                           Revised November 21, 2000

1                    IN THE UNITED STATES COURT OF APPEALS

2                            FOR THE FIFTH CIRCUIT


3                            ____________________

4                                No. 00-20159
5                            ____________________


6         DENNIS THURL DOWTHITT

7                                              Petitioner - Appellant

8         v.

 9        GARY L. JOHNSON, DIRECTOR,
10        TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
11        INSTITUTIONAL DIVISION


12                                             Respondent - Appellee


13   _________________________________________________________________

14              Appeal from the United States District Court
15                   for the Southern District of Texas
16   _________________________________________________________________
17                            October 16, 2000

18   Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
19   Judges.

20   KING, Chief Judge:

21        Texas death row inmate Dennis Thurl Dowthitt appeals from

22   the district court’s denial of habeas corpus relief.    In order to

23   obtain review of his claims, Dowthitt seeks a certificate of

24   appealability (COA) from this court, pursuant to 28 U.S.C.

25   § 2253(c)(2).   We deny Dowthitt’s request for a COA.
26                    I.   FACTUAL AND PROCEDURAL BACKGROUND

27        At Dowthitt’s trial, the State presented evidence that

28   Dowthitt and his son, Delton Dowthitt (“Delton”), age 16, picked

29   up Gracie and Tiffany Purnhagen, ages 16 and 9, respectively, on

30   June 13, 1990 in a bowling alley parking lot.     According to

31   Delton’s testimony at Dowthitt’s trial, Dowthitt sexually

32   assaulted Gracie with a beer bottle and cut her throat with a

33   knife.1    Meanwhile, Delton strangled Tiffany with a rope.2

34        Following a jury trial, Dowthitt was convicted of the murder

35   of Gracie Purnhagen committed in the course of aggravated sexual

36   assault.    On October 9, 1992, based on the jury’s answers,

37   Dowthitt was sentenced to death for capital murder.       The Texas

38   Court of Criminal Appeals affirmed his conviction and sentence on

39   June 26, 1996.     See Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim.

40   App. 1996).

41        On August 18, 1997, Dowthitt filed a state petition for

42   habeas relief.    The state district court, on March 6, 1998,

43   entered findings of fact and conclusions of law and recommended

44   that habeas relief be denied.     The Court of Criminal Appeals,

45   adopting most of the findings and conclusions, denied Dowthitt

          1
             The evidence indicated that Dowthitt cut Gracie’s throat
     once before and once after the sexual assault. Gracie was still
     alive during the assault.
          2
             Delton pled guilty to the murder of Tiffany Purnhagen.
     Pursuant to a plea agreement, he was sentenced to 45 years and
     testified against his father at trial. In addition, the second
     murder charge for Gracie’s death was dropped.

                                         2
46   habeas relief.   See Ex Parte Dowthitt, No. 37,557 (Tex. Crim.

47   App. Sept. 16, 1998).   On April 19, 1999, the United States

48   Supreme Court denied Dowthitt’s petition for a writ of

49   certiorari.   See Dowthitt v. Texas, 119 S. Ct. 1466 (1999).

50        After obtaining appointment of counsel and a stay of

51   execution, Dowthitt filed his petition for habeas corpus relief

52   in federal district court on December 30, 1998.      In response to

53   Dowthitt’s amended petition on February 12, 1999, the State moved

54   for summary judgment.   The district court, on January 7, 2000,

55   held an evidentiary hearing on Dowthitt’s actual innocence claim.

56   On January 27, 2000, the district court filed a detailed and

57   careful Memorandum and Order and entered a final judgment,

58   denying Dowthitt habeas relief on all claims, dismissing his case

59   with prejudice, and denying Dowthitt’s request for a COA.      After

60   the district court denied his Rule 59(e) motion, Dowthitt timely

61   appealed to this court, requesting a COA and reversal of the

62   district court’s judgment denying habeas relief.



63                             II.   DISCUSSION

64        Because Dowthitt’s petition for federal habeas relief was

65   filed after April 24, 1997, this appeal is governed by the Anti-

66   Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

67   L. No. 104-132, 100 Stat. 1214.       See Molo v. Johnson, 207 F.3d

68   773, 775 (5th Cir. 2000) (“Petitioners whose convictions became



                                       3
69   final before the effective date of the AEDPA were given a grace

70   period of one year to file their federal habeas petitions,

71   rendering them timely if filed by April 24, 1997.”).     Under

72   AEDPA, a petitioner must first obtain a COA in order for an

73   appellate court to review a district court’s denial of habeas

74   relief.   See 28 U.S.C. § 2253(c)(1)(A).

75        28 U.S.C. § 2253(c)(2) mandates that a COA will not issue

76   unless the petitioner makes “a substantial showing of the denial

77   of a constitutional right.”   This standard “includes showing that

78   reasonable jurists could debate whether (or, for that matter,

79   agree that) the petition should have been resolved in a different

80   manner or that the issues presented were adequate to deserve

81   encouragement to proceed further.”     Slack v. McDaniel, 120 S. Ct.

82   1595, 1603-04 (2000) (internal quotations and citations omitted);

83   see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000).

84        The formulation of the COA test is dependent upon whether

85   the district court dismisses the petitioner’s claim on

86   constitutional or procedural grounds.    If the district court

87   rejects the constitutional claims on the merits, the petitioner

88   “must demonstrate that reasonable jurists would find the district

89   court’s assessment of the constitutional claims debatable or

90   wrong.”   Slack, 120 S. Ct. at 1604.    On the other hand,

91        [w]hen the district court denies a habeas petition on
92        procedural grounds without reaching the prisoner’s
93        underlying constitutional claim, a COA should issue
94        when the prisoner shows, at least, that jurists of
95        reason would find it debatable whether the petition

                                      4
96         states a valid claim of a denial of a constitutional
97         right and that jurists of reason would find it
98         debatable whether the district court was correct in its
99         procedural ruling.

100   Id. (emphasis added); see also Hernandez v. Johnson, 213 F.3d

101   243, 248 (5th Cir. 2000).

102        Furthermore, “the determination of whether a COA should

103   issue must be made by viewing the petitioner’s arguments through

104   the lens of the deferential scheme laid out in 28 U.S.C.

105   § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.

106   2000).   We give deference to a state court decision for “any

107   claim that was adjudicated on the merits in State court

108   proceedings” unless the decision was either “contrary to, or

109   involved an unreasonable application of, clearly established

110   Federal law, as determined by the Supreme Court of the United

111   States,” 28 U.S.C. § 2254(d)(1), or the decision “was based on an

112   unreasonable determination of the facts in light of the evidence

113   presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).

114        The “contrary to” requirement “refers to the holdings, as

115   opposed to the dicta, of . . . [the Supreme Court’s] decisions as

116   of the time of the relevant state-court decision.”    (Terry)

117   Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).    The inquiry

118   into whether the decision was based on an “unreasonable

119   determination of the facts” constrains a federal court in its

120   habeas review due to the deference it must accord the state

121   court.   See id.


                                       5
122         Under the “contrary to” clause, a federal habeas court
123         may grant the writ if the state court arrives at a
124         conclusion opposite to that reached by . . . [the
125         Supreme Court] on a question of law or if the state
126         court decides a case differently than . . . [the
127         Supreme Court] has on a set of materially
128         indistinguishable facts. Under the “unreasonable
129         application” clause, a federal habeas court may grant
130         the writ if the state court identifies the correct
131         governing legal principle from . . . [the Supreme
132         Court’s] decisions but unreasonably applies that
133         principle to the facts of the prisoner’s case.

134   Id.

135         Section 2254(d)(2) speaks to factual determinations made by

136   the state courts.   See 28 U.S.C. § 2254(e)(1).   While we presume

137   such determinations to be correct, the petitioner can rebut this

138   presumption by clear and convincing evidence.     See id.   Absent an

139   unreasonable determination in light of the record, we will give

140   deference to the state court’s fact findings.     See id.

141   § 2254(d)(2).

142         Dowthitt seeks a COA from this court on the following

143   issues3: (1) actual innocence, (2) ineffective assistance of

144   counsel, (3) admission of DNA evidence without a factual

145   predicate, (4) State misconduct, (5) failure to instruct the jury



            3
              Dowthitt states in his opening brief that he does not
      appeal all of the issues decided by the district court; he also
      states that he does not appeal all of the sub-issues within the
      issues he does appeal. As such, he preserves only the briefed
      issues for this appeal. See 28 U.S.C. § 2253(c)(3) (“certificate
      of appealability . . . shall indicate which specific issue or
      issues” are the basis for relief); see also Trevino v. Johnson,
      168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that issues not
      briefed on appeal are deemed waived).

                                       6
146   on lesser-included offenses, and (6) the district court’s limited

147   evidentiary hearing.



148                          A.   Actual Innocence

149        “Claims of actual innocence based on newly discovered

150   evidence have never been held to state a ground for federal

151   habeas relief absent an independent constitutional violation

152   occurring in the underlying state criminal proceeding.”     Herrera

153   v. Collins, 506 U.S. 390, 400 (1993).4    Rather, a claim of actual

154   innocence is “a gateway through which a habeas petitioner must

155   pass to have his otherwise barred constitutional claim considered

156   on the merits.”   Id. at 404.   In order for Dowthitt to obtain

157   relief on this claim, “the evidence must establish substantial

158   doubt about his guilt to justify the conclusion that his

159   execution would be a miscarriage of justice unless his conviction

160   was the product of a fair trial.”     Schlup v. Delo, 513 U.S. 298,

161   316 (1995) (emphasis added).

162        The Herrera Court did assume, arguendo, “that in a capital

163   case a truly persuasive demonstration of ‘actual innocence’ made

164   after trial would . . . warrant habeas relief if there were no

165   state avenue open to process such a claim.”    506 U.S. at 417.

166   However, this circuit has rejected this theory.     See Graham v.

           4
              “This rule is grounded in the principle that federal
      habeas courts sit to ensure that individuals are not imprisoned
      in violation of the Constitution — not to correct errors of
      fact.” Id.

                                        7
167   Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 120 S.

168   Ct. 1830 (2000).

169        Thus, Dowthitt must first raise substantial doubt about his

170   guilt, which would then cause us to examine any barred

171   constitutional claims.5   Dowthitt’s main argument in support of

172   his innocence is that his son Delton confessed to killing

173   Gracie.6   Dowthitt bases this claim on the following: a signed

174   declaration by his nephew Billy Sherman Dowthitt that Delton told

175   him that “Delton killed his girlfriend”; an unsigned affidavit of

176   David Tipps, a former prison inmate in Delton’s prison block,

177   stating that Delton claimed to have killed both girls; a signed

178   affidavit by Joseph Ward, a defense investigator, who states he

179   drew up the affidavit that Tipps later refused to sign out of

180   fear for himself; a signed affidavit of James Dowthitt,

181   Dowthitt’s brother, that his son Billy told him that Delton said

182   he had killed both girls; and Dowthitt’s own written proffer of

183   innocence.


           5
              See section II.C, infra, which discusses a procedurally
      barred claim.
           6
              In his reply brief, Dowthitt also simply lists other
      arguments in support of his actual innocence claim, such as
      Delton’s prior violent conduct and the lack of physical evidence.
      However, because he did not address these sub-issues in his
      opening brief, we will not consider them. See Pyles v. Johnson,
      136 F.3d 986, 996 n.9 (5th Cir. 1998) (“An appellant abandons all
      issues not raised and argued in his initial brief on appeal.”
      (internal quotations and citation omitted)); see also Trevino v.
      Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
      inadequately argued issues are considered waived).

                                       8
184        Not finding it necessary to conduct an evidentiary hearing,

185   the state habeas court rendered its decision based upon the

186   record.   The court found that Delton “did not recant his trial

187   testimony” that Dowthitt killed Gracie and that Billy “never

188   stated that Delton . . . said he killed both girls.”

189        The federal district court did, however, hold an evidentiary

190   hearing on Dowthitt’s actual innocence claim.    Delton again

191   testified in this evidentiary hearing that his father killed

192   Gracie and that he never told Billy otherwise.    The court held

193   Dowthitt’s other proffered statements inadmissible hearsay and

194   found that even if Billy’s statement were to be considered, they

195   failed to provide any convincing account of the events.

196   Determining, in addition, that the state findings were not

197   unreasonable, the district court held that Dowthitt’s claim of

198   actual innocence fell far short of the threshold set by the

199   Supreme Court in Herrera.

200        We conclude that Dowthitt has not raised “substantial doubt”

201   as to his guilt.   Dowthitt’s newly discovered evidence consists

202   solely of affidavits, and these affidavits are “particularly

203   suspect . . . because they consist of hearsay.”    Herrera, 506

204   U.S. at 417.   What Delton allegedly told others is hearsay and

205   does not fall under any exception to the hearsay rule. Cf. FED.

206   R. EVID. 804(b)(3) (statement against interest exception requires

207   that the declarant be unavailable, and in this case, Delton, far

208   from being unavailable, testified at trial and at the district

                                       9
209   court’s evidentiary hearing).    Not only do Dowthitt’s proffers

210   consist of hearsay (some with multiple levels), one is also

211   unsigned.   As such, this evidence is not nearly strong enough to

212   raise a substantial doubt about Dowthitt’s guilt.     Cf. Schlup,

213   513 U.S. at 331 (finding that the “sworn testimony of several

214   eyewitnesses that . . . [the petitioner] was not involved in the

215   crime” raised a sufficient issue that required an evidentiary

216   hearing).

217        In addition, even if we were to consider Billy’s hearsay

218   affidavit, we agree with the State that it does not possess

219   sufficient “indicia of reliability” due to its inconsistency with

220   the physical evidence.    The physical evidence established that

221   Gracie (who was considered Delton’s girlfriend) died from knife

222   wounds to her throat after being sexually assaulted, while her

223   younger sister Tiffany was strangled.    Billy, however, states

224   that Delton said he strangled his girlfriend, while Dowthitt

225   sexually assaulted and stabbed the “little girl.”    As this does

226   not comport with the physical evidence, Billy’s statements do not

227   provide us with a convincing account of the events.

228        Furthermore, what Dowthitt puts forth is actually not “newly

229   discovered” evidence.    He presented the substance of the

230   affidavits at his trial.    In particular, as the state habeas

231   court found, “Delton’s first confession, in which he stated that

232   he killed both girls, was admitted in evidence.”    Delton was

233   cross-examined as to his plea agreement and his prior

                                       10
234   inconsistent confession.7     Thus, the jury had the opportunity to

235   take into account both versions of the murders and determine

236   which was more credible.     The jury, with the ability to listen to

237   live testimony, was in a better position to judge the credibility

238   of the witnesses and the accounts of the events; absent a lack of

239   support in the record, we will not second guess their

240   determination.     See United States v. Ramos-Garcia, 184 F.3d 463,

241   466 (5th Cir. 1999) (stating that the jury evidently did not

242   believe the alternative explanation of the events and that the

243   court would “‘not second guess the jury in its choice’”); United

244   States v. Kaufman, 858 F.2d 994, 1004 (5th Cir. 1988) (finding

245   that it was a “serious mistake . . . to second-guess judgments

246   that . . . [were made] firsthand”).

247        We find that Dowthitt’s proffered evidence establishing his

248   actual innocence fails to raise a substantial doubt as to his

249   guilt.



250                    B.   Ineffective Assistance of Counsel

251        Dowthitt must make a substantial showing of a denial of his

252   Sixth Amendment right to counsel to obtain a COA.     His

253   ineffective assistance of counsel claim meets the threshold


           7
              During the State’s rehabilitation of Delton’s testimony,
      Delton’s attorney testified as to a prior consistent statement:
      that, prior to the plea agreement, Delton had told him that his
      father killed Gracie. The state court, on direct appeal, found
      that the admission of the attorney’s testimony was not erroneous.

                                         11
254   question under AEDPA, § 2254(d)(1), that the rule of law be

255   clearly established at the time of the state court conviction in

256   1992.   This is so because the merits of an ineffective assistance

257   of counsel claim are governed by the well-established rule of

258   Strickland v. Washington, 466 U.S. 668 (1984).     Dowthitt must

259   establish both prongs of the Strickland test in order to prevail.

260   First, he “must show that counsel’s performance was deficient.”

261   Id. at 687.    Second, he “must show that the deficient performance

262   prejudiced . . . [his] defense.”       Id.

263         Deficient performance is established by showing “that

264   counsel’s representation fell below an objective standard of

265   reasonableness.”     Id. at 688; Hernandez v. Johnson, 213 F.3d 243,

266   249 (5th Cir. 2000).    Moreover, as the Supreme Court has

267   counseled, a “fair assessment of attorney performance requires

268   that every effort be made to eliminate the distorting effects of

269   hindsight . . . and to evaluate the conduct from counsel’s

270   perspective at the time.”     Strickland, 466 U.S. at 689.   Thus,

271   our scrutiny of counsel’s performance is highly deferential.         See

272   id.   We must be particularly wary of “argument[s] [that]

273   essentially come[] down to a matter of degrees.    Did counsel

274   investigate enough?    Did counsel present enough mitigating

275   evidence?     Those questions are even less susceptible to judicial

276   second-guessing.”     Kitchens v. Johnson, 190 F.3d 698, 703 (5th

277   Cir. 1999).



                                        12
278        Prejudice ensues when “there is a reasonable probability

279   that, but for the counsel’s unprofessional errors, the result of

280   the proceedings would have been different.”    Clark v. Johnson,

281   --- F.3d ----, 2000 WL 1285270, *7 (5th Cir. 2000) (internal

282   quotations omitted) (quoting Strickland, 466 U.S. at 694).     “A

283   reasonable probability is a probability sufficient to undermine

284   confidence in the outcome.”    Strickland, 466 U.S. at 694.

285        In his ineffective assistance of counsel claim, Dowthitt

286   raises several sub-issues concerning his mitigation defense,

287   investigation, and closing arguments.   We will examine each of

288   his claims in turn.

289               1. Failure to Present a Mitigation Defense
290                         Based on Mental Illness

291        Dowthitt argues that trial counsel failed to present a

292   mitigation defense based on mental illness.   In support of this

293   argument, Dowthitt points to several aspects of his life and

294   trial.   He states that his habeas counsel located records

295   indicating he suffered from mental illness that were not

296   discovered by trial counsel.   A 1964 re-admission form from

297   Austin State Hospital shows that a young Dowthitt was diagnosed

298   as having a “schizophrenic reaction” of a “chronic paranoid type”

299   and was committed temporarily.   The admission history also states

300   that when Dowthitt was hospitalized due to an automobile accident

301   in August 1962, a test “showed slight brain damage.”     In

302   addition, Dowthitt points to Sergeant Walter Blakeslee’s


                                       13
303   statement of July 14, 1964 recommending that Dowthitt be

304   discharged from the Air Force.    Blakeslee stated “it was evident

305   to . . . [him] that Airman Dowthitt was suffering from some

306   mental deficiency.”

307        Dowthitt also relies heavily on declarations from Dr. Paula

308   Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired

309   by habeas counsel.    Lundberg-Love stated that her “clinical

310   impression was that . . . [Dowthitt] was not sadistic or

311   sociopathic.”   She further wrote that Dowthitt’s “profile was

312   consistent with paranoid and schizophrenic features” and that he

313   suffers from depression.    Sultan stated in her affidavit that the

314   interrogation videotapes showed Dowthitt’s “severe mental

315   problems” and that the trial mental health expert’s “examination

316   was cursory.”   She also wrote that Dowthitt “functions quite

317   peacefully and successfully within the prison environment,”

318   rebutting the predictions made at trial about his potential for

319   future dangerousness.

320        Dowthitt argues that trial counsel’s affidavits provide

321   further support for their deficient performance with regard to

322   his mitigation defense.    He states that, by their own words,

323   trial counsel did not investigate mental health defenses because

324   they “had no knowledge that Defendant suffered brain damage,” and

325   “he appeared sane and competent at all times.”    Dowthitt further

326   quotes trial counsel’s affidavit: “During our many interviews

327   Defendant never appeared to be suffering from any mental problems

                                       14
328   other than being upset and unhappy about his circumstances.”

329   Dowthitt asserts that such impressions on the part of trial

330   counsel were not reasonable because he was on anti-depressants

331   during that time, because his video-taped interrogation exposes

332   his unstable state of mind, and because the Lundberg-Love and

333   Sultan declarations confirm his mental illness.

334        Citing to Goss v. State, the State responds that Texas

335   caselaw has discounted mitigation evidence not relevant to the

336   crime or future dangerousness. 826 S.W.2d 162, 165 (Tex. Crim

337   App. 1992), cert. denied, 509 U.S. 922 (1993).    The State further

338   argues that, even in the face of Dowthitt’s repeated denials of

339   any mental problems, trial counsel retained a psychiatrist to

340   examine Dowthitt.   The State also points out that Dowthitt

341   received funds for neuropsychological expert assistance during

342   the state habeas corpus proceedings, but that no evidence from

343   that expert’s testing has ever been presented.

344        As for the reports of Lundberg-Love and Sultan, the State

345   asserts that they are precluded from consideration because they

346   were not presented to the state courts.    Further, the State

347   claims that Dowthitt has not established cause and prejudice for

348   his failure to develop this evidence below.    Finally, citing to

349   the district court’s findings, the State argues that even if the

350   reports were considered, they are insufficient because Lundberg-

351   Love and Sultan appeared to have formed their impressions from

352   speaking with Dowthitt’s habeas counsel.

                                      15
353        In reply, Dowthitt argues that under the Supreme Court’s

354   decision in (Terry) Williams v. Taylor, the “nexus” requirement

355   for mitigation evidence is erroneous.     He further states that

356   although the State continuously refers to “brain damage,” he is

357   contesting trial counsel’s failure with regard to “mental

358   illness.”   And, Dowthitt asserts that the Lundberg-Love and

359   Sultan reports are not barred from consideration because he has

360   established “cause” via the denial of funding to obtain experts

361   by the state habeas courts.

362        As for Dowthitt’s brain damage claim, the state habeas court

363   found that Dowthitt was competent to stand trial, that no

364   neuropsychological expert had found that Dowthitt suffered from

365   brain damage, and that Dowthitt exhibited no signs of brain

366   damage.   These findings8 are not unreasonable in light of the

367   record, and Dowthitt has not presented clear and convincing

368   evidence rebutting their presumption of correctness.    Moreover,

369   Dowthitt concedes these findings in his reply brief by abandoning

370   his initial reliance, in part, on brain damage.    He states that

371   “mental illness . . . is the mitigation evidence upon which . . .

372   [he] bases his ineffectiveness claims.”

373        As for the evidence indicating “mental illness” (the Austin

374   State Hospital and the Air Force records), we are bound by the


           8
              The state habeas court also found trial counsel’s
      affidavits, explaining that Dowthitt did not appear to be
      suffering from mental problems, to be credible.

                                      16
375   state habeas court’s findings that these records included

376   “information which could have hurt . . . [Dowthitt’s] case.”9

377   Such information included, among other data, the following: that

378   Dowthitt attempted to rape his eight-year old niece, that he had

379   allegedly molested the same girl when she was five, that he had

380   an immature personality (as opposed to psychotic tendencies), and

381   that he “showed a temper and insisted on having his own way.”     In

382   light of these details, the state habeas court’s findings are

383   clearly supported by the record.    See 28 U.S.C. § 2254(d)(2).

384        Thus, even assuming arguendo that trial counsel were

385   deficient in failing to discover these medical records,10

386   Dowthitt was not prejudiced in his defense.    See Buxton v.

387   Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989) (“Strickland allows

388   the habeas court to look at either prong first; if either one is

389   found dispositive, it is not necessary to address the other.”).

390   There is no “reasonable probability” that the outcome would have

391   been different because the evidence was double edged in nature.


           9
              The state habeas court also found that Dowthitt was not
      medicated during trial with any anti-depressant or other mind-
      altering medication.
           10
              We note that Dowthitt steadfastly denied to his trial
      counsel that he had any mental problems. See Strickland, 466
      U.S. at 691 (“The reasonableness of counsel’s actions may be
      determined or substantially influenced by the defendant’s own
      statements or actions.”). Still, trial counsel did retain a
      psychiatrist, Dr. Fred Fason, to examine Dowthitt; the Sixth
      Amendment does not require counsel to continue searching until
      they find an expert willing to provide more beneficial testimony
      on their behalf.

                                     17
392   As such, trial counsel’s actions in not discovering and

393   presenting the records to the jury to bring out indications of

394   mental illness do not create a “probability sufficient to

395   undermine confidence in the outcome.”     Strickland, 466 U.S. at

396   694.

397          The state habeas court did not make additional findings

398   dealing with Dowthitt’s asserted mental illness because Dowthitt

399   did not present any other evidence to that court.    The Lundberg-

400   Love and Sultan affidavits were introduced for the first time to

401   the district court on federal habeas review.    Thus, we must

402   initially answer the threshold question of whether we are

403   precluded from considering these affidavits.    Although both the

404   State and Dowthitt argue this issue as one of “factual

405   development” under § 2254(d) and (e),11 it is more accurately

406   analyzed under the “exhaustion” rubric of § 2254(b).12

407          “We have held that a habeas petitioner fails to exhaust

408   state remedies when he presents material additional evidentiary

409   support to the federal court that was not presented to the state

410   court.”     Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)


             11
              Section 2254(e) deals with when a petitioner is entitled
      to an evidentiary hearing in federal district court even though
      he has failed to develop the factual bases of his claims in state
      habeas proceedings.
             12
              Section 2254(b)(1)(A) states, in part, that “a writ of
      habeas corpus . . . shall not be granted unless it appears that
      the Applicant has exhausted the remedies available in the courts
      of the State.”

                                        18
411   (emphasis added); see also Young v. Lynaugh, 821 F.2d 1133, 1139

412   (5th Cir. 1987), abrogation on other grounds recognized by

413   Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Brown v.

414   Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983).   Furthermore, “we

415   are unwilling to . . . accommodate new factual allegations in

416   support of a previously asserted legal theory, even though these

417   factual allegations came into existence after the state habeas

418   relief had been denied.”    Joyner v. King, 786 F.2d 1317, 1320

419   (5th Cir. 1986) (emphasis added).

420        Thus, we must first determine whether this claim is before

421   us “in a significantly different and stronger evidentiary posture

422   than it was before the state courts.”    Joyner, 786 F.2d at 1320.

423   We find that Dowthitt does not allege “new facts” via the

424   affidavits of the two experts because “all crucial factual

425   allegations were before the state courts at the time they ruled

426   on the merits” of Dowthitt’s habeas petition.    See Young, 821

427   F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion

428   in the case because petitioner did present significant new facts

429   in his federal petition).   Dowthitt had presented to the state

430   habeas court his assertions of mental illness of the

431   schizophrenic, paranoid type.   The Lundberg-Love and Sultan

432   affidavits add little to those claims.

433        While we find that consideration of these affidavits is not

434   precluded, we do not find them to demonstrate a substantial

435   showing of the denial of the Sixth Amendment right to counsel.

                                       19
436   Even if trial counsel had obtained this information, Dowthitt

437   fails to demonstrate that such information would have altered the

438   jury’s judgment.   Sultan’s affidavit is based on her review of a

439   portion of the paper record, and she did not personally interview

440   Dowthitt.   We also agree with the district court’s assessment

441   that “much of Dr. Sultan’s initial declaration is based on her

442   discussions with habeas counsel rather than on independent

443   analysis” because her statements put forth information that she

444   could not have known otherwise.13

445        Lundberg-Love’s affidavit also presents similar problems.

446   She stated that she could have testified to Dowthitt’s mental

447   trauma “that he was experiencing as a result of witnessing Delton

448   sexually assault Gracie after he had cut her throat and killed

449   her sister prior to . . . [Dowthitt’s] arrival back at the murder

450   scene.”14   As the jury had decided not to believe Dowthitt’s

451   claims, this version of the murders would not be credited during

452   sentencing.   Therefore, even assuming arguendo that trial

453   counsel’s performance was deficient,15 Dowthitt fails to make a

           13
              For example, Sultan states that Dowthitt “spent much of
      the interrogation hooked up to a polygraph machine, looking
      terrified and confused.” However, she does not list the
      interrogation videotapes among the materials that she reviewed.
           14
              Lundberg-Love also noted that she would have testified
      regarding the consequences of his mental illness.
           15
              We pause briefly to address the parties’ arguments
      regarding the “nexus” requirement for a mitigation defense.     So
      far as the State is asserting that mitigating evidence “not
      connected to the crime or future dangerousness” cannot be

                                       20
454   substantial showing of prejudice on this Strickland claim as he

455   does not demonstrate a sufficient probability that the alleged

456   errors of trial counsel undermined confidence in the outcome.

457   See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir.), cert.

458   denied, 527 U.S. 1055 (1999) (“The potential negative impact of

459   the retardation evidence, in addition to the cold-blooded nature

460   of the murder and . . . [defendant’s] other violent conduct,

461   persuades us that the outcome of the sentencing would not have

462   been different if counsel would have investigated further.”).

463            2. Failure to Competently Prepare and Use Dr. Fason

464        Dowthitt next asserts constitutional error with regard to

465   trial counsel’s inadequate development of Dr. Fred Fason’s

466   testimony.    Counsel retained Dr. Fason, a psychiatrist, to

467   examine Dowthitt on several issues regarding Dowthitt’s mental

468   state.    Dowthitt argues that trial counsel did not competently

469   prepare Dr. Fason and did not call Dr. Fason as a witness during

470   trial.




      considered, it is not consistent with the Supreme Court’s most
      recent statement on this issue: “Mitigating evidence unrelated
      to dangerousness may alter the jury’s selection of penalty, even
      if it does not undermine or rebut the prosecution’s death-
      eligibility case.” (Terry) Williams v. Taylor, 120 S. Ct. 1495,
      1516 (2000). While the jury can take into account the “totality
      of available mitigation evidence,” id. at 1515, “a tactical
      decision not to present character evidence during the penalty
      phase of a capital murder trial because it would open the door
      for incidents of prior misconduct . . . [is] not unsound.”
      Barrientes, 221 F.3d at 774.

                                       21
471        The state habeas court noted the integrity of trial counsel

472   and found their affidavits to be credible.     In their affidavits,

473   trial counsel stated that Dr. Fason had a “lengthy interview”

474   with Dowthitt and “spent many hours reviewing various tapes and

475   discussing this case” with counsel.     Dowthitt, in turn, points to

476   Dr. Fason’s May 13, 1992 notes and states that they “indicate a

477   very short jailhouse interview.”     He further asserts that he

478   “remembers” the interview being “exceedingly short.”     Dowthitt

479   does not explain how the notes “indicate” the length of the

480   interview.   Dowthitt’s personal beliefs, although they may be

481   genuine, do not present clear and convincing evidence that would

482   rebut the state court’s findings.16

483        Dowthitt also asserts that trial counsel did not request Dr.

484   Fason to conduct an evaluation for mitigation purposes.     The

485   State responds, however, that a letter in trial counsel’s files

486   reveals that just such an evaluation was requested.     Dowthitt has

487   failed to raise a substantial issue that trial counsel was not

488   reasonable in pursuing a mitigation defense.

489        In addition, Dowthitt contests trial counsel’s decision not

490   to call Dr. Fason to testify on Dowthitt’s behalf at trial.       He


           16
              Dowthitt also refers to jailhouse records that would
      indicate the time spent in the particular interview. He contends
      that the State has not released them. However, he does not
      develop this argument further and, as such, has not adequately
      briefed this issue for our consideration. See Trevino v.
      Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999) (stating that
      inadequately argued issues are considered waived).

                                      22
491   claims that Dr. Fason’s report would have demonstrated that he

492   was not dangerous.   This assertion fails to meet the deficient

493   performance prong of Strickland.      Although Dr. Fason’s report

494   contains some information relating to mitigating factors,

495   statements detrimental to Dowthitt are also included that clearly

496   indicate his unwillingness to testify in Dowthitt’s favor.     Thus,

497   trial counsel’s decision not to put a witness on the stand who

498   himself is not entirely favorable toward Dowthitt, and

499   furthermore, who would have to respond with more damaging

500   information during the State’s cross-examination, is not

501   objectively unreasonable.17   Trial counsel also elicited

502   favorable information during cross-examination of the State’s

503   expert witness, Dr. Walter Quijano.18     This further supports the

504   conclusion that the trial counsel’s decision not to put Dr. Fason

505   on the stand was a matter of trial strategy.      See Strickland, 466

506   U.S. at 699.

           17
              In addition, trial counsel’s affidavit, found credible
      by the state habeas court, states that Dr. Fason reported to them
      personally that he believed that Dowthitt was a very dangerous
      individual.
           18
              Dowthitt vehemently contests the beneficial impact of
      Quijano’s testimony on cross-examination. However, given the
      damage that could have been caused by Dr. Fason’s testimony and
      that some of Dr. Quijano’s statements could have been considered
      in Dowthitt’s favor by the jury, trial counsel’s decision was the
      result of strategic considerations, one which will not be second-
      guessed on federal habeas appeal.
           In addition, Dowthitt notes that another capital case has
      recently been reversed due to Dr. Quijano’s improper testimony.
      However, that does not automatically mandate a finding of error
      in this case.

                                       23
507        Dowthitt also argues that trial counsel should have found

508   another expert who would be willing to testify to Dowthitt’s lack

509   of future dangerousness based on his mental condition.    As the

510   district court noted, even in the face of Dowthitt’s steadfast

511   denial of any mental problems, trial counsel, “in an abundance of

512   caution,” retained a psychiatrist.   Thus, the state habeas court

513   finding that trial counsel were “relentless” in their pursuit of

514   Dowthitt’s defense is not unreasonable.     We also find that

515   “[t]rial counsel performed appropriately, recognizing the

516   possible issues regarding . . . [the defendant’s] mental

517   capacity, recognizing the need for expert assistance in exploring

518   these issues,” and employing a defense expert.     White v. Johnson,

519   153 F.3d 197, 207 (5th Cir. 1998) (emphasis added).    Under the

520   circumstances, trial counsel was not deficient by not canvassing

521   the field to find a more favorable defense expert.

522        Dowthitt has failed to make a substantial showing on this

523   ineffective assistance counsel claim.   We find that reasonable

524   jurists would not debate the propriety of granting a COA on this

525   issue.

526     3. Failure to Present Dowthitt’s Mercy-Evoking Background as
527                   Mitigation Through Family Members

528        Dowthitt claims that trial counsel committed constitutional

529   error by not presenting mitigation evidence via family members

530   during the punishment phase of the trial.    He argues that the

531   following family members’ affidavits demonstrate that they would


                                     24
532   have testified to Dowthitt’s abusive upbringing, his mental

533   difficulties, and his loving relationship with some of his

534   children: Darlene Glover, Dowthitt’s sister; Stacey Dowthitt,

535   Dowthitt’s step-son; and Danna Taft, Dowthitt’s wife.

536        As an initial matter, the State argues that consideration of

537   these affidavits is barred on federal habeas appeal because they

538   were not presented to the state courts.     The State bases this

539   argument on § 2254(d) and (e).     As we explained in section

540   II.B.1, this issue is more appropriately analyzed under the

541   § 2254(b) exhaustion framework.     Thus, if the case is in a

542   significantly stronger evidentiary framework before the federal

543   habeas court than it was before the state habeas court, the

544   exhaustion requirement has not been satisfied.     See section

545   II.B.1, supra.     Dowthitt replies that the substance of these

546   affidavits was presented to the state courts through the

547   affidavits of the state habeas investigator detailing his

548   interviews with these family members.     We agree with Dowthitt

549   that no “new facts” are presented to us and that the state habeas

550   court had the critical facts before it.     See Young, 821 F.2d at

551   1139.     Thus, the exhaustion requirement of § 2254(b) has been

552   satisfied.19

           19
              We note that the state habeas court found that Dowthitt
      failed to obtain affidavits of his family members and did not
      show that they could not be obtained without court order. We
      agree with the district court’s assessment that Dowthitt was not
      justified in not presenting those affidavits to the state habeas
      court. However, this impacts the need for a federal evidentiary

                                        25
553        The state habeas court found that Dowthitt “did not want any

554   of his family testifying on his behalf.”   Counsel will not be

555   deemed ineffective for following their client’s wishes, so long

556   as the client made an informed decision.     See Autry v. McKaskle,

557   727 F.2d 358, 361 (5th Cir. 1984) (“By no measure can . . . [the

558   defendant] block his lawyer’s efforts and later claim the

559   resulting performance was constitutionally deficient.”).

560   Dowthitt contests the state habeas court’s finding by arguing

561   that he did not understand the import of mitigating evidence (and

562   trial counsel did not even discuss it with him).    We agree with

563   the district court that Dowthitt’s personal belief (in a proffer

564   submitted at the January 7, 2000 hearing) does not present clear

565   and convincing evidence to rebut the state court’s finding.20

566        In addition, trial counsel, in an affidavit found to be

567   credible by the state habeas court, stated that they “attempted

568   to talk to anyone” who would cooperate21 and that many potential

569   witnesses did not want to become involved.    Thus, trial counsel

570   attempted to delve into Dowthitt’s background, but were hindered

571   by external forces.   Unlike trial counsel in (Terry) Williams v.



      hearing under § 2254(e) and is not relevant to the exhaustion
      determination under § 2254(b). See, infra, section II.F.
           20
              We also note that in their affidavit, found credible by
      the state habeas court, trial counsel stated they “discussed the
      case in detail” with Dowthitt.
           21
              The state habeas court found that they did speak with
      Stacey Dowthitt.

                                      26
572   Taylor, 120 S. Ct. 1495 (2000), counsel’s actions here would be

573   characterized as reasonable trial strategy because they attempted

574   to investigate Dowthitt’s background and were thwarted by

575   uncooperative potential witnesses.

576        Trial counsel further stated in their affidavit that some

577   people who did speak with them had knowledge of factors

578   detrimental to Dowthitt.   We have held that the “failure to

579   present . . . evidence would not constitute ‘deficient’

580   performance within the meaning of Strickland if . . . [counsel]

581   could have concluded, for tactical reasons, that attempting to

582   present such evidence would be unwise.”   Williams v. Cain, 125

583   F.3d 269, 278 (5th Cir. 1997); cf. (Terry) Williams, 120 S. Ct.

584   at 1497-98 (finding that counsel’s tactical decision to focus on

585   defendant’s voluntary confession, without undertaking any sort of

586   investigation into defendant’s background, was not justifiable

587   trial strategy).

588        Thus, Dowthitt has not made a substantial showing that the

589   actions of his trial counsel were objectively unreasonable.    As

590   he fails to demonstrate sufficient evidence to meet the deficient

591   performance prong of the Strickland test, he has not shown that

592   the issue is debatable among reasonable jurists.   We therefore

593   deny Dowthitt’s request for a COA based on this ineffective

594   assistance of counsel claim.

595   4.   Failure to Investigate for the Guilt/Innocence Phase and the
596                            Punishment Phase


                                      27
597        Dowthitt argues that trial counsel did not adequately

598   conduct their own investigation.     In this regard, he makes the

599   following contentions: trial counsel did not interview any

600   significant State witnesses, “deferring” instead to the State’s

601   version of the events without performing independent analysis;

602   they did not discover that Darla Dowthitt’s own trial had been

603   repeatedly reset and did not inform the jury about her pending

604   felony case for indecency with a child; they failed to adequately

605   impeach Delton by not presenting his prior misconduct; and they

606   did not follow through on their own DNA testing.

607        The state habeas court found that, based on the credible

608   affidavits of trial counsel, “trial counsel extensively reviewed

609   the State’s file and evidence collected in this case.”      Trial

610   counsel also stated in their affidavit that they hired DNA,22

611   fingerprinting,23 and psychiatric experts.    The record

612   illustrates that these experts made findings in line with the

613   State’s evidence.   We find that trial counsel did not blindly bow

614   to the State’s evidence and attempted to dispute it.       That they


           22
              The State also asserts that Dowthitt has failed to
      present any exculpatory DNA evidence, despite court funding for
      further testing. Dowthitt responds that there was no residue
      left upon which to conduct such testing, “even at trial.” We
      question how Dowthitt can make this statement and yet fault trial
      counsel for allegedly not having their own DNA tests performed.
           23
              The state habeas court also found specifically that
      counsel hired a qualified fingerprint expert, who confirmed the
      State’s findings.

                                      28
615   were not successful in their attempts does not render their

616   performance deficient.

617        The state habeas court also found that “trial counsel

618   investigated Delton’s background.”   This finding is reasonable in

619   light of the record.   Trial counsel knew about Delton’s prior

620   misconduct and actually attempted to admit evidence of this

621   during trial.   The trial court, however, excluded them (after a

622   hearing on the issue) as violating Texas Rule of Criminal

623   Evidence 609(b).   Dowthitt’s only response to this is that the

624   Texas rules of evidence should be found offensive to the

625   Constitution because they unfairly and arbitrarily prejudiced his

626   defense.

627        However, the very case that Dowthitt cites for support

628   recognizes that the fundamental fairness concept works to

629   discredit evidentiary rules in very limited circumstances.     See

630   Fuller v. State, 829 S.W.2d 191, 207-08 (Tex. Crim. App. 1992).

631   The Fuller court emphasized that the Constitution does not easily

632   undo the rules of evidence:

633        Every rule of evidence works a hardship on some
634        litigants part of the time, and it is easy to
635        sympathize with the frustration of any party whose most
636        promising strategy turns out to be objectionable under
637        the law. But we are not at liberty to relieve every
638        such disappointment with an ad hoc suspension of the
639        Rules.

640   Id. at 207.   The Fuller court noted that “the report Appellant

641   sought to introduce in this case is precisely the sort of thing

642   which the hearsay rule, in spite of its many exceptions, is still

                                      29
643   specifically designed to exclude.”     Id. at 208.   Similarly, in

644   this case, Dowthitt sought to introduce evidence that went to the

645   heart of the rules of evidence against using prior misconduct to

646   show conformity with the alleged conduct.24    This is not the sort

647   of instance that demands the use of the Constitution to disregard

648   fundamental evidentiary rules.

649        We also find that trial counsel’s performance was not

650   deficient with regard to discovering Darla Dowthitt’s felony

651   indictment for indecency with a child.    Trial counsel requested

652   and received a discovery order for the criminal record of all

653   State witnesses.    Dowthitt falls far short of demonstrating

654   deficient performance in this regard.

655        Dowthitt has not made a substantial showing of ineffective

656   assistance of counsel due to inadequate investigation.     As such,

657   he is not entitled to a COA on this claim.

658       5.     Inadequate Closing Arguments at the Guilt/Innocence
659                         Phase and the Penalty Phase

660        Dowthitt argues that trial counsel’s closing arguments were

661   inadequate because they undermined their own case by

662   misrepresenting facts and making unjustifiable concessions.      He

663   focuses primarily on counsel’s comments regarding the DNA

664   results.    Trial counsel stated in closing argument, in relevant

665   part:


           24
              We note that the State points out that trial counsel did
      elicit some evidence of past misconduct from Quijano and Delton.

                                        30
666        The blood, all right. There’s been testimony there’s
667        some blood on the bottle . . . . We get down here to
668        Picture 75 and 76 and we get a spot on the bottom that
669        we know was blood because they scraped that spot off
670        and they sent it in and the DNA people said 95 probably
671        Gracie’s blood. But that’s on the bottom and that’s a
672        little tiny bit and does that mean that the bottle sat
673        down in or rolled around or came near or got on a piece
674        of bloody clothing or in some other matter connected
675        with the blood? We assume that 95 percent is close
676        enough that it is Gracie’s blood. It doesn’t tell us
677        how it got there.

678   State Trial Transcript, Vol. XXXIV at 1270-71 (emphasis added).

679   Dowthitt contends it was a plain misstatement to convey that

680   there was a ninety-five percent probability the blood was

681   Gracie’s because the DNA test merely revealed that ninety-five

682   percent of the population was excluded, with Gracie being among

683   the five percent possible contributors of the blood.25   Dowthitt

684   further points to his expert’s testimony on habeas that if the

685   jury had been informed of the significant number of people who

686   share that genetic profile, the jury would have more accurately

687   assessed the evidence.

688        The state habeas court found that “trial counsel were

689   zealous advocates for . . . [Dowthitt’s] defense during closing

690   argument.”   Dowthitt falls far short of producing clear and

691   convincing evidence to rebut the presumption of correctness we

692   afford this finding under AEDPA.     While counsel’s

693   characterization of the test results were not entirely on point,

           25
              The DNA testing also revealed that Dowthitt and Delton
      were part of the ninety-five percent excluded as possible
      contributors.

                                      31
694   the closing arguments as a whole were thorough and effective.

695   The record demonstrates that trial counsel drove home the point

696   that the DNA evidence did not tie Dowthitt to the crime — that

697   the blood could have gotten on the bottle in any number of other

698   ways.     We find without reservation that trial counsel’s

699   performance was sufficient in this regard.

700        Dowhtitt also argues that trial counsel was deficient during

701   the closing arguments for the penalty phase.      Dowthitt faults

702   trial counsel for statements that Dowthitt suffered from a

703   “disease” that resulted in his acting in a “frenzy, like the

704   feeding of a shark or something.”      Dowthitt also asserts that

705   trial counsel “‘argued’ against Mr. Dowthitt being a future

706   danger by positing that his only victims in prison would be

707   ‘effeminate men.’”

708        Dowthitt cannot manufacture deficient performance by

709   selectively extracting phrases from trial counsel’s closing

710   argument and mischaracterizing them.      While we would not endorse

711   every aspect of trial counsel’s statements, nevertheless, taken

712   in full context, those statements for the most part were

713   beneficial because they went toward demonstrating that Dowthitt’s

714   actions were not deliberate26 and that he did not present a

           26
              Pursuant to Section 37.071(b) of the Texas Code of
      Criminal Procedure, the jury had to answer two special issues
      during the punishment phase. Special Issue No. 1 dealt with
      deliberateness: “[w]hether the conduct of the defendant that
      caused the death of the deceased was committed deliberately and
      with reasonable expectation that the death of the deceased or

                                        32
715   continuing danger.27    Furthermore, we note we have held that

716   counsel’s acknowledgment of aspects of the case can be a proper

717   “effort to bolster credibility with the jury.”      Kitchens v.

718   Johnson, 190 F.3d 698, 704 (5th Cir. 1999).     We will not second

719   guess such strategic decisions under the teaching of Strickland.

720        Dowthitt’s assertions regarding trial counsel’s closing

721   arguments fail to demonstrate substantial doubt on his Sixth

722   Amendment right.   As such, he is not entitled to a COA on this

723   ineffective assistance of counsel claim.

724        In sum, the state habeas court found “trial counsel were

725   relentless in the defense of their client in the face of a very

726   bad set of facts.”     In addition, the court found that Dowthitt

727   failed “to show that the outcome of his trial would have been

728   different but for the alleged instances of ineffective assistance

729   of counsel.”   Dowthitt has not presented clear and convincing

730   evidence to rebut the presumption of correctness we afford to

731   state court findings under AEDPA.      Furthermore, our review also

732   reveals that the state court was not unreasonable in its finding

733   in light of the record.     We therefore find that Dowthitt has not

734   demonstrated a substantial showing of the denial of his




      another would result.”
           27
              Special Issue No. 2 dealt with future dangerousness:
      “[w]hether there is a probability that the defendant would commit
      criminal acts of violence that would constitute a continuing
      threat to society.”

                                        33
735   constitutional right to counsel, and we deny his application for

736   a COA on this claim.



737       C.    Admission of DNA Evidence Without a Factual Predicate

738        Dowthitt argues that he was denied due process of law under

739   the Fourteenth Amendment when DNA evidence28 was admitted at

740   trial without a proper factual predicate.    Pointing to the lack

741   of a prior hearing to determine the admissibility of the DNA

742   evidence, Dowthitt asserts that his constitutional rights were

743   violated.    The state habeas court found that Dowthitt “failed to

744   object to the trial court’s failure to hold a hearing on the

745   reliability of the DNA evidence and waived any error.”

746        In all cases in which a state prisoner has defaulted
747        his federal claims in state court pursuant to an
748        independent and adequate state procedural rule, federal
749        habeas review of the claims is barred unless the
750        prisoner can demonstrate cause for the default and
751        actual prejudice as a result of the alleged violation
752        of federal law, or demonstrate that failure to consider
753        the claims will result in a fundamental miscarriage of
754        justice.

755   Coleman v. Thompson, 501 U.S. 722, 750 (1991).    The state

756   procedural rule at issue in this instance is adequate because it


           28
              During the trial’s guilt/innocence phase, the State
      presented expert testimony regarding DNA testing performed on
      “blood scrapings” taken from a beer bottle discovered in
      Dowthitt’s auto shop. The expert testified that DQ alpha typing
      was done on the sample due to its small size. The State’s
      evidence indicated that although “typing” was far less
      determinative than DNA “fingerprinting,” it permitted a
      conclusion that Gracie was within the five percent of the
      population not excluded as contributors of the blood.

                                       34
757   has been “strictly or regularly followed.”      Amos v. Scott, 61

758   F.3d 333, 339 (5th Cir. 1995).   “This Circuit has held that the

759   Texas contemporaneous objection rule is strictly or regularly

760   applied evenhandedly to the vast majority of similar claims, and

761   is therefore an adequate procedural bar.”      Corwin v. Johnson, 150

762   F.3d 467, 473 (5th Cir. 1998).

763        As for the cause-and-prejudice exception, cause is

764   demonstrated by establishing that some objective external factor

765   “‘impeded counsel’s efforts to comply with the State’s procedural

766   rule.’”    Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1999)

767   (quoting Coleman).    Dowthitt maintains that cause existed for his

768   default.   The failure to object he contends, is the result of

769   trial counsel’s ineffectiveness.      “[C]ounsel’s ineffectiveness

770   will constitute cause only if it is an independent constitutional

771   violation.”    Coleman, 501 U.S. at 755; see also Ellis v. Lynaugh,

772   883 F.2d 363, 367 (5th Cir. 1989) (citing Murray v. Carrier, 477

773   U.S. 478, 488 (1986)).   Dowthitt puts forth two arguments to

774   establish that counsel’s ineffective assistance was of

775   constitutional dimension: (1) counsel’s failure to request the

776   hearing and (2) counsel’s concession that the blood from the

777   bottle was conclusively Gracie’s.

778        First, Dowthitt does not provide further detail (beyond his

779   assertion) as to why the failure to object rose to the level of a

780   Sixth Amendment violation.   Because this issue is inadequately

781   briefed, we do not consider it on appeal.      See Trevino, 168 F.3d

                                       35
782   at 181 n.3.   Furthermore, we have previously held that a mere

783   allegation “that . . . [trial counsel] provided ineffective

784   assistance of counsel in failing to so object[]” is not

785   sufficient to establish constitutionally prohibited conduct.

786   Washington v. Estelle, 648 F.2d 276, 278 (5th Cir. 1981) (stating

787   that it is “not for federal courts to speculate as to possibly

788   [sic] reasons for failure to object.” (internal quotations and

789   citation omitted)).   Dowthitt’s second argument for cause also

790   fails because we found in section II.B.5 that trial counsel’s

791   statements regarding DNA evidence did not rise to the level of

792   constitutional error.

793        Dowthitt also cannot rely on the “fundamental miscarriage of

794   justice” exception to the procedural bar because he did not

795   demonstrate substantial doubt as to his actual innocence.     See

796   section II.A, supra; see also Fearance v. Scott, 56 F.3d 633, 637

797   (5th Cir.), cert. denied, 515 U.S. 1153 (1995) (rejecting the

798   defendant’s attempt to expand the “narrow scope” of the

799   fundamental miscarriage of justice exception).

800        Thus, we find that Dowthitt’s claim regarding the admission

801   of DNA evidence is procedurally barred from federal habeas

802   review.29   We deny Dowthitt’s request for a COA on this claim



           29
              We also note that the state habeas court found, “[i]n
      the alternative, the State proved the reliability of the DNA
      evidence during the trial and there was no due process
      violation.”

                                       36
803   because he does not demonstrate that reasonable jurists would

804   find it debatable that the procedural ruling was correct.30



805                          D.    State Misconduct

806        Dowthitt argues that state misconduct violated his right to

807   due process and a fair trial.    In this regard, he makes the

808   following claims: intimidation of potential defense witness David

809   Tipps, breach in the chain of custody of the blood sample,

810   misrepresentation of the DNA evidence to the jury, failure to

811   disclose a felony indictment of State witness Darla Dowthitt,

812   and mischaracterization of Dowthitt’s interrogation statement

813   that he “was there the whole time.”    We will address each of

814   these arguments in turn.31




815             1. Intimidation of Potential Defense Witness

           30
              As we find that the first prong of the Slack COA inquiry
      for procedural claims has not been met, we do not need to address
      the second prong.
           31
              As an initial matter, we note that the state habeas
      court found Dowthitt did not adequately brief his state
      misconduct claims and thus did not properly present them for
      review. This indicates a lack of exhaustion on Dowthitt’s part
      because he did not “fairly apprise the . . . state of the federal
      rights which were allegedly violated.” Deters v. Collins, 985
      F.2d 789, 795 (5th Cir. 1993). However, as the state habeas
      court did not explicitly find that Dowthitt waived his misconduct
      claims and went on to make findings regarding those claims, we
      find that the state court had a “fair opportunity to pass upon
      the claim[s].” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
      1999) (internal quotatios and citation omitted).

                                        37
816        Dowthitt first asserts that David Tipps, Delton’s jailmate,

817   would have testified that Delton claimed he killed both girls;

818   however, after a visit from two State investigators, Tipps

819   refused to testify.   Dowthitt submits the affidavit of Joseph

820   Ward, his state habeas investigator, in support of the claim that

821   the State agents intimidated Tipps into not testifying.    Ward

822   states in his affidavit that Tipps would not sign an affidavit

823   out of fear for himself.

824        We must first decide whether this claim was “adjudicated on

825   the merits in State court proceedings.”   28 U.S.C. § 2254(d).

826   The state trial court held a hearing outside the presence of the

827   jury on this issue, and Dowthitt contested the trial court’s

828   ruling on direct appeal.   See Dowthitt v. State, 931 S.W.2d 244,

829   267 (Tex. Crim. App. 1996).   However, Dowthitt did not raise this

830   issue in his state habeas proceeding, but did do so in his brief

831   to the federal district habeas court.

832        “When faced with a silent or ambiguous state habeas

833   decision, the federal court should ‘look through’ to the last

834   clear state decision on the matter.”    Jackson v. Johnson, 194

835   F.3d 641, 651 (5th Cir. 1999).   Although the state habeas

836   decision is silent on this particular misconduct claim, the Texas

837   Court of Criminal Appeals, on direct appeal, unambiguously dealt

838   with the issue.   “Having determined that the issue was

839   adjudicated on the merits in state courts, we owe deference to



                                       38
840   their disposition of the claim under § 2554.”    Barrientes, 221

841   F.3d at 780.

842        The Court of Criminal Appeals determined that Tipps’s fears

843   of being a “snitch,” rather than a fear of prosecution, motivated

844   his decision not to testify in Dowthitt’s defense.    It based this

845   holding, in part, on Tipps’s continued defiance even in the face

846   of the trial court holding him in contempt.    We conclude that

847   reasonable jurists could not debate whether the decision of the

848   Court of Criminal Appeals was “contrary to, or involved an

849   unreasonable application of, clearly established . . . [Supreme

850   Court] law.”   28 U.S.C. § 2254(d)(1).   As such, reasonable

851   jurists could not “debate whether (or, for that matter, agree

852   that) the petition should have been resolved in a different

853   manner.”   Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000).      We

854   find that Dowthitt is not entitled to a COA on this state

855   misconduct claim.

856         2. Breach in the Chain of Custody of the Blood Sample

857        Dowthitt claims that the blood from which the DNA was

858   extracted originally came from a knife, and not a beer bottle, as

859   presented at trial.    In support, he offers the photograph of an

860   evidence label that has the typewritten words “scrapings from

861   lock blade knife” crossed out and replaced with the handwritten

862   words “from bottle.”   Dowthitt argues that the State thus




                                       39
863   presented false testimony, violating his Fourteenth Amendment

864   rights.

865        The state habeas court made several findings in this regard,

866   including: “no blood scrapings other than those from a beer

867   bottle recovered from [Dowthitt’s] shop were submitted for

868   testing[]”; “‘scrapings from lock blade knife’ [on evidence

869   label] was in error[]”; “only scrapings from a bottle, and not a

870   knife, were submitted for DNA testing.”

871        These findings are not unreasonable “in light of the

872   evidence presented in the State court proceeding.”    28 U.S.C.

873   § 2254(d)(2).    Given the high deference we accord to state court

874   determinations, we find that reasonable jurists would not debate

875   whether it should be have been resolved in a different manner,

876   and as such, we deny to issue a COA on this claim.

877             3. Misrepresentation of DNA Evidence to the Jury

878        Dowthitt argues that the State misrepresented the

879   conclusiveness of the DNA evidence to the jury during closing

880   arguments.    He contests the following statement: “You know it is

881   Gracie’s blood on that beer bottle.”

882        First, we need to consider if this claim was adjudicated on

883   the merits during state proceedings for § 2254(d) deference

884   purposes.    Dowthitt failed to object to this statement during

885   trial and did not raise it on direct appeal.    He did argue the

886   issue during state habeas proceedings, but the state habeas court



                                       40
887   made no findings in this regard.     Therefore, we must examine the

888   following factors to determine whether an adjudication on the

889   merits occurred:

890        (1) what the state courts have done in similar cases;
891        (2) whether the history of the case suggests that the
892        state court was aware of any ground for not
893        adjudicating the case on the merits; and (3) whether
894        the state courts’ opinions suggest reliance upon
895        procedural grounds rather than a determination on the
896        merits.

897   Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).

898        As for the first factor, Texas courts have consistently held

899   that unless the prosecutor’s comments were “clearly calculated to

900   inflame the minds of the jurors and is of such character as to

901   suggest the impossibility of withdrawing the impression

902   produced,” the failure to object timely waives any error.     Van

903   Zandt v. State, 932 S.W.2d 88, 93 n.1 (Tex. App. — El Paso 1996,

904   pet. ref’d).   We find that the prosecutor’s argument in this case

905   does not fall within the exception to the failure to make a

906   contemporaneous objection.   As Dowthitt did not object at trial,

907   the first factor points toward an adjudication on the merits.

908        Similarly, the history of the case also favors adjudication

909   on the merits.   Rather than arguing the contemporaneous objection

910   rule, the State addressed this claim on the merits the first time

911   it was raised, in federal habeas proceedings.    As for the third

912   factor, we have previously held that under Texas law, “a denial

913   of relief by the Court of Criminal Appeals serves as a denial of

914   relief on the merits.”   Miller v. Johnson, 200 F.3d 274, 281 (5th

                                      41
915   Cir. 2000).   Thus, the state court’s denial of habeas relief does

916   not indicate a procedural adjudication.

917        We find that an “adjudication on the merits” under § 2254(d)

918   occurred with regard to this state misconduct claim.    Therefore,

919   we conduct a deferential review, as mandated by AEDPA.      We next

920   proceed to analyze whether Dowthitt made a substantial showing of

921   the denial of his due process and fair trial rights.

922        In habeas corpus proceedings, we review allegedly improper

923   prosecutorial statements under a strict standard.    “The

924   statements must render the trial fundamentally unfair.”

925   Barrientes, 221 F.3d at 753.    “[I]t is not enough that the

926   prosecutors’ remarks were undesirable or even universally

927   condemned.    The relevant question is whether the prosecutors’

928   comments so infected the trial with unfairness as to make the

929   resulting conviction a denial of due process.”    Darden v.

930   Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and

931   citations omitted).

932        We have held that “[i]n the context of closing argument,

933   . . . [the prosecutor is not] prohibited from reciting to the

934   jury those inferences and conclusions she wishes the jury to draw

935   from the evidence so long as those inferences are grounded upon

936   evidence.”    United States v. Munoz, 150 F.3d 401, 414-15 (5th

937   Cir. 1998), cert. denied, 525 U.S. 1112 (1999) (internal

938   quotations omitted).    In this case, the prosecutor’s statement is



                                       42
939   a reasonable one, requesting the jury to draw a desired

940   conclusion based upon the evidence.32

941        As such, we find that the state court denial of Dowthitt’s

942   claims reasonable under the standards set forth by § 2254(d).

943   Dowthitt does not demonstrate a substantial showing of the denial

944   of his due process rights and, therefore, is not entitled to a

945   COA in this regard.

946       4. Failure to Disclose Felony Indictment of State Witness

947        Dowthitt argues that the State failed to disclose that Darla

948   Dowthitt, Dowthitt’s daughter, was under felony indictment

949   (indecency with a child) when she testified for the prosecution

950   at the guilt/innocence phase of the trial.   Pointing to the fact

951   that Darla’s own trial date was reset several times, Dowthitt

952   claims that an oral agreement had been struck between the State

953   and Darla.   Thus, the nondisclosure violated the Supreme Court’s

954   mandate in Brady v. Maryland, 373 U.S. 83 (1963).    The State

955   responds that no deal was struck for Darla’s testimony, and as

956   such, Dowthitt has no viable Brady claim.

957        The suppression of evidence material to guilt or punishment

958   violates a defendant’s fundamental due process rights.    See id.

959   at 87.    The Court has “since held that the duty to disclose such

960   evidence is applicable even though there has been no request by

961   the accused, and that the duty encompasses impeachment evidence

           32
              The State presented the DNA results and the testimony of
      experts explaining those results during trial.

                                       43
962   as well as exculpatory evidence.”    Strickler v. Greene, 527 U.S.

963   263, 280 (1999) (citations omitted).    Such evidence is material

964   “if there is a reasonable probability that, had the evidence been

965   disclosed to the defense, the result of the proceeding would have

966   been different.”   Kyles v. Whitley, 514 U.S. 419, 433 (1995)

967   (internal quotations and citations omitted).

968        “To prevail on a Brady claim, the defendant must [thus]

969   demonstrate that (1) the prosecution suppressed evidence; (2) the

970   evidence was favorable to him; and (3) the evidence was ‘material

971   either to guilt or punishment.’”     Vega v. Johnson, 149 F.3d 354,

972   363 (5th Cir. 1998), cert. denied., 525 U.S. 1119 (1999).     In

973   this case, there is no dispute that the indictment existed and

974   the prosecution did not reveal it to the defense.    This evidence

975   arguably would have been favorable to Dowthitt’s case.

976        While the first two prongs of the test have been satisfied

977   here, Dowthitt fails on the third prong — materiality.    “The

978   existence of an indictment, as opposed to a conviction, is not

979   generally admissible to impeach.”    Id. (citing as example

980   Michelson v. United States, 335 U.S. 469, 482 (1948)).     “Under

981   Texas law, the existence of the indictment becomes admissible

982   only if the witness, on direct examination, misrepresents himself

983   as having no trouble with the law . . . . The only other

984   exception, for witnesses whose testimony might be affected by the

985   indictment . . . [is a] relationship between [the] prosecution



                                      44
 986   and [the witness’s] case.”    Id. (internal quotations and citation

 987   omitted).

 988        First, Darla made no such misrepresentations, and thus the

 989   first exception would not have applied.    Dowthitt also cannot

 990   rely on the second exception.    The state habeas court found that

 991   the “prosecutors did not offer Darla a deal for her testimony and

 992   did not reset her case to avoid a felony conviction for

 993   impeachment purposes.”    We presume this finding to be correct

 994   under § 2254(e)(1).    Dowthitt has not clearly and convincingly

 995   refuted the evidence in the record supporting the state court’s

 996   determination that no suppression of evidence occurred because no

 997   deal even existed.33

 998        We find that Dowthitt fails to demonstrate the requisite

 999   “reasonable probability” that the outcome would have been

1000   different.    Thus, he does not make a substantial showing of the

1001   denial of a constitutional right and is not entitled to a COA on

1002   this claim.

1003     5. Mischaracterization of Dowthitt’s Interrogation Statement


            33
               Testifying at the punishment phase, Darla unequivocally
       stated that no deal existed, that she did not believe a deal
       existed, and that she would not make a deal because she was “not
       guilty.” The prosecutor filed an affidavit during state habeas
       proceedings also affirming that no deal was made with Darla to
       procure her testimony. In response, Dowthitt states that Darla
       eventually received a lenient sentence for a plea and early
       release from probation. This information, by itself, is not
       sufficient to overcome the above evidence to the contrary (as any
       number of factors could have accounted for the eventual
       disposition of her case).

                                        45
1004        Detective Hidalgo testified during the guilt/innocence phase

1005   that Dowthitt stated during the interrogation, “I was there the

1006   whole time.”34   Dowthitt asserts that this statement was

1007   misrepresented as a admission of being present at the scene.    He

1008   claims that the video of the interrogation demonstrates that

1009   Dowthitt was actually indicating disbelief by repeating the

1010   statement.

1011        As we have done in Part II.D.2 and II.D.3, supra, we must

1012   first determine whether an adjudication on the merits occurred in

1013   state courts.    With no statement from the habeas court directly

1014   on point, we are directed to look through to the last clear state

1015   decision on the issue. See Jackson v. Johnson, 194 F.3d 641, 651

1016   (5th Cir. 1999).    On direct appeal, the Texas Court of Criminal

1017   Appeals found that Dowthitt’s “admission to being present during

1018   the murders occurred around 1:00 a.m.”    Dowthitt v. State, 931

1019   S.W.2d 244, 253 (Tex. Crim. App. 1996).    Thus, we find that this

1020   issue was adjudicated on the merits in state proceedings, and we

1021   examine the result with the deference demanded by AEDPA.    See 28

1022   U.S.C. § 2254(d).



            34
               The interrogation went, in relevant part, as follows:
            Mr. Dowthitt: Man, I didn’t do nothing.
            Hidalgo:       But you were there, not soon after it
                           happened, weren’t you? You weren’t far
                           away.
            Hendricks:     He was there the whole time.
            Hidalgo:       And you know what’s bothering you?
            Mr. Dowthitt: I was there the whole time.

                                        46
1023        Beyond his assertions that he did not make an admission,

1024   Dowthitt does not demonstrate that the state court’s adjudication

1025   was unreasonable in light of the record.35   Thus, reasonable

1026   jurists would not “debate whether . . . the petition should have

1027   been resolved in a different manner.”   Slack v. McDaniel, 120 S.

1028   Ct. 1595, 1603-04 (2000).   Accordingly, we deny Dowthitt a COA on

1029   this claim.



1030              E.   Instruction on Lesser-Included Offenses

1031        Dowthitt argues that the trial court erred in failing to

1032   instruct the jury on lesser-included offenses of murder, felony

1033   murder or aggravated sexual assault, thus violating his rights

1034   under the Fifth, Sixth, Eighth, and Fourteenth Amendments.36    He

1035   asserts that evidence existed that would support convictions on

1036   the lesser crimes, as opposed to capital murder: the beer bottle

1037   with Gracie’s blood indicated sexual assault, but not murder; the

            35
               Both the state court and the district court below
       reviewed the videotapes and disagreed with Dowthitt’s
       characterization of the statement.
            36
               We note that the state habeas court found Dowthitt “did
       not object to the absence of a lesser-included instruction.”
       However, the court did not explicitly find that, as a matter of
       law, Dowthitt waived any error (which the court did with regard
       to the admission of DNA evidence). This, combined with the fact
       finding that Dowthitt was not guilty of the lesser-included
       offense, indicates that the state habeas court made its decision
       on the merits. We therefore do not find a procedural bar to this
       claim. Furthermore, “[h]aving determined that the issue was
       adjudicated on the merits in state courts, we owe deference to
       their disposition of the claim under § 2254.” Barrientes v.
       Johnson, 221 F.3d 741, 780 (5th Cir. 2000).

                                       47
1038   knife alleged to be the murder weapon was not connected to the

1039   sexual assault; and the jury knew that Delton confessed to

1040   killing both girls in his first confession.   The State responds

1041   that one cannot base an argument for a lesser-included offense on

1042   the jury disbelieving portions of the State’s case.   In reply,

1043   Dowthitt maintains, given that no relevant physical evidence

1044   actually connected him to the murder, the jury had before it

1045   multiple scenarios, which lead to different crimes.

1046        We do not agree because Dowthitt fails to make a substantial

1047   showing that his case met the requirements that would necessitate

1048   instructions on lesser-included offenses.37   Contrary to

1049   Dowthitt’s assertions, “[i]t is not enough that the jury may

1050   disbelieve crucial evidence pertaining to the greater offense.

1051   Rather, there must be some evidence directly germane to a

1052   lesser-included offense for the factfinder to consider before an

1053   instruction on a lesser-included offense is warranted.”     Jones v.

1054   Johnson, 171 F.3d 270, 274 (5th Cir. 1999; see also Banda v.

1055   State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994) (“The credibility

1056   of the evidence and whether it conflicts with other evidence or

1057   is controverted may not be considered in determining whether an

1058   instruction on a lesser-included offense should be given.”).


            37
               A state trial court may not, under Beck v. Alabama, 447
       U.S. 625 (1980), refuse a lesser-included offense instruction “if
       the jury could rationally acquit on the capital crime and convict
       for the noncapital crime.” Cordova v. Lynaugh, 838 F.2d 764, 767
       (5th Cir.), cert. denied, 486 U.S. 1061 (1988).

                                       48
1059        As such, Dowthitt has not presented clear and convincing

1060   evidence to rebut the state habeas court’s finding that “there

1061   was no evidence showing that [Dowthitt] was guilty [only] of the

1062   lesser offenses of rape and murder.”      Dowthitt thus fails to

1063   demonstrate that reasonable jurists would debate the propriety of

1064   not granting an instruction for lesser-included offenses.      With

1065   no substantial showing on this claim, Dowthitt does not meet the

1066   requirement for a COA.



1067               F.     District Court’s Evidentiary Hearing

1068        Dowthitt asserts that the district court erred in providing

1069   only a limited evidentiary hearing on his actual innocence claim

1070   and in not holding a hearing on his other claims.      He argues that

1071   the lack of factual development below was not due to his actions

1072   or lack thereof.    Dowthitt faults particularly the state habeas

1073   court judge’s actions.    He states that the judge who presided

1074   over his state district court habeas proceedings, had recused

1075   himself from trial because one of the trial counsel was his own

1076   attorney in a divorce proceeding.      The judge, however, did not

1077   recuse himself from the habeas proceedings, refused to conduct an

1078   evidentiary hearing on the habeas claims, and accepted verbatim

1079   the prosecution’s proposed findings.

1080        Section 2254(e)(2) guides our determination of whether these

1081   requested evidentiary hearings were appropriate in this case.

1082   “If an applicant had failed to develop the factual basis of a

                                         49
1083   claim in State court proceedings,” the federal court may hold an

1084   evidentiary hearing if:

1085        (A) the claim relies on
1086           (i) a new rule of constitutional law, made
1087        retroactive to cases on collateral review by the
1088        Supreme Court, that was previously unavailable; or
1089           (ii) a factual predicate that could not have been
1090        previously discovered through the exercise of due
1091        diligence; and
1092        (B) the facts underlying the claim would be sufficient
1093        to establish by clear and convincing evidence that but
1094        for the constitutional error, no reasonable factfinder
1095        would have found the applicant guilty of the underlying
1096        offense.

1097   28 U.S.C. § 2254(e)(2).

1098        “Under the opening clause of § 2254(e)(2), a failure to

1099   develop the factual basis of a claim is not established unless

1100   there is a lack of diligence, or some greater fault, attributable

1101   to the prisoner or the prisoner’s counsel.”   (Michael) Williams

1102   v. Taylor, 120 S. Ct. 1479, 1488 (2000).   Furthermore, the

1103   (Michael) Williams Court associated the “failure to develop”

1104   standard with the cause inquiry for procedural default.     See id.

1105   at 1494.

1106        Dowthitt argues that he exercised due diligence because he

1107   requested evidentiary hearings in state habeas proceedings, and

1108   those requests were denied.   Thus, he asserts that his failure to

1109   develop his habeas claims are excused under § 2254(e)(2).     We do

1110   not agree.   Mere requests for evidentiary hearings will not

1111   suffice; the petitioner must be diligent in pursuing the factual

1112   development of his claim.   As the state habeas court found,


                                       50
1113   Dowthitt did not present affidavits from family members and did

1114   not show that they “could not be obtained absent an order for

1115   discovery or a hearing.”   In response, Dowthitt now argues that

1116   his “proffers” of what would be presented at a hearing

1117   constituted due diligence.   We do not find his argument

1118   persuasive.   Given that the family members were willing to

1119   testify at a hearing, Dowthitt could have easily obtained their

1120   affidavits.   A reasonable person in Dowthitt’s place would have

1121   at least done as much.   Dowthitt’s arguments that lack of funding

1122   prevented the development of his claims are also without merit.

1123   Obtaining affidavits from family members is not cost prohibitive.

1124   Thus, Dowthitt has not rebutted the state habeas finding in this

1125   regard.

1126        We find that Dowthitt has not made a substantial showing of

1127   meeting the requirements set forth in § 2254(e)(2) that would

1128   entitle him to a federal habeas evidentiary hearing.   As such, he

1129   is not entitled to a COA on this claim.38

            38
               Even if Dowthitt had met the § 2254(e)(2) standard, he
       would still have to clear another hurdle to obtain a COA. “After
       the [§ 2254(e)] standard is met, the district court’s denial is
       reviewed for abuse of discretion.” Clark v. Johnson, --- F.3d
       ----, 2000 WL 1285270, *9 (5th Cir. 2000). When the district
       court has “‘sufficient facts before it to make an informed
       decision on the merits of [the habeas petitioner’s] claim,’ it
       does not abuse its discretion in failing to conduct an
       evidentiary hearing.” Barrientes, 221 F.3d at 770; see also
       United States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984)
       (“Where, as here, allegations contained in a habeas petition are
       either contradicted by the record or supported by conclusory
       factual assertions incapable of being tested in an evidentiary
       hearing, no hearing is required.”). Given that the district

                                       51
1130                           III.   CONCLUSION

1131        For the foregoing reasons, we DENY Dowthitt’s request for a

1132   COA on all of his claims and VACATE the stay of execution.




       court analyzed whether Dowthitt received a “full and fair
       hearing” in the state courts, found that Judge Alworth’s conduct
       was proper, and wrote a thorough opinion taking into account all
       credible evidence, reasonable jurists would not disagree that the
       district court acted well within its discretion.

                                       52
