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

                                  No. 15-70007
                                                                             Fifth Circuit

                                                                           FILED
                                                                    February 25, 2016

KOSOUL CHANTHAKOUMMANE,                                               Lyle W. Cayce
                                                                           Clerk
             Petitioner−Appellant,

v.

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

            Defendant–Appellant.



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


Before PRADO, OWEN, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      In   2007,    a   Texas   jury   convicted   Petitioner−Appellant           Kosoul
Chanthakoummane of capital murder and sentenced him to death. After
unsuccessfully seeking state habeas relief, Petitioner filed a federal habeas
corpus petition asserting 16 constitutional errors. The district court denied his
petition and declined to grant a certificate of appealability (“COA”).
      Petitioner now seeks a COA to appeal the district court’s dismissal of his
federal petition on two grounds: (1) his trial counsel was ineffective for failing
to sufficiently investigate, develop, and present mitigating evidence and (2) his
trial counsel was ineffective for failing to challenge whether the murder was
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                                  No. 15-70007
committed during the commission of a robbery. After careful consideration of
his arguments and the record, we deny his application for a COA.
         I.   FACTUAL AND PROCEDURAL BACKGROUND
A.    The guilt phase of Petitioner’s trial
      On July 8, 2006, real estate agent Mamie Sharpless received a call from
a man identifying himself as “Chan Lee” who said he wanted to look at a
townhome listed in the Craig Ranch neighborhood of McKinney, Texas.
According to Sharpless, the man said he had just moved to the area from North
Carolina. He also said he was calling from a pay phone at a 7-Eleven near the
intersection of “Midway and Park” because he did not have a cell phone.
      Sharpless arrived at the Craig Ranch neighborhood with her husband
between 11:30 a.m. and noon. Sharpless stated that they waited in their car
until a man in a white Ford Mustang drove by and parked in front of the D.R.
Horton model home near the listed townhome. They approached the car and
asked if he was “Chan Lee,” to which he replied, “No.” Sharpless described the
person in the white Mustang as a muscular man of Asian descent, who was
about 5’4” or 5’5” tall and had a buzz cut. During the trial, Sharpless identified
Petitioner as the man she saw that day. Shapless’s husband stated that while
Sharpless showed the townhome to another potential buyer, he looked out the
window and saw Sarah Walker, another real estate agent, arrive in the
neighborhood and enter the D.R. Horton model home where she worked.
      At roughly 1:10 p.m., a couple entered the D.R. Horton model home to
find it “ransacked” and noticed a large pool of blood in the dining room. A trail
of blood led to the kitchen where they found Walker’s body lying face up, her
upper body covered in blood. An autopsy found that while Walker exhibited
some defensive injuries indicating a struggle, she had sustained several blunt
force traumas to her head resulting in a broken nose and fractured teeth and


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                                  No. 15-70007
had been stabbed 33 time, 10 of which penetrated her vital organs. Walker also
had a bite mark on her neck.
      According to Walker’s ex-husband, who saw her the morning of the day
she was killed, she showed him a new Rolex watch she had recently purchased.
Photos from a Bank of America branch that Walker visited at approximately
11:45 a.m. that morning showed Walker wearing a watch and a ring. When
Walker’s body was discovered, both were missing. When police later searched
Walker’s home, while they found a box to a Rolex watch and its receipt, the
watch was never located.
      At the crime scene, McKinney police found a bloody fingerprint on the
dead bolt of the model home’s front door. Analysis of the DNA found under
Walker’s fingernails, on the deadbolt, and from other parts of the model home
linked Petitioner to the murder. After the police received the results of this
DNA analysis, they arrested Petitioner on September 5, 2006.
      Texas Ranger A.P. Davidson testified that Petitioner owned a white Ford
Mustang and lived approximately three miles from the pay phone at the
intersection of Midway and Park where “Chan Lee” had said he was calling
Sharpless from. Officer Davidson also stated that he spoke to Petitioner’s sister
who said that Petitioner had attended school in North Carolina and had moved
from Charlotte, North Carolina, to Dallas in February 2006.
      Petitioner was questioned at the McKinney Police Department. At first,
Petitioner denied having been in McKinney on the day of the murder. He then
relented, stating that his car had broken down in front of “a model house.” He
said that he knocked on the model home’s door and took “three or four steps”
inside. Finding no one there, he went back outside where he spoke to a man
and woman. Petitioner next stated that he went back into the model home to
get a drink of water but couldn’t figure out how to use the faucet, so he left. He
also said that at this time he had “old cuts” on his hands “from work,” and
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                                   No. 15-70007
opined that this might explain how his blood could have ended up in the model
home.
      At trial, the jury heard the testimony of Dr. Brent Hutson, a forensic
dentist who examined Petitioner and concluded that “within reasonable dental
certainty beyond a doubt” that Petitioner was responsible for the bite mark on
Walker’s neck. Petitioner’s trial counsel called its own dental expert who
criticized aspects of Dr. Hutson’s analysis and opined that the bite mark found
on Walker’s neck was not distinctive enough to conclude that it came from
Petitioner.
        Several experts testified about the DNA analysis done on samples found
in the model home and on Walker’s body. The State’s witness, Dr. Stacy
McDonald, testified about the process used to analyze the genetic material
found in the model home and under Walker’s fingernails and stated that it
matched Petitioner’s DNA profile. Petitioner’s trial counsel cross-examined Dr.
McDonald and called its own expert in an attempt to undermine Dr.
McDonald’s testimony.
        After hearing this evidence, the jury found Petitioner guilty of
intentionally killing Walker with a deadly weapon while in the course of
committing a robbery.
B.      The punishment phase of Petitioner’s trial
        At the punishment phase, the jurors learned about Petitioner’s early life,
including his interactions with law enforcement and the criminal justice
system. This included a conviction for attacking a friend causing six fractured
ribs, a concussion, and other injuries. The jury also learned that shortly after
this incident, Petitioner attacked another person leaving the victim with a
fractured arm.
        The jury learned that in 1997, while on furlough from a juvenile facility,
Petitioner, along with two friends, broke into a home, robbed the residents at
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                                 No. 15-70007
gunpoint, restrained them using an electrical cord, and then stole a car
belonging to one of the victims. He pleaded guilty to kidnapping and robbery
and was sentenced to 51 to 71 months imprisonment. The jurors also learned
that Petitioner was a member of a gang associated with the Crips, and that
while in prison he was punished for possessing a “shank or some type of
weapon.”
      The defense’s case on mitigation focused mainly on trying to show that
Petitioner did not pose a future risk. The director of one of the facilities that
Petitioner had been placed in as a juvenile testified that he had not known
Petitioner as someone that “created problems.” He also remembered Petitioner
as a talented artist who was humble and quiet.
      Several corrections officers from North Carolina testified that Petitioner
did not have any disciplinary issues, had not caused problems while
incarcerated, and that they did not consider Petitioner to be dangerous during
the time they knew him. A fellow inmate testified that Petitioner had not
caused trouble during the time they were incarcerated together.
      A forensic clinical psychologist testified that based on a review of
Petitioner’s prison disciplinary record, there was not a high probability that he
would commit criminal acts of violence while incarcerated or constitute a
continuing danger to society. The defense also called Petitioner’s case manager
from North Carolina, who stated that she remembered him as being “very quiet
[and] polite.”
      After considering this information, the jury sentenced Petitioner to
death.
C.    Procedural background
      Following his conviction and sentence, Petitioner filed a direct appeal to
the Texas Court of Criminal Appeals (“TCCA”). The TCCA denied his appeal
and affirmed his conviction and sentence. Chanthakoummane v. State, No. AP-
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                                  No. 15-70007
75,794, 2010 WL1696789 (Tex. Crim. App. April 28, 2010) (unpublished).
Petitioner sought review by the Supreme Court of the United States, which
denied his petition for a writ of certiorari. Chanthakoummane v. Texas, 131 S.
Ct. 506 (2010).
      Petitioner filed his state petition for a writ of habeas corpus in April
2010. The state trial court conducted an evidentiary hearing, entered findings
of fact and conclusions of law, and recommended that the petition be denied.
Ex Parte Chanthakoummane, No. WR-78,107-01, 2013 WL 363124, at *1 (Tex.
Crim. App. Jan. 30, 2013) (unpublished). On appeal, the TCCA affirmed. Id.
Petitioner filed his federal petition for a writ of habeas corpus in January 2014,
raising 16 grounds for relief. In March 2015, the district court denied the
petition and declined to grant a COA.
          II.     JURISDICTION AND STANDARD OF REVIEW
      A prisoner may not appeal the district court’s denial of a petition for a
writ of habeas corpus without first obtaining a COA. 28 U.S.C. § 2253(c)(1);
Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Where, as here, the district
court did not grant a COA on any of Petitioner’s claims, we have jurisdiction
only to determine whether a COA should be granted. 28 U.S.C. § 2253(c)(1);
Miller-El, 537 U.S. at 335–36.
      No COA can issue unless the petitioner has “made a substantial showing
of the denial of a constitutional right.” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting 28 U.S.C. § 2253(c)(2)). To make such a showing, “petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack
v. McDaniel, 529 U.S. 472, 484 (2000)). In making this determination, we
consider only “the debatability of the underlying constitutional claim, not the
resolution of that debate.” Miller-El, 537 U.S. at 342.


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                                     No. 15-70007
      “[T]he determination of whether a COA should issue must be made by
viewing the petitioner’s arguments through the lens of the deferential scheme
laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th
Cir. 2000). Pursuant to § 2254(d), a prisoner in state custody is not entitled to
federal habeas corpus relief unless the state court proceedings either “(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law . . . or; (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d).
                              III.    DISCUSSION
      Both of Petitioner’s claims on appeal allege that his state trial counsel
was ineffective, thus violating his rights under the Sixth and Fourteenth
Amendments to the United States Constitution. These claims are governed by
the two-prong test provided in Strickland v. Washington, 466 U.S. 668 (1984).
Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008). Under the first
prong, Petitioner bears the burden of showing that his “counsel’s performance
was deficient.” Id. “[E]stablish[ing] deficient performance . . . [requires a]
show[ing] that counsel’s representation ‘fell below an objective standard of
reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). In evaluating this
question, “we make every effort to eliminate the distorting effects of hindsight,
and attempt to adopt the perspective of counsel at the time of the
representation.” Id. Further, we apply “a strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance.” Id. Under
the second Strickland prong, Petitioner bears the burden of showing that “his
counsel’s deficient performance resulted in prejudice.” Id. This requires
demonstrating that but for counsel’s deficient performance, “there is a
reasonable probability that the outcome of the proceeding would have been
different.” Id.
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                                  No. 15-70007
A.    Whether Petitioner’s trial counsel was ineffective for failing to
      adequately investigate, develop, and present mitigating
      evidence
      Petitioner contends that his trial counsel was ineffective for failing to
develop and present the following mitigating evidence: (1) records from the
North Carolina Department of Social Services (“NCDSS”) showing Petitioner’s
dysfunctional family life; (2) school records showing that Petitioner suffered
from a hearing impairment as a child; (3) the impact of the Laotian immigrant
experience on Petitioner’s upbringing; and (4) the failure of trial counsel to call
Petitioner’s family members to testify at the punishment stage of his trial.
      On each of the grounds raised by Petitioner, the record does not reflect
that his trial counsel’s representation fell below the standard of diligence
required. For instance, trial counsel requested NCDSS records in Petitioner’s
name and conducted an investigation into Petitioner’s background and
upbringing. This included conducting interviews with Petitioner’s family
members that uncovered the same information about his parents’ harsh
approach to child rearing that Petitioner claims were contained in the NCDSS
records.
      Petitioner’s trial counsel also requested records from his school and
collected information from Petitioner’s family regarding Petitioner’s hearing
problems and the treatment he received. Further, the State provided Petitioner
with grand jury testimony given by his sister that mentioned Petitioner’s
hearing issues. Given the fact that trial counsel had collected evidence of
Petitioner’s childhood hearing issues, counsel was not unreasonable for failing
to locate the particular record Petitioner focuses on here. See Moore v. Johnson,
194 F.3d 586, 616 (5th Cir. 1999) (“Counsel is ‘not required to pursue every
path until it bears fruit or until all hope withers.’” (quoting Lovett v. Florida,
627 F.2d 706, 708 (5th Cir. 1980))).


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                                  No. 15-70007
      Trial counsel was also aware of Petitioner’s immigrant story. Petitioner’s
father, mother, and sister discussed their immigrant background at length in
their interviews with Petitioner’s trial counsel. Trial counsel reasonably chose
not to present this information to the jury. As trial counsel stated, it was “clear
that, as applied to [Petitioner’s] life, it was not mitigating.” Rather, trial
counsel concluded that this information “could easily be seen as an aggravating
factor,” because it would highlight the fact that his siblings, who grew up in
the same environment, “had avoided a life of violent gang involvement and
violent crimes.” This is precisely the type of strategic decision we have
repeatedly said does not form the basis for a claim of ineffective assistance of
counsel. See Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir. 2003) (“[T]his
Court has repeatedly denied claims of ineffective assistance of counsel for
failure to present ‘double edged’ evidence where counsel has made an informed
decision not to present it.” (quoting Boyle v. Johnson, 93 F.3d 180, 188 (5th Cir.
1996))).
      The same is true of trial counsel’s decision not to call Petitioner’s family
members to testify. Having made the strategic choice to focus their argument
on convincing the jury that Petitioner should not be given the death penalty
because he did not pose a future threat, trial counsel reasonably concluded that
calling Petitioner’s family members to the stand would have been detrimental
to his case. Specifically, it was feared that permitting Petitioner’s family
members to testify would have invited the State to introduce evidence of his
gang affiliations and his long history of violence. Additionally, at least one of
Petitioner’s family members—his mother—had expressed the opinion that
Petitioner deserved to be put to death. As the state habeas court observed, in
light of this risk, trial counsel reasonably concluded that calling his family
members to testify would not have been in his best interest.


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                                    No. 15-70007
        Petitioner has also failed to raise a debatable question that trial counsel’s
conduct caused him prejudice. As the state court noted, the evidence contained
in the NCDSS records “was weak.” Specifically, the records stated that
Petitioner’s sister had run away from home and made an allegation of abuse
but that her allegation was determined to be “unsubstantiated.” Further,
Petitioner’s trial counsel were aware of the allegations of abuse and
nevertheless decided that it would not have offered convincing mitigation
evidence.
        The mitigation value of Petitioner’s school hearing test records is weaker
yet. While they showed that Petitioner suffered from some minor hearing
problems as a child, these issues were resolved by the fifth grade when he was
fitted for hearing aids. While Petitioner asserts that the outcome of his trial
would have been different had the jury known about his hearing problems and
the impact they had on his development as a child, he fails to explain how this
would have been the case.
        Petitioner has also failed to show that he was prejudiced from his trial
counsel’s decision not to introduce additional evidence about his family’s
immigrant story. First, in light of the fact that trial counsel did introduce this
aspect of Petitioner’s life story through his juvenile counselor, Petitioner has
not shown what additional evidence should have been introduced or how it
might     have   changed    the   outcome.    Accordingly,    Petitioner   has   not
demonstrated that further evidence of this sort would not have been
cumulative. See Lincecum v. Collins, 958 F.2d 1271, 1280 (5th Cir. 1992)
(holding that no prejudice occurred where the unpresented evidence would
have been cumulative of evidence already presented).
        Second, on habeas review “the reviewing court must consider all the
evidence—the good and the bad—when evaluating prejudice.” Wong v.
Belmontes, 558 U.S. 15, 26 (2009). That is, “it is necessary to consider all the
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                                   No. 15-70007
relevant evidence that the jury would have had before it if [counsel] had
pursued the different path—not just the mitigation evidence [counsel] could
have presented, but also the [negative] evidence that almost certainly would
have come in with it.” Id. at 20. As trial counsel observed, had they attempted
to introduce further evidence of Petitioner’s immigrant story, they ran the risk
that this evidence would be aggravating rather than mitigating. As his trial
counsel stated:
      As the investigation progressed, however, it became clear that, as
      applied to [Petitioner’s] life, it was not mitigating. . . . The horrible
      immigration experience of [Petitioner’s] father and mother was
      just that–an experience of his father and mother. [Petitioner] was
      born in the United States, and to my knowledge has never
      travelled outside the United States. [Petitioner] did not have those
      experiences himself. If his mother or father had been charged with
      a crime, it certainly would have been a factor of their background.
      Indeed the argument existed that he had been rescued by his
      parents from that experience, but in return he had not taken
      advantage of this opportunity by his decision to join gangs. This
      was in juxtaposition from the relatively productive lives his
      siblings had developed from the same parentage.

      Finally, Petitioner has not shown that he was prejudiced by his trial
counsel’s decision not to call his family members to testify. Much like counsel’s
decision not to further advance Petitioner’s family’s immigrant story, counsel
recognized the significant risk of allowing his family to testify. As one of his
attorneys explained:
      [C]alling family members to testify would have allowed the State
      to introduce evidence concerning [Petitioner’s] Asian gang history
      and gang affiliation. . . . Gang affiliation is a strong predictor of
      future violence. . . . It was decided that having family members
      corroborate this history would be extremely counterproductive to
      the assertion that [Petitioner] would not be a threat to anyone in
      prison.



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                                   No. 15-70007
Further, counsel worried that if called to the stand, Petitioner’s own mother
would opine that Petitioner deserved the death penalty rather than a life
sentence: “On the whole it was believed that putting his mother on the stand,
when she would say that in her opinion he deserved the death penalty, would
not be in [Petitioner’s] best interest.”
       This is precisely the type of “double edged” evidence we have previously
said cannot form the basis for a claim of ineffective assistance of counsel. See
Boyle, 93 F.3d at 188. In light of both “the good and the bad” calling his family
members may have done, Petitioner has not shown that his counsel’s decision
caused him prejudice. See Wong, 558 U.S. at 20, 26.
       For these reasons, Petitioner has not raised a debatable question as to
whether the state court’s decision denying his request for habeas relief was
contrary to clearly established federal law or made an unreasonable
determination of the facts. Accordingly, Petitioner’s request for a COA as to
this claim is denied.
B.     Whether Petitioner’s trial counsel was ineffective for failing to
       challenge that Walker’s murder was committed in the course of
       a robbery
       Petitioner argues that the district court erred by failing to find that his
trial counsel was ineffective for not challenging the allegation that he
murdered Walker while committing a robbery. At trial, Petitioner’s counsel
made the decision to concede the robbery, stating: Petitioner “wanted to rob
[Walker], and it didn’t go the right way, and he killed her.”
       While Petitioner raised this issue as a sufficiency-of-the-evidence
challenge on direct appeal before the state court, he failed to raise this issue
on state habeas review. Accordingly, Petitioner has failed to exhaust this claim
before the state courts. Under The Anti-Terrorism and Effective Death Penalty
Act, but for two narrow exceptions that do not apply here, state prisoners


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                                  No. 15-70007
seeking a writ of habeas corpus are required to exhaust available state
remedies. 28 U.S.C. § 2254(b)(1).
      While Petitioner’s failure to exhaust this claim generally would result in
the dismissal of his petition, see Galtieri v. Wainwright, 582 F.2d 348, 355 (5th
Cir. 1978), recently, the Supreme Court opened the possibility that an
unexhausted claim of ineffective assistance of counsel could be considered for
the first time on federal habeas review, see Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012); Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013). As we explained
in Preyor v. Stephens, 537 F. App’x 412 (5th Cir. 2013) cert. denied, 134 S. Ct.
2821 (2014):
      To succeed in establishing cause to excuse the procedural default
      of his ineffective assistance of trial counsel claims, [Petitioner]
      must show that (1) his underlying claims of ineffective assistance
      of trial counsel are “substantial,” meaning that he “must
      demonstrate that the claim[s] ha[ve] some merit,” and (2) his
      initial state habeas counsel was ineffective in failing to present
      those claims in his first state habeas application.

Id. at 412 (second and third alterations in original) (citations omitted) (quoting
Martinez, 132 S. Ct. at 1318). “[T]he petitioner’s failure to establish the
deficiency of either attorney precludes a finding of cause and prejudice.” Sells
v. Stephens, 536 F. App’x 483, 492 (5th Cir. 2013) (unpublished), cert. denied,
134 S. Ct. 1786 (2014).
      Petitioner has neither argued nor shown that his state habeas counsel
was ineffective. Accordingly, Petitioner has not overcome his burden of
showing cause and prejudice for his failure to exhaust this claim before the
state court and is barred from raising it here.
      Even if Petitioner had established the ineffectiveness of his state habeas
counsel, his effort would still fall short. While Petitioner argues he has shown
that his ineffective-assistance-of-counsel claim based on the conduct of his trial

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                                  No. 15-70007
counsel has merit, his brief does little but disagree with trial counsel’s strategy
in light of the fact that it did not work. As the state court observed on direct
appeal, there was more than enough evidence for the jury to find that
Petitioner had committed the murder in the course of a robbery. See
Chanthakoummane, 2010 WL 1696789, at *4. Specifically, the court noted that
Walker had recently purchased a Rolex, bank surveillance video showed her
wearing a watch and ring the morning of the murder, and when her body was
discovered both the watch and ring were missing. Id. The court also noted that
Petitioner had a motive to rob Walker as his bank account was overdrawn, his
cell phone had recently been deactivated due to overdue bills, and that
Petitioner had recently pawned certain goods. See id. Petitioner has not offered
any convincing suggestion of how his trial counsel might have raised doubt on
this issue.
      Petitioner attempts to overcome these deficiencies by arguing that he
should be excused from having to show the Strickland elements of deficient
performance and prejudice because his case falls within the narrow exception
recognized in United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the
Supreme Court stated that in circumstances that “are so likely to prejudice the
accused,” id. at 558, “a presumption of prejudice is appropriate without inquiry
into the actual conduct at trial,” id. at 660. Cronic, however, limited this
exception to the most serious of circumstances such as when there has been a
“complete denial of counsel” or where “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Id. at 659. This is a far
cry from Petitioner’s trial. Petitioner was represented by two attorneys who
conducted a thorough investigation, made informed strategic decisions about
his defense, and called numerous witnesses on his behalf. While this strategy
was ultimately unsuccessful, Petitioner’s disagreement with it now does not


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                                 No. 15-70007
render it deficient, let alone so deficient as to bring it under the exception in
Cronic.
      Because Petitioner has failed to raise a debatable question as to the
effectiveness of either his trial counsel or state habeas counsel, he has neither
shown that we should consider his unexhausted claim nor that reasonable
jurists could debate the merits of his underlying argument.
                             IV. CONCLUSION
      For the foregoing reasons, Petitioner’s application for a certificate of
appealability is denied.




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