 699. The State also used several inmates as witnesses, including

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                                        No. 12-70034
Innes (who allegedly started working as a State agent in 1999 or 2000), Richard
Driver, Jr., and Doyle Hill.
B.    Procedural Background
      Canales was convicted of capital murder in state district court, and based
on the jury’s answers to special issues under Texas Code of Criminal Procedure
article 37.071, the court sentenced him to death.                   The CCA affirmed his
sentence on direct appeal. Canales, 98 S.W.3d at 700. Canales also filed a
petition for a writ of habeas corpus in state court, presenting ninety-seven
issues for review; the CCA denied his petition. Ex parte Canales, No. 54,789-
01 (Tex. Crim. App. Apr. 5, 2003).
      In 2004, Canales filed a petition for a writ of habeas corpus in federal
district court in the Eastern District of Texas. His petition raised thirteen
claims, including the eight on which the district court granted a COA. Canales
filed a motion to stay his habeas proceedings so that he could return to state
court to exhaust the new claims that he had filed based on evidence that, he
alleged, had been suppressed. The district court granted his motion and stayed
proceedings.
      Canales presented his petition to the CCA, and the CCA asked for
additional briefing on Canales ineffective assistance claims. Ex parte Canales,
No. WR-54,789-02, 2008 WL 383804, at *1 (Tex. Crim. App. Feb. 13, 2008) (per
curiam) (unpublished). The CCA dismissed his application as an abuse of the
writ under article 11.071, § 5(c) of the Texas Code of Criminal Procedure. 1
      Canales then returned to federal district court.                   The district court
granted discovery, allowing Canales to investigate his claims of state
misconduct and jury irregularity.              More than three years later, Canales
supplemented his habeas petition with additional evidence and arguments


      1   See infra Part III(B) for a more detailed discussion of the CCA’s ruling.
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                                  No. 12-70034
regarding the evidence the State allegedly withheld. The case was referred to
a magistrate judge.      The magistrate judge recommended that Canales’s
petition be denied because the claims were procedurally defaulted and Canales
could not prove cause and prejudice. The district court accepted the magistrate
judge’s report and recommendation with slight modifications; the court chose
not to reach certain parts of Canales’s Massiah and Brady claims because, even
if true, Canales could not prove prejudice. The district court granted a COA
on eight issues listed above.
                        II. STANDARD OF REVIEW
      “In an appeal of the district court’s denial of habeas relief, this court
reviews the district court’s findings of fact for clear error and its conclusions of
law de novo, applying the same standard of review that the district court
applied to the state court decision.” Roberts v. Thaler, 681 F.3d 597, 603 (5th
Cir. 2012) (citations and internal quotation marks omitted). The standard of
review that we apply to each claim, however, depends on whether the claim
has previously been adjudicated on the merits in state court.
A.    Independent and Adequate State Grounds
      Federal courts lack jurisdiction to review a habeas claim “if the last state
court to consider that claim expressly relied on a state ground for denial of
relief that is both independent of the merits of the federal claim and an
adequate basis for the court’s decision.”      Id. at 604 (citation and internal
quotation marks omitted). So, as a general rule, “a state prisoner’s habeas
claims may not be entertained by a federal court when (1) a state court [has]
declined to address [those] claims because the prisoner had failed to meet a
state procedural requirement, and (2) the state judgment rests on independent
and adequate state procedural grounds.” Maples v. Thomas, 132 S. Ct. 912, 922
(2012) (alterations in original) (internal quotation marks omitted). There is,
however, an exception to this rule. A federal court may consider the merits of
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                                 No. 12-70034
a procedurally defaulted claim if the petitioner shows “cause for the default
and prejudice from a violation of federal law.” Martinez v. Ryan, 132 S. Ct.
1309, 1316 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
      In order to demonstrate cause, the habeas petitioner must “show that
some objective factor external to the defense impeded counsel’s efforts to raise
the claim in state court.” McClesky v. Zant, 499 U.S. 467, 493 (1991) (citation
and internal quotation marks omitted). Examples of these objective factors
include “interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal basis for
a claim was not reasonably available to counsel.” Id. at 494 (citation and
internal quotation marks omitted).      “[T]he question is whether petitioner
possessed, or by reasonable means could have obtained, a sufficient basis to
allege a claim in the first petition and pursue the matter through the habeas
process.” Id. at 498. Once cause has been established, the habeas petitioner
must then show “actual prejudice.” United States v. Frady, 456 U.S. 152, 167
(1982) (internal quotation marks omitted). This means the petitioner must
prove that the errors “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Id. at 170.
B.    AEDPA Deference
      If, however, a state court adjudicated the claim on the merits, a different
standard of review applies under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), §§ 101-108, Pub. L. No. 104-132, 110 Stat. 1214
(codified as amended at 28 U.S.C. §§ 2244, 2253-2266). A federal court may
not grant habeas relief to any claim that was adjudicated on the merits in state
court, unless the state court’s adjudication
      (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

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                                  No. 12-70034
      (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). This is also known as AEDPA deference.
      A state court decision can be contrary to Supreme Court precedent in two
ways: (1) if “‘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].’”
Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005) (alterations in original)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). “A state court’s decision
is an unreasonable application of clearly established federal law whenever the
state court identifies the correct governing legal principle from the Supreme
Court’s decisions but applies that principle to the facts of the prisoner’s case in
an objectively unreasonable manner.” Id. (quoting Young v. Dretke, 356 F.3d
616, 623 (5th Cir. 2004) (internal quotation marks omitted)).                  “An
unreasonable application may also occur if ‘the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply.’” Id. at 787–88 (alteration in original)
(quoting Young, 356 F.3d at 623).       The state court’s factual findings are
presumed to be correct unless a petitioner “rebut[s] the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
                              III. DISCUSSION
      Our discussion proceeds in three parts.         First we address Texas’s
argument that the COA is invalid for several of Canales’s claims. Next, we
determine whether the CCA’s dismissal of Canales’s petition for a writ of



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                                  No. 12-70034
habeas corpus was based on independent and adequate state grounds. Then,
we turn to the eight claims on which the district court granted Canales a COA.
A.     Validity of the COA
       “Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from the final order in a habeas
corpus proceeding in which the detention complained of arises out of process
issued by a State court.”       28 U.S.C. § 2253(c)(1)(A).      “A certificate of
appealability may issue under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
The COA “shall indicate which specific issue or issues satisfy the showing
required” in § 2253(c)(2). Id. § 2253(c)(3).
       Texas argues that the COA is invalid as to Canales’s ineffective
assistance of counsel claims, his claim that the trial court rulings deprived him
of his right to present a defense, his cumulative impact claim, and his jury
claims. As Texas points out, if the district court denies a habeas petition on
procedural grounds, a COA should only issue if “the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
Texas claims that the district court only found that its merits rulings were
debatable; the district court did not make the requisite determination that its
procedural rulings were debatable. Thus, according to the State, the COA is
invalid, and we should dismiss these five claims due to procedural default.
       We disagree.     First, despite the seemingly mandatory language of
§ 2253(c)(3), the failure of the COA to meet the requirements of § 2253(c)(3)
does not deprive this court of jurisdiction. Gonzalez v. Thaler, 132 S. Ct. 641,
652 (2012). Second, the procedural rulings in this case are complicated, and
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                                  No. 12-70034
the parties devote a significant portion of their briefing to arguing about
whether the district court correctly determined that Canales’s claims were
procedurally defaulted.     Thus, even though the district court did not
specifically state that its procedural rulings were debatable, they are, see infra
Part III(B), and so the district court was correct to issue the COA. Thus,
because the § 2253(c)(3) requirement is not jurisdictional and the procedural
rulings are debatable, we decline to hold that the COA is invalid.
B.     Independent and Adequate State Grounds
       “[W]hen . . . a state court decision fairly appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the adequacy
and independence of any possible state law ground is not clear from the face of
the opinion,” the Supreme Court has directed federal courts to “accept as the
most reasonable explanation that the state court decided the case the way it
did because it believed that federal law required it to do so.” Michigan v. Long,
463 U.S. 1032, 1040–41 (1983). If, however, “it does not fairly appear that the
state court rested its decision primarily on federal grounds, it is simply not
true that the ‘most reasonable explanation’ is that the state judgment rested
on federal grounds.” Coleman, 501 U.S. at 737. “This distinction matters in a
Section 2254 proceeding because [this Court] do[es] not reach the merits when
the state court denied relief due to an adequate state law basis for the decision,
independent of the merits of the federal claim.” Balentine v. Thaler, 626 F.3d
842, 849 (5th Cir. 2010) (citing Coleman, 501 U.S. at 729).
       The CCA dismissed Canales’s state habeas petition as an abuse of the
writ, which this Court “[has] long acknowledged . . . can sometimes qualify as
an independent and adequate state-law ground that functions as a procedural
bar to federal-court merits review of habeas claims.” Rocha v. Thaler (Rocha
II), 626 F.3d 815, 829 (5th Cir. 2010). Under Texas law, when a petitioner files
a subsequent application for a writ of habeas corpus, a court “may not consider
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                                  No. 12-70034
the merits of or grant relief based on the subsequent application” unless the
petitioner shows:
      (1) the current claims and issues have not been and could not have
      been presented previously in a timely initial application or in a
      previously considered application filed under this article or Article
      11.07 because the factual or legal basis for the claim was
      unavailable on the date the applicant filed the previous
      application;
      (2) by a preponderance of the evidence, but for a violation of the
      United States Constitution no rational juror could have found the
      applicant guilty beyond a reasonable doubt; or
      (3) by clear and convincing evidence, but for a violation of the
      United States Constitution no rational juror would have answered
      in the state’s favor one or more of the special issues that were
      submitted to the jury in the applicant's trial under Article 37.071,
      37.0711, or 37.072.
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a). If the petitioner fails to meet
the requirements in § 5(a), the CCA dismisses the petition as an abuse of the
writ. Id. § 5(c).
      The CCA has interpreted § 5(a)(1) as actually involving two steps: (1) the
legal or factual basis of the claims were previously unavailable and (2) “the
specific facts alleged, if established, would constitute a constitutional violation
that would likely require relief from conviction.”      Ex parte Campbell, 226
S.W.3d 418, 421 (Tex. Crim. App. 2007). “Whether a § 5(a)(1) dismissal is
independent of federal law turns on case specific factors. If the CCA’s decision
rests on availability, the procedural bar is intact.” Rocha II, 626 F.3d at 835.
If, on the other hand, “the CCA determines the claim was unavailable but that
[the habeas petitioner did] not make a prima facie showing of merit, a federal
court can review that under the [standard set out in § 2254(d)]”. Id. This Court
has interpreted Campbell to mean that the CCA applies the separate § 5(a)(1)



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                                  No. 12-70034
steps sequentially. Id. at 834. If the CCA dismisses the petition under § 5(a)(2)
or § 5(a)(3), this Court can also review it under the standard in § 2254(d).
        The issue here is more complicated because the CCA dismissed Canales’s
subsequent habeas petition as an abuse of the writ under § 5(a) without
specifying whether it was doing so based on availability or based on the merits.
See Ex parte Canales, 2008 WL 383804, at *1 (“We have reviewed the
application and the briefs of both parties and find that all of the allegations
fail to satisfy the requirements of Article 11.071, § 5(a).”). This Court has
discussed how to deal with the CCA’s boilerplate dismissal for an abuse of the
writ before. See, e.g., Balentine, 626 F.3d at 849–57; Hughes v. Quarterman,
530 F.3d 336, 342 (5th Cir. 2008) (nothing in CCA’s “perfunctory dismissal” of
the petition “suggest[ed] that it actually considered or ruled on the merits”).
We have explained that we must first determine if the state court decision
“fairly appears to rest primarily on federal law, or to be interwoven with the
federal law.” Rocha II, 626 F.3d at 836 (quoting Coleman, 501 U.S. at 735)
(internal quotation marks omitted). “There must be more than silence. In
some form, the state court has to make a fair indication that the merits of the
claim were reached.” Balentine, 626 F.3d at 854. When the dismissal is silent,
this Court looks to the arguments made in state court to try to determine
whether the dismissal was based on independent and adequate state law or
whether instead it relied on or was interwoven with federal law. Id. at 854–
56.
        Here, the CCA’s dismissal of Canales’s petition did not specify on which
subsection of § 5(a) it rested. But the order did explain that the CCA had asked
for additional briefing on the following questions:
        (1) Is Wiggins v. Smith, 539 U.S. 510, 527 (2003), new law or such
        an extension of old law that this Court should hold that it meets
        the dictates of Article 11.071 § 5?

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      (2) If Wiggins is new law or such an extension of old law that it
      should meet the dictates of Article 11.071 § 5, under what standard
      should a court judge the effectiveness of counsel’s actions
      undertaken before the decision in Wiggins was announced?
Ex parte Canales, 2008 WL 383804 at *1.
      Canales uses this request for additional briefing to argue that the CCA’s
dismissal was not independent of federal law. He points out that the CCA
specifically asked for briefing on the merits of his Wiggins claim. Canales also
argues that the CCA knows how to make a clear statement that it is not
reaching the merits, see, e.g., Ex parte Foster, No. WR-65,799-03, at *2 (Tex.
Crim. App. Sept. 12, 2011) (unpublished); because the CCA did not make a
clear statement that it was avoiding the merits, Canales argues, the CCA
actually reached the merits. Finally, Canales attempts to distinguish his case
from others where we have found that a boilerplate dismissal was independent
of federal law. He claims that in those cases, the habeas petitioner had not
argued he could prove his claim was unavailable at the time of his first state
habeas application. See, e.g., Balentine, 626 F.3d at 855. But Canales argued
that he could show that his claim was unavailable, and thus he urges us to
hold that the CCA reached the merits of his petition.
      We find these arguments unpersuasive, and we hold that the CCA’s
dismissal of Canales’s petition was based on independent and adequate state
grounds. First, we consider all of Canales’s claims except his Wiggins claim.
We begin by noting that there is no indication that the CCA reached the merits
of any these claims. See Puckett v. Epps, 641 F.3d 657, 665 (5th Cir. 2011) (“To
avoid procedural bar, in some form, the state court has to make a fair indication
that the merits of the claim were reached.” (citation and internal quotation
marks omitted)). Canales’s subsequent state habeas petition confirms that we
should apply a procedural bar to these claims. Canales did not ask the CCA to
reach the merits of his claims. Instead, he argued that the legal and factual
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                                 No. 12-70034
bases of his claims were previously unavailable under Texas Code of Criminal
Procedure article 11.071, § 5(a)(1), and he asked the CCA to remand his claims
to state district court. The fact that the CCA dismissed his petition as an abuse
of the writ, instead of remanding them to state district court for a merits
determination, shows that the CCA dismissed them pursuant to § 5(a)(1). We
have previously held that “the Texas abuse of the writ doctrine has been
consistently applied as a procedural bar, and that it is an independent and
adequate state ground for the purpose of imposing a procedural bar.” Hughes,
530 F.3d at 342; see also Rocha II, 626 F.3d at 835 (“If the CCA’s decision rests
on availability, the procedural bar is intact.”). Thus, we apply the procedural
bar to these claims.
      While the question of whether the CCA’s dismissal of Canales’s Wiggins
claim is interwoven with federal law is more difficult to resolve, we hold that
the procedural bar applies to his Wiggins claim. As Canales points out, there
is some indication that the CCA may have reached the merits of Canales’s
Wiggins claim: the CCA asked for briefing on the merits of that claim. So, we
must look to the arguments made in state court to try to determine whether
the dismissal was based on independent and adequate state law or whether
instead it relied on or was interwoven with federal law. See Balentine, 626
F.3d at 854–56. In his subsequent state habeas petition, Canales argued that
“the legal basis for his claims was previously unavailable.” See Tex. Code Crim.
Proc. Ann. art. 11.071, § 59(a)(1). As with his other claims, Canales did not
ask the CCA to reach the merits of his Wiggins claim. While he argued that
he could meet the standards set out in § 5(a)(2) and § 5(a)(3), he did not ask
the CCA to make that decision, instead asking the CCA to remand his Wiggins
claim to Texas state district court. As we discussed above, the CCA’s decision
to dismiss his application without remanding it to the state district court shows
that its decision rested on independent and adequate state grounds.           Cf.
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                                  No. 12-70034
Coleman, 501 U.S. at 744 (“There is no doubt that the Virginia Supreme
Court’s ‘consideration’ of all filed papers [which discussed the merits of
Coleman’s federal claims] adds some ambiguity, but we simply cannot read it
as overriding the court’s explicit grant of a dismissal motion based solely on
procedural grounds. Those grounds are independent of federal law.”).
       Thus, we hold that a procedural bar applies to all of Canales’s claims.
C.     Claims on which the District Court Granted a COA
       As discussed above, we agree with the district court’s decision to apply a
procedural bar to all of Canales’s claims. Because his claims are procedurally
defaulted, we will not review them unless Canales “can demonstrate cause for
the default and actual prejudice as a result of the alleged violation[s] of federal
law.” Coleman, 501 U.S. at 749.
       1. Ineffective Assistance of Counsel (Wiggins Claim)
       Canales argues that he received ineffective assistance of counsel during
both the guilt and sentencing phases of his trial. When the district court
considered these claims, it found that Canales could not prove cause and
prejudice to excuse the procedural default. But since the district court issued
its opinion, the Supreme Court has clarified the ways a habeas petitioner can
show cause to excuse a procedural default.
       The district court’s procedural ruling relied on our decision in Ibarra v.
Thaler, 687 F.3d 222 (2012), overruled by Trevino v. Thaler, 133 S. Ct. 1911
(2013). Ibarra held that Martinez v. Ryan, 132 S. Ct. 1309 (2012), did not apply
in Texas. In Martinez, the Supreme Court considered for the first time whether
ineffective assistance of counsel in an initial-review collateral proceeding could
provide cause to excuse procedural default of a claim for ineffective assistance
of trial counsel. Martinez, 132 S. Ct. at 1316. The Supreme Court answered
in the affirmative, holding that when an initial-review collateral proceeding is
the first time a petitioner can raise a claim for ineffective assistance of trial
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                                  No. 12-70034
counsel, the ineffective assistance of counsel in that initial-review collateral
proceeding can provide cause to excuse the procedural default. Martinez, 132
S. Ct. at 1318. In Ibarra, we reasoned that Martinez did not apply in Texas
because Texas law did not require that a Texas defendant raise his ineffective
assistance of trial counsel claim for the first time in a collateral proceeding.
Ibarra, 687 F.3d at 227. But in Trevino, the Supreme Court explained that
Martinez applies in Texas because the “state procedural framework, by reason
of its design and operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921. Thus,
in light of Trevino, there is a proving cause for procedural default that was not
available when Canales was before the district court.
      In order to establish cause to excuse his procedural default, Canales
must prove that his counsel in the initial-review collateral proceeding was
deficient; that is, he must show that the representation of his initial-review
collateral proceeding “fell below an objective standard of reasonableness.” See
Strickland v. Washington, 466 U.S. 668, 688 (1984); see also Martinez, 132 S.
Ct. at 1318 (citing Strickland as the appropriate standard for judging whether
state habeas counsel was ineffective). As part of establishing cause, Canales
must also show that “the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner must demonstrate
that the claim has some merit.” Martinez, 132 S. Ct. at 1318 (citing Miller-El
v. Cockrell, 537 U.S. 322 (2003)).
      To excuse the procedural default fully, Canales would then be required
to prove that he suffered prejudice from the ineffective assistance of his trial
counsel. See Martinez, 132 S. Ct. at 1321 (remanding to the court of appeals
to “address the question of prejudice”). Prejudice requires a showing that there
is “a reasonable probability that, but for [trial] counsel’s unprofessional errors,
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                                 No. 12-70034
the result of the proceeding would have been different.           A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Sells v. Stephens, 536 F. App’x 483, 493
(5th Cir. 2013) (unpublished) (“In order to satisfy the performance prong, Sells
must show that both his trial and habeas counsels’ representation fell below
an ‘objective standard of reasonableness.’ Under the second prong, Sells must
show that there is ‘a reasonable probability that, absent the errors, the
sentence . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” (citations omitted)).
      We look first at Canales’s claim that his trial counsel was ineffective
during the guilt phase of his trial. Canales first argues that his trial counsel
failed to impeach witnesses effectively.    Second, Canales claims his trial
counsel was ineffective in affirmatively aiding the State in proving part of his
murder charge. Canales was charged under Texas Penal Code § 19.03(a)(5)(B)
“which makes it a capital offense for a person to knowingly or intentionally
murder another person, while incarcerated in a penal institution, with the
intent to establish, maintain, or participate in a combination or in the profits
of a combination.” Canales, 98 S.W.3d at 692–93. He argues that his trial
counsel essentially conceded the combination element when they tried to
inculpate Whited, who was a member of the Texas Mafia, in the murder.
      The problem is that Canales has not established cause for the procedural
default of his claim of ineffective assistance of trial counsel during the guilt
phase because the claim is not substantial. Though Canales argues his trial
counsel should have impeached witnesses more effectively, our review of the
record shows that the jury actually heard testimony regarding the witnesses’
inconsistent statements, racism, and potential bias against Canales—the
evidence that he claims his trial counsel should have used for impeachment.
In addition, there was other evidence—aside from testimony tying Whited to
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                                 No. 12-70034
the murder—that proved the combination element. The state put forward
evidence of Canales’s membership in the Texas Mafia that proved the
combination element of the crime even without any inculpating Whited in the
murder. See Canales, 98 S.W.3d at 697. Thus, because Canales’s claim of
ineffective assistance of trial counsel during the guilt phase of his trial lacks
merit, he cannot prove cause to excuse the procedural default.
      We turn next to Canales’s claim that he received ineffective assistance
of trial counsel during the sentencing phase of his trial. Canales argues his
trial counsel was ineffective because he failed to thoroughly investigate and
present mitigation evidence. He also argues that the performance of his state
habeas counsel fell below an objective standard of reasonableness. Canales’s
state habeas counsel did not conduct a mitigation investigation due to a
misunderstanding of funding for habeas investigations: his state habeas
counsel thought his funding was capped at $25,000, and so he only dedicated
$2,500 to investigation—and most of that went to issues related to innocence.
Both parties agree, however, that funding was not capped at $25,000.
      First, we agree with Canales that the performance of his state habeas
counsel fell below an objective standard of reasonableness. The Supreme Court
recently considered a similar situation in which trial attorney failed to request
additional funding to replace an inadequate expert because of a mistaken belief
about the amount of funding available. Hinton v. Alabama, 134 S. Ct. 1081,
1088 (2014) (per curiam). The Court held that the trial lawyer’s decisions
“based not on any strategic choice but on a mistaken belief that available
funding was capped [at a certain amount]” constituted deficient performance.
Hinton, 134 S. Ct. at 1088–89. Similarly, Canales’s state habeas counsel did
not make a strategic choice to forego a mitigation investigation. Instead, he
chose not to pursue that claim in any depth because he thought he could not


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                                 No. 12-70034
receive any additional funding to pursue those claims.         Accordingly, his
performance fell below an objective standard of reasonableness.
      Because Canales has established that his state habeas counsel’s
behavior was deficient, we now consider whether there is some merit to his
claim that his trial counsel were ineffective at sentencing. By Canales’s trial
counsel’s own admission, they did not conduct any mitigation investigation. A
declaration from his trial counsel shows that trial counsel did not hire a
mitigation specialist, interview family members or others who knew him
growing up, or “collect any records or any historical data on his life.” During
sentencing, the only mitigation evidence his counsel presented was that he was
“a gifted artist” and “a peacemaker in prison.” Even the prosecutor noticed the
dearth of any mitigating evidence, stating “it’s an incredibly sad tribute that
when a man’s life is on the line about the only good thing we can say about him
is that he’s a good artist.”
      If Canales’s trial attorneys had conducted a mitigation investigation,
they would have discovered an extensive history of physical abuse, emotional
abuse, and neglect. Canales’s mother was an alcoholic who neglected her
children, and his father was violent, angry, and irrational. After Canales’s
parents separated, his mother married a man who was physically abusive,
beating Canales with a belt and fist and forcing him to strip naked prior to
these beatings. Canales’s step-father sexually abused his sister, and Canales
attempted, in vain, to protect her. The family lived in poor housing, infested
with flea and lice and located in “gang central.” Canales’s grandparents were
also physically and verbally abusive. Eventually, Canales’s mother left him
with his father. The beatings then resumed, and Canales’s father would beat
him “until his father got tired.” This led Canales to abuse drugs and alcohol,
“hook[] up with the wrong people,” and begin committing crimes. He lived in
half-way houses for part of his teenage years. Canales’s sister stated that the
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                                  No. 12-70034
death of Canales’s mother impacted Canales severely and that he “went off the
deep end” after she passed away.
      Based on these facts, we hold that Canales’s ineffective assistance of trial
counsel claim has some merit. First, we conclude that Canales’s trial counsel’s
performance was deficient during the sentencing phase. A decision not to
investigate “must be directly assessed for reasonableness in all the
circumstances.” See Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at
691). Considering all of the circumstances here, Canales’s trial attorneys’
performance was not reasonable. His trial counsel did not make a reasoned
decision not to conduct a mitigation investigation. Cf. Wood v. Allen, 558 U.S.
290, 301–03 (2010) (denying habeas relief and noting that “counsel’s failure to
pursue or present evidence of [the defendant’s] mental deficiencies was not
mere oversight or neglect but instead the result of a deliberate decision to focus
on other defenses”). His trial counsel’s failure to consider mitigation evidence
had nothing to do with Canales or any attempt on his part to obstruct his trial
counsel in pursuing an investigation into mitigating evidence.          Compare
Schriro v. Landrigan, 550 U.S. 465, 478–81 (2007) (state court did not
unreasonably apply Strickland in denying habeas relief where the defendant
refused to allow his counsel to present mitigating evidence from his family and
the only other mitigating evidence was that the defendant may have a genetic
predisposition to violence), with Rompilla v. Beard, 545 U.S. 374, 381 (2005)
(state court unreasonably applied Strickland in denying habeas relief where
defendant was merely “uninterested in helping” and other mitigating evidence
included school records and records of prior incarcerations). Simply put, his
counsel’s failure to do any investigating “resulted from inattention, not
reasoned strategic judgment.” See Wiggins, 539 U.S. at 256.
      Second, Canales has shown that there is some merit to the claim that he
was prejudiced by his trial counsel’s deficient behavior during sentencing. The
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                                 No. 12-70034
only mitigation evidence put forward during sentencing was that Canales was
a gifted artist and a peacemaker in prison. The jury did not hear any evidence
regarding Canales’s childhood, which was full of violence and privation. While
there was certainly evidence to support a finding of future dangerousness, we
are not convinced that evidence is enough to say that Canales’s claim is not
substantial. We are persuaded that the Supreme Court’s decisions in Williams
v. Taylor, 529 U.S. 362 (2000), and Rompilla v. Beard, 545 U.S. 374 (2005)
show that Canales’s claim has, at the very least, some merit. See Rompilla,
545 U.S. at 390–93 (state court decision denying habeas relief was
unreasonable where additional mitigation investigation regarding the
defendant’s abusive, impoverished childhood and alcohol-related causes of the
defendant’s juvenile incarcerations might have influenced the jury’s evaluation
of culpability); Williams, 529 U.S. at 398–99 (state court decision denying
habeas relief was unreasonable where new mitigation evidence, including “the
graphic description of [the defendant’s] childhood, filled with abuse and
privation, or the reality that he was ‘borderline mentally retarded,’ might well
have influenced the jury’s appraisal of his moral culpability” despite the
“strength of the prosecution evidence supporting the future dangerous
aggravating circumstance”). Given all this, there is some merit to the notion
that, had trial counsel’s performance not been deficient during sentencing, “at
least one juror would have struck a different balance.” See Wiggins, 539 U.S.
at 537. Thus, we conclude that Canales’s claim of ineffective assistance of trial
counsel during sentencing is substantial.
      The question then becomes whether Canales can actually prove prejudice
due to the deficient performance of his habeas counsel. Claims of ineffective
assistance of counsel present a mixed question of law and fact.         Lamb v.
Johnson, 179 F.3d 352, 356 (5th Cir. 1999). And, as the Supreme Court has
explained, “the district court is better positioned” than appellate courts to
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                                       No. 12-70034
address mixed questions of law. See Brown v. Plata, 131 S. Ct. 1910, 1932
(2011) (internal quotation marks and citations omitted). The district court,
though, has not yet addressed Canales’s ineffective assistance of counsel claim
because its order was issued before Trevino. Moreover, Canales has not yet
had the chance to develop the factual basis for this claim because, until
Trevino, it was procedurally defaulted. While there is sufficient information
before this Court for us to conclude that there is some merit to Canales’s claim
of ineffective assistance of counsel, we think the district court should address
the prejudice question in the first instance. Our recent post-Trevino decisions
support this decision. In cases where the district court made its decision before
Trevino and the district court did not make an alternative merits
determination, we have remanded the case to the district court. See Balentine
v. Stephens, 553 F. App’x 424, 425 (5th Cir. 2014) (per curiam) (unpublished);
Trevino v. Stephens, 740 F.3d 379 (5th Cir. 2014) (per curiam).
       Thus, we hold that Canales has established cause to excuse the
procedural default of his claim of ineffective assistance of trial counsel at
sentencing. We remand this claim for the district court to consider whether
Canales can prove prejudice as a result of his trial counsel’s deficient
performance, and if so, to address the merits of his habeas petition on this
claim. 2
       2. Use of State Agent to Solicit Incriminating Evidence (Massiah Claim)
       Canales argues that Texas used Innes as a state agent to solicit
incriminating evidence from him after he was indicted in violation of his Sixth
and Fourteenth Amendment rights. An individual’s Sixth Amendment rights



       2  Texas argues that if we decide to remand any claims to the district court, we should
deny Canales the opportunity to have an evidentiary hearing. We decline to take this step,
and we leave the determination of whether an evidentiary hearing is appropriate to the
district court.
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                                No. 12-70034
have been violated when the state is allowed to use “against him at his trial
evidence from his own incriminating words, which [state] agents had
deliberately elicited from him after he had been indicted and in the absence of
his counsel.” Massiah v. United States, 377 U.S. 201, 206 (1964). A Massiah
violation has three elements: “(1) the Sixth Amendment right to counsel has
attached; (2) the individual seeking information from the defendant is a
government agent acting without the defendant’s counsel’s being present; and
(3) that agent ‘deliberately elicit[s]’ incriminating statements from the
defendant.” Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006). The
right to counsel attaches when the defendant is indicted. See Patterson v.
Illinois, 487 U.S. 285, 290–91 (1988). A Massiah violation can occur when the
government agent is an undisclosed government informant. See United States
v. Henry, 447 U.S. 264, 269–74 (1980).
      Canales argues he can establish both cause and prejudice. The dispute
here focuses on the February 2000 letter, which Canales wrote to Innes. In the
letter, Canales appears to ask the gang to retaliate against Larry Whited
because Canales believed Whited had turned him in for his role in Dickerson’s
killing. Canales argues that Innes was already working for the state by the
time Canales was indicted in November 1999.        He also claims the Texas
encouraged Innes to elicit inculpatory information from him. Canales further
claims that Texas suppressed the information that Innes was working as a
state agent. Thus, Canales claims he can show cause for the procedural default
because state officials prevented him from learning this information.
      Canales also argues that this had a substantial and injurious effect on
his trial and his sentence. He claims the February 2000 letter was necessary
to introduce the 1998 confessional letter. Canales explains the February 2000
letter was matched to him through his fingerprint. He argues the prosecution
used that fingerprint to admit the 1998 confessional letter. He then claims
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                                 No. 12-70034
that without the 1998 confessional letter, the state would only have had the
testimony of unreliable inmate witnesses.       Moreover, he argues that the
prosecution used the February 2000 letter as evidence of his future
dangerousness, which it needed for Canales to receive the death penalty. Thus,
he claims he has shown actual prejudice.
      Even if Canales could establish cause, we hold he cannot prove actual
prejudice based on these alleged violations. Looking at the guilt phase of the
trial, Canales’s primary argument is that, without the February 2000 letter,
Texas could not have admitted the 1998 confessional letter.             But the
prosecution relied on more than fingerprint evidence to authenticate the 1998
confessional letter: the State also offered testimony matching the letter to
Canales’s handwriting.     Though Canales disparages this as lay-witness
testimony, he does not argue that it would have been insufficient to admit the
1998 letter. Further, under the Texas Rules of Evidence, nonexpert opinion on
handwriting can be used to authenticate and identify documents. Tex. R. Evid.
901. Thus, the confessional letter could have been admitted even without the
February 2000 letter.
      Turning next to sentencing, the state did not rely solely on the February
2000 letter to prove future dangerousness. Cf. Westbrook v. Thaler, 585 F.3d
245, 256 (5th Cir. 2009) (holding that the alleged Massiah violation in
mistakenly admitting evidence that the defendant solicited the murder of three
people did not have a substantial and injurious effect on sentencing in light of
evidence that the defendant had murdered five people and solicited murders of
two others). The jury had the April 2000 letter, wherein Canales threatened
informants. The jury had evidence that Canales was part of a gang, and that
Canales had committed murder in connection with his prison gang (because
the jury had convicted him based on the combination element). The jury also
knew that Canales was in prison serving a fifteen-year sentence for aggravated
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                                      No. 12-70034
sexual assault and that he had already served a five-year sentence on an
earlier sexual assault. Thus, Canales has not proven that the alleged Massiah
violation had a substantial and injurious effect on his trial. 3
       3. Failure to Correct False Testimony (Giglio/Napue Claim)
       Canales next argues that the state solicited false testimony from Innes,
or at least, allowed testimony the State knew was false to go uncorrected. The
Supreme Court has repeatedly held that “a conviction obtained through false
evidence, known to be such by representatives of the State” violates a
defendant’s constitutional rights. See Miller v. Pate, 386 U.S. 1, 7 (1967) (citing
cases). A violation occurs where there is a “deliberate deception of court and
jury by the presentation of testimony known to be perjured.”                   Mooney v.
Holohan, 294 U.S. 103, 112 (1935). “The same result obtains when the State,
although not soliciting false evidence, allows it to go uncorrected when it
appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959). To obtain relief, Canales
must show “1) the testimony was actually false, 2) the state knew it was false,
and 3) the testimony was material.” Pyles v. Johnson, 136 F.3d 986, 996 (5th
Cir. 1998) (internal quotation marks and citations omitted). The testimony is
material if “there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97,
103 (1976) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).



       3 Texas suggests that the district court improperly reached the merits of Canales’s
Massiah claim. The magistrate judge’s report and recommendations indicates that the
magistrate judge reached the merits, but the district court made some modifications when it
accepted the proposed findings and recommendations. Specifically, the district court stated
that it had determined “that the admission of the [February 2000] letter did not have a
substantial and injurious effect or influence in determining the jury verdict.” The district
court’s language mirrors language the Supreme Court has used to define prejudice. See
Frady, 456 U.S. at 170 (explaining proving actual prejudice means the petitioner must prove
that the errors “worked to his actual and substantial disadvantage”). Thus, we agree with
the district court’s decision to deny Canales’s Massiah claim because it was procedurally
defaulted and conclude he did not prove actual prejudice.
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                                     No. 12-70034
      Neither party disputes that Canales can establish cause for procedurally
defaulting this claim, but the parties disagree over whether the testimony was
false and whether it was material. Canales argues Innes gave false testimony
about the 1998 confessional letter. Canales says Innes testified he asked
Canales to write him a letter describing Dickerson’s murder, and he watched
Canales tie the kite 4 on a string that Innes pulled into his cell. But Canales
says a prison official’s handwritten notes from a meeting with Innes show that
another inmate received the letter from Canales. 5 Canales argues that the
state had access to the prison official’s notes, and so the state knew Innes’s
trial testimony was false. Further, he argues it was material because Innes’s
credibility was important, and knowing this false testimony would have given
a different picture of the state’s case.
      We disagree and hold that the district court was correct to deny this
claim. First, Canales has not established that Innes’s testimony was false or
that the State knew that it was false. The prison official’s handwritten notes
are not dated; they do not say whose comments were being recorded; and they
do not mention Innes at all. As the district court concluded, it is far from clear
that the notes even refer to Innes. Moreover, while Innes was an important
witness, the interview notes do not directly contradict his testimony. The notes
do not state that Innes was the subject of the interview; if the notes were from


      4 According to trial testimony, a kite is a handwritten note that is written between
inmates.
      5 According to both parties, the notes stated in full:

             written by Canales
             Another inmate has the letter - he’s not involved @
             all – will have to get the letter from him
             Another inmate rec the letter from Canales
             This inmate sent me the letter to see it
             The letter is step for step how the letter [sic]
             went down.
             The letter is in Canales’ handwriting

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                                  No. 12-70034
an interview with someone else, Innes could be the other inmate referenced in
the interview notes who received Canales’s letter. Cf. United States v. Fisher,
106 F.3d 622, 634–35 (5th Cir. 1997) (finding Brady violation where the false
testimony was “directly contradictory”), abrogated on other grounds by Ohler
v. United States, 529 U.S. 753 (2000).
      Moreover, even if the testimony was false, Canales has not established
that the testimony was material. While the confessional letter itself was very
important to the prosecution’s case, the allegedly false testimony only served
to explain how Innes received the letter, not to the substance of the letter. So,
even if the false testimony might have made the jury question Innes’s
credibility, it would not have changed the fact that the letter was signed by
Canales, written in Canales’s handwriting, and described Dickerson’s murder.
Thus, we cannot say that there is a reasonable likelihood that the false
testimony affected the judgment of the jury, and so the district court correctly
denied Canales’s false testimony claim.
      4. Failure to Disclose Impeachment Evidence (Brady Claim)
      Canales argues that Texas suppressed several pieces of impeachment
evidence in violation of his Sixth and Fourteenth Amendment rights. In Brady
v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. “There
are three components of a true Brady violation”: (1) the evidence at issue,
whether exculpatory or impeaching, must be favorable to the accused; (2) “that
evidence must have been suppressed by the State, either willfully or
inadvertently”; and (3) “prejudice must have ensued.” Strickler v. Greene, 527
U.S. 263, 281–82 (1999).


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                                 No. 12-70034
      Evidence is material for purposes of Brady “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different,” meaning the probability is
“sufficient to undermine confidence in the outcome.” United States v. Bagley,
473 U.S. 667, 682 (1985) (internal quotation marks omitted). To evaluate
materiality, courts should not simply ask whether, “after discounting the
inculpatory evidence in light of the undisclosed evidence, the remaining
evidence is sufficient to support the jury’s conclusions.” Strickler, 527 U.S. at
290. Instead, the proper inquiry is whether “the favorable evidence could
reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. The materiality of the suppressed
evidence should be assessed collectively. Kyles v. Whitley, 514 U.S. 419, 436
(1995).   The prejudice component is the same as materiality for Brady
purposes. Banks v. Dretke, 540 U.S. 668, 691 (2004) (“[C]oincident with the
third Brady component (prejudice), prejudice within the compass of the ‘cause
and prejudice’ requirement exists when the suppressed evidence is ‘material’
for Brady purposes.”).
      Though neither party disputes that Canales can demonstrate cause for
his procedural default, they disagree about whether Canales can prove
prejudice. Canales argues the state suppressed five pieces of impeachment
evidence. First, Innes was also a suspect in Dickerson’s murder. Second, Innes
had a weapon-possession charge dismissed as in exchange for testifying.
Third, the State assisted inmate witnesses with issues concerning housing,
prison conditions, and parole. Fourth, the State encouraged Innes and Whited
to communicate with each other before trial. Fifth, Innes continued in prison
gang activities after renouncing his membership. Canales claims that witness
credibility was an important issue in the case, and that looking at the


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                                 No. 12-70034
cumulative impact of this evidence, there is a reasonable probability the
outcome would have been different.
      We hold that Canales has not demonstrated actual prejudice that would
excuse the procedural default. Turning first to Canales’s claim that the State
assisted prisoners who testified against him, the record shows that the jury
heard at least some of this information at trial. Canales’s attorneys at least
asked some inmate–witnesses about being encouraged to help the State in
exchange for benefits, such as help with their cases and being moved to a
different prison. “The materiality of Brady material depends almost entirely
on the value of the evidence relative to the other evidence mustered by the
state.” Rocha v. Thaler (Rocha I), 619 F.3d 387, 396 (5th Cir. 2010) (quoting
United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004) (internal quotation
marks omitted)). Our Court has granted habeas relief based on Brady claims
when the impeachment evidence that was withheld was the only direct
evidence linking the defendant to the crime. See LaCaze v. Warden La. Corr.
Inst. for Women, 645 F.3d 728, 738 (5th Cir. 2011); Tassin v. Cain, 517 F.3d
770, 779–81 (5th Cir. 2008). We have also considered it important if the
prosecutor told the jury that the witnesses had no reason to lie. LaCaze, 645
F.3d at 738; Tassin, 517 F.3d at 781. Neither of those circumstances is present
here. In this case, the witness testimony was not the only evidence linking the
defendant to the crime; the jury had Canales’s letter describing Dickerson’s
murder. In addition, the prosecutor raised the issue of the inmate–witness’s
credibility, telling the jury that reliance on inmate testimony was a “legitimate
concern,” that “inmates lie,” and stating “I would be an utter fool to stand here
and try to convince you to believe everything our witnesses told you.”
      Turning next to Canales’s claims about the information that was
allegedly withheld about Innes, we note that Canales’s attorney questioned
Innes about the deal he received in exchange for his testimony. The jury heard
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                                 No. 12-70034
that Innes had a pending weapon charge that, combined with his two prior
convictions, could have resulted in a 99-year sentence, but that Innes only
received two three-year sentences to run concurrently.
      While the allegation that the State suppressed the fact that Innes was a
suspect is more serious, that does not change our conclusion. This Court and
other courts have sometimes held that withholding evidence of another suspect
was a Brady violation, particularly when the other evidence linking the
defendant to the crime was limited. See, e.g., Graves v. Dretke, 442 F.3d 334,
343–44 (5th Cir. 2006) (finding a Brady violation where, had the defense
known about the other suspect, the defense could have “persuasively argued”
that the other suspect had committed the murder and the evidence at trial
rested “almost entirely on [the other suspect’s] testimony”); Bowen v. Maynard,
799 F.2d 593, 610–13 (10th Cir. 1986) (holding there was a Brady violation
when the “only identification evidence against the defendant was significantly
impeachable” with the evidence of the other suspect that was withheld). But
there is not a Brady violation every time the government does not disclose an
alternative suspect, especially when the other suspect was not a particularly
plausible one. See, e.g., Spence v. Johnson, 80 F.3d 989, 998–99 (5th Cir. 1996)
(holding there was no Brady violation when, even if the defense counsel had
had information about the other suspect at trial, the prosecution would have
been able to “exonerate[e]” the other suspect with other facts).
      Here, unlike in Graves and Bowen, there was still other evidence besides
Innes’s testimony at trial that would have supported the verdict, namely the
1998 confessional letter describing the murder step-by-step. Given this, and
considering the materiality of the Brady material relative to the other evidence
at trial, there is not a reasonable probability that the verdict would have been




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                                        No. 12-70034
changed if Canales had known this information.                    Thus, the district court
correctly denied Canales habeas petition on these claims. 6
       5. Trial Court Rulings, Cumulative Effect, and Jury Claims
       Canales also argues that (1) the trial court’s rulings violated his right to
present a defense; (2) the cumulative effect of his ineffective assistance of
counsel and the withholding of evidence violated his right to due process; and
(3) his Sixth, Eight, and Fourteenth Amendment rights were violated because
several jurors lied about their criminal background.                       Canales did not
separately brief these claims, instead relying on another portion of his brief in
which he argued that the state court’s ruling was not based on independent
and adequate state grounds. While that portion of the brief attempted to
establish cause for the procedural default of these claims, Canales never
argued that these alleged constitutional violations resulted in actual prejudice.
“It is a well worn principle that the failure to raise an issue on appeal
constitutes waiver of that argument.” See United States v. Griffith, 522 F.3d
607, 610 (5th Cir. 2008) (citing United States v. Thibodeaux, 211 F.3d 910,
912(5th Cir. 2000). Because Canales has waived any argument that he can
establish prejudice that would excuse his procedural default, we will not
address these issues on appeal.




       6  As it did with the Massiah claim, Texas again argues that the district court
improperly reached the merits of this claim. In its order denying Canales’s petition, the
district court explained that the standard for the prejudice element of cause and prejudice
and the standard for materiality under Brady are the same. The district court then stated,
“Because the Court accepts the Magistrate Judge’s proposed finding of no prejudice, it would
be equally correct to characterize the disposition of this claim as a dismissal under the
doctrine of procedural default or as a denial of the substantive claim on the merits.” Texas
argues that was error, because a federal court should not reach the merits of a claim that has
been procedurally defaulted unless the petitioner can prove cause and prejudice. We agree,
and so in affirming the district court’s decision, we clarify that our holding rests on procedural
default without reaching the merits of Canales’s claim.

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                                  No. 12-70034
      6. Shackling Claim
      Canales argues that his Fifth, Sixth, and Fourteenth Amendment rights
were violated when he was shackled during the sentencing phase of his trial.
The district court reached the merits of this claim, because it found Canales
had presented it both in his direct appeal and in his first state habeas petition,
and the state court adjudicated this claim on the merits. On appeal, however,
Texas argues Canales did not present his claim in state court, and so it is
procedurally defaulted.
      We agree with Texas that Canales did not fairly present his shackling
claim in state court.     “The exhaustion requirement is satisfied when the
substance of the federal habeas claim has been fairly presented to the highest
state court.” Whithead v. Johnson, 157 F3d 384, 387 (5th Cir. 1998). For a
claim to have been fairly presented, the state court must “be alerted to the fact
that the prisoners are asserting claims under the United States Constitution.”
Duncan v Henry, 513 U.S. 364, 365–66 (1995) (per curiam). Vague or fleeting
references to principles of constitutional law are not enough, see Wilder v.
Cockrell, 274 F.3d 255, 260 (5th Cir. 2001), nor will the fact that the petitioner
made a “somewhat similar state-law claim” suffice, see Anderson v. Harless,
459 U.S. 4, 6 (1982).
      The Supreme Court has required a petitioner to be clear that he is
making a constitutional argument in his state habeas petition before
concluding that the constitutional claim was “fairly presented.” In Picard v.
Connor, 404 U.S. 270 (1971), the habeas petitioner had argued that his
indictment was improper under state law and had also obliquely referenced
due process before the state’s highest court. See id. at 277. But the federal
appellate court had found the habeas petitioner’s rights under the Equal
Protection Clause had been violated. Id. The Court disagreed that the state
court had had an opportunity to rule on his constitutional claim. Id. It “[could
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                                 No. 12-70034
not] fault [the state court] for failing also to consider sua sponte whether the
indictment procedure denied respondent equal protection of the laws.” Id.; see
also Duncan, 513 U.S. at 366.
      After reviewing Canales’s first state habeas petition, we conclude that
Canales did not “fairly present” his constitutional claim in his first state
habeas petition. Canales relied primarily on Texas state court cases, arguing
that his shackling was improper under Gammage v. State, 630 S.W.2d 309
(Tex. App.—San Antonio 1982, pet. ref’d.). While Canales quoted from Illinois
v. Allen, 397 U.S. 337 (1970), which established that unnecessary shackling
during trial was a violation of the defendant’s constitutional rights, and noted
that Gammage cited Allen, Canales did not cite Allen for its constitutional
holding. Rather, he only argued that the trial court “abused its discretion and
unfairly prejudiced” him when it allowed him to be shackled during the
punishment phase of his trial. The state trial court’s ruling on the shackling
claim, which the CCA adopted, makes no indication that the court saw this
issue as a constitutional one. “[A] claim for relief in habeas corpus must
include reference to a specific federal constitutional guarantee, as well as a
statement of the facts which entitle the petitioner to relief.”         Gray v.
Netherland, 518 U.S. 152, 162–63 (1996). Because it does not appear that
Canales’s shackling claim was fairly presented in his first state habeas
petition, we hold that this claim was procedurally defaulted.
      Next, we consider whether Canales has established cause and prejudice
to excuse the procedural default.      But Canales does not argue cause or
prejudice; instead, he only argues that the state court reached the merits of
this claim during his first habeas petition and that it warrants relief. When
he filed his reply brief, Canales was on notice that Texas had argued that his
shackling claim had not been fairly presented to the state court in his first
habeas petition. He knew, too, that if we held that his claim had not been fairly
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                                No. 12-70034
presented in his first habeas petition and was instead procedurally defaulted,
he would need to argue he could overcome that by showing cause and prejudice.
Canales, though, did not address these arguments at all in his reply brief.
Thus, his shackling claim was inadequately briefed and abandoned, and we
will not reach it on appeal. See United States v. Cothran, 302 F.3d 279, 286
n.7 (5th Cir. 2002) (arguments not adequately briefed were considered
abandoned).
                            IV. CONCLUSION
     We REVERSE the district court’s dismissal of Canales’s claim that he
received ineffective assistance of trial counsel during sentencing, and we
REMAND for the district court to consider whether Canales can prove
prejudice. As to all other claims, we AFFIRM.




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