    Case: 13-70037    Document: 00512679381     Page: 1   Date Filed: 06/27/2014




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

                                 No. 13-70037
                                                                         Fifth Circuit

                                                                       FILED
                                                                   June 27, 2014
                                                                   Lyle W. Cayce
                                                                        Clerk
RANDALL WAYNE MAYS,

                                           Petitioner–Appellant,

versus

WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                           Respondent–Appellee.




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




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Randall Mays was convicted of murder and sentenced to death. He seeks
a certificate of appealability (“COA”) to challenge the constitutionality of the
sentence. Because he has failed to make a substantial showing of the denial of
a constitutional right, we deny a COA.
     Case: 13-70037            Document: 00512679381        Page: 2     Date Filed: 06/27/2014



                                           No. 13-70037
                                                  I.
          In 2007, police officers responded to a “domestic violence−gunshot” call.
All of them were in uniform, wearing badges, and driving marked vehicles.
Although Mays was initially calm and courteous, he fled into his house and
barricaded himself when the officers began reading him his rights. He later
emerged holding a deer rifle. After the officers had failed several times to
convince Mays to put down the weapon and give himself up, he opened fire. He
shot Deputy Tony Ogburn and Officer Paul Habelt in the head, killing both,
and shot Deputy Kevin Harris in the leg.
          At the guilt phase of the trial, the defense produced evidence that Mays
suffered from paranoia and mental illness but was not insane. The jury found
Mays guilty of capital murder. During the sentencing phase, the prosecution
provided victim-impact evidence from Harris and from Ogburn’s widow and
son. The defense submitted mitigating evidence of Mays’s violent and abusive
childhood and testimony from psychiatrists that he suffered from depression
and a “psychotic disorder not otherwise specified,” which was possibly linked
to permanent brain damage from his chronic methamphetamine use. The jury
answered “yes” to the future dangerousness issue and “no” to the question of
mitigation; the court sentenced Mays to death.
          On direct appeal, the Texas Court of Criminal Appeals unanimously
affirmed the conviction and sentence. 1 In state habeas corpus proceedings, the
trial court, after a live evidentiary hearing, recommended denial of relief. The
Court of Criminal Appeals adopted the trial court’s findings of fact and conclu-
sions of law and denied relief. 2


          1   Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 1606
(2011).
         Ex parte Mays, No. WR-75105-01, 2011 WL 1196799 (Tex. Crim. App. Mar. 16, 2011)
          2

(per curiam), cert. denied, 132 S. Ct. 453 (2011).
                                                  2
     Case: 13-70037       Document: 00512679381          Page: 3     Date Filed: 06/27/2014



                                       No. 13-70037
       Mays filed a federal habeas petition raising nine issues. The magistrate
judge recommended the petition be denied on all grounds, and the district court
adopted the recommendation and denied the petition and a COA. Mays applies
for a COA on four grounds: (1) constitutionally ineffective assistance of counsel
(“IAC”) in failing to investigate mitigating evidence of severe mental illness;
(2) constitutionally IAC in failing to request a competency hearing; (3) IAC in
failing adequately to investigate and present evidence that he suffers from an
intellectual disability and is thus ineligible to receive the death penalty, and
the execution of Mays—as an individual with an intellectual disability—would
violate the Eighth Amendment as cruel and unusual punishment; and (4) viola-
tion of the Eighth Amendment’s proscription of cruel and unusual punishment
by imposing the death penalty on a defendant who is mentally ill. 3


                                              II.
       We may issue a COA only where a petitioner has made a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003). He “must show that reasonable jurists
could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Miller-El, 537 U.S. at 336 (internal quotation marks and
alteration omitted).
       In making this determination, we must look to the district court’s



       3  Although Mays frames this issue as “[w]hether the Eighth Amendment’s proscrip-
tion of cruel and unusual punishment prohibits imposition of [the] death penalty on a defen-
dant who is functionally equivalent to an individual with ‘intellectual disability,’ but cannot
be so diagnosed merely because the onset of this condition occurred after age 18,” he pre-
sented this ground for relief to the state habeas court as an issue of mental illness and argues
it as such on application to this court. Therefore, we will address this ground for relief as
argued.
                                               3
     Case: 13-70037        Document: 00512679381          Page: 4       Date Filed: 06/27/2014



                                        No. 13-70037
application of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) to the petitioner’s claims and “ask whether that resolution was
debatable amongst jurists of reason.” Id. This does not require a showing that
the appeal will succeed or a “full consideration of the factual or legal bases
adduced in support of the claims.” Id. at 336–37. Instead, the debatability of
AEDPA’s application to the underlying constitutional claims is determined
merely on “an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 336, 342.
       Under AEDPA, a federal court may not issue a writ of habeas corpus for
a state conviction unless the adjudication of the claim
    (1) resulted in a decision that was contrary to, or involved an unreason-
    able application of, clearly established Federal law, as determined by
    the Supreme Court of the United States; or

    (2) resulted in a decision that was based on an unreasonable determin-
    ation of the facts in light of the evidence presented in the State court
    proceedings.
28 U.S.C. § 2254(d). 4
    A state court’s decision is ‘contrary to’ clearly established federal law if
    (1) the state court ‘applies a rule that contradicts the governing law’
    announced in Supreme Court cases, or (2) the state court decides a case
    differently than the Supreme Court did on a set of materially indistin-
    guishable facts.[ 5]

“A state court’s application of clearly established federal law is ‘unreasonable’
within the meaning of AEDPA when the state court identifies the correct gov-
erning legal principle from Supreme Court precedent, but applies that




      4   See also Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
      5 Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell
v. Esparza, 540 U.S. 12, 15–16 (2003)).
                                               4
    Case: 13-70037         Document: 00512679381          Page: 5     Date Filed: 06/27/2014



                                        No. 13-70037
principle to the case in an objectively unreasonable manner.” 6                “It is settled
that a federal habeas court may overturn a state court’s application of federal
law only if it is so erroneous that ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with this Court’s precedents.’” 7
      When considering whether a decision is “based on an unreasonable
determination of the facts in light of the evidence,” AEDPA provides that the
“determination of a factual issue made by a State court shall be presumed to
be correct” unless the applicant carries “the burden of rebutting the presump-
tion of correctness by clear and convincing evidence.” 8 This presumption, how-
ever, applies not only to explicit findings of fact but “also . . . to those unar-
ticulated findings which are necessary to the state court’s conclusions of mixed
law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). “The
presumption is especially strong when the state habeas court and the trial
court are one in the same,” as here. Clark v. Johnson, 202 F.3d 760, 764 (5th
Cir. 2000).


                                              III.
      Mays presents two theories for relief regarding IAC. Because no reason-
able jurist can debate that the state habeas court did not unreasonably apply
controlling Supreme Court precedent in denying Mays’s IAC claims, we deny
a COA as to those grounds.
      Under Strickland v. Washington, 466 U.S. 668 (1984), a claim of IAC has
two components: “First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious that


      6   Id. (citing Wiggins v. Smith, 539 U.S. 510, 520 (2003)).
      7   Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (quoting Richter, 131 S. Ct. at 786).
      8   28 U.S.C. § 2254(e)(1); see also Nelson, 472 F.3d at 292.
                                                5
    Case: 13-70037     Document: 00512679381      Page: 6   Date Filed: 06/27/2014



                                  No. 13-70037
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687. The proper measure of the attorney’s perfor-
mance under this prong “remains simply reasonableness under prevailing pro-
fessional norms.” Id. at 688. A reviewing court, however, “must indulge a
strong presumption that counsel’s conduct falls within the wide range of rea-
sonable professional assistance” and that “under the circumstances, the chal-
lenged action might be considered sound trial strategy.” Id. at 689 (internal
quotation marks omitted).
      “Second, the defendant must show that the deficient performance preju-
diced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
at 687. In other words, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
      In addition, because we are reviewing the determinations of a state
habeas court, the deferential standard accorded to counsel’s representation
under Washington must be considered “in tandem” with the deference accorded
state court decisions under 28 U.S.C. § 2254(d). Richter, 131 S. Ct. at 788.
Because each standard alone is “highly deferential,” “when the two apply in
tandem, review is doubly so.” Id. (internal quotation marks omitted). Under
this double layer of discretion, “the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument
that counsel satisfied [Washington’s] deferential standard.” Id. “If the stan-
dard is difficult to meet, that is because it was meant to be.” Id. at 786.
      If the petitioner fails to satisfy either component, the IAC claim fails.
“[T]here is no reason for a court deciding an [IAC] claim to approach the inquiry
in the same order or even to address both components of the inquiry if the
                                        6
    Case: 13-70037      Document: 00512679381    Page: 7   Date Filed: 06/27/2014



                                  No. 13-70037
defendant makes an insufficient showing on one.” Washington, 466 U.S. at
697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be
followed.” Id.


                                        A.
        Mays claims his counsel were constitutionally ineffective during the sen-
tencing phase for failing to investigate the mitigating effects of his mental ill-
ness.    More specifically, he reasons, counsel failed timely to investigate
whether he had “organic brain damage” and therefore did not obtain the proper
neuropsychological examination. As a result, that mitigation evidence was not
produced at sentencing, arguably prejudicing Mays.
        Although Mays’s counsel did not discover the jail record reflecting
“organic brain damage” until after jury selection had commenced, once their
investigator related this information to them counsel immediately hired a psy-
chologist to pursue the lead. The state habeas court found that the psycholo-
gist and counsel made at least three attempts to conduct the necessary testing
on Mays but that they were unable to convince Mays to cooperate. Instead,
counsel introduced mitigating evidence in the form of expert testimony of
“chronic and severe psychiatric illness” and methamphetamine abuse that is
known to damage nerve cells and cause persisting psychosis. After sentencing,
state habeas counsel was able to secure Mays’s cooperation for the additional
examination, which indicated some organic brain damage.
        Even assuming that Mays’s counsel was constitutionally deficient, there
is a reasonable argument that Mays was not prejudiced. First, Mays has not
shown that if trial counsel had had more time for examination before the
sentencing phase, they would have successfully obtained Mays’s cooperation.
Although it is true that habeas counsel was able to elicit the needed
                                        7
     Case: 13-70037      Document: 00512679381         Page: 8    Date Filed: 06/27/2014



                                      No. 13-70037
cooperation after sentencing, Mays’s willingness to submit to examination
after having been sentenced to death provides little evidence of his potential
willingness to do so before trial. Because it is reasonable to conclude that Mays
would have declined to cooperate before trial as he thrice declined after trial
began, he failed to show prejudice under Washington or Richter.
       Second, even if earlier investigation into this “lead” had resulted in coop-
eration, examination, and the presentation of this evidence during the sentenc-
ing phase, Mays has failed to show a reasonable probability that, barring such
hypothetical error, the result of the proceeding would have been different. 9
The state court found that the testimony provided by the additional
examination was largely cumulative of the evidence of mental illness actually
presented at trial; it added little or no weight to the mitigating evidence
presented. Mays has not shown that decision to be based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings as required by 28 U.S.C. § 2254(d)(2) and, as a result, he has failed
to show an unreasonable application of Washington under § 2254(d)(1).
       There can be no dispute among reasonable jurists regarding prejudice.
There is no need to consider whether counsel was constitutionally deficient,
and the COA is denied as to this ground.


                                            B.
       Mays claims counsel were constitutionally ineffective for failing to



       9 Mays points to Rompilla v. Beard, 545 U.S. 374, 392 (2003), and Littlejohn v. Tram-
mell, 704 F.3d 817, 864 (10th Cir. 2013). Rompilla is inapposite because although counsel
failed to present evidence of organic brain damage, they did not present any evidence of
mental illness. Here, counsel provided evidence of mental illness but not organic brain dam-
age. Likewise, Littlejohn has no bearing on this case because it is not a decision of the
Supreme Court and, as a result, is not considered under § 2254 review. See 28 U.S.C.
§ 2254(d)(1).
                                             8
    Case: 13-70037         Document: 00512679381         Page: 9     Date Filed: 06/27/2014



                                        No. 13-70037
request a competency hearing. Assuming that this was constitutional IAC,
again Mays cannot establish prejudice. As the state court—which served as
both state trial and habeas court—found, Mays presented no evidence that he
was actually incompetent to stand trial: No testimony was introduced at the
live evidentiary hearing that he was incompetent. Even the psychiatrist who
testified regarding Mays’s organic brain chemistry did not testify as to his
incompetency.
      Instead, Mays merely points to the evidence presented regarding his
mental illness to suggest incompetency during trial. Without more, however,
such evidence says nothing about whether Mays had “sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding
—and whether he has a rational as well as factual understanding of the pro-
ceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per
curiam). The two are not coextensive: A defendant can be both mentally ill
and competent to stand trial.
      As a result, Mays failed to establish that the state court decision was
based on an unreasonable determination of the facts in light of the evidence
presented in the state proceedings or that its decision was an unreasonable
application of Washington under § 2254(d). Without this, Mays also has not
shown that there is a reasonable probability that, but for counsel’s failure to
seek an incompetency hearing, the result of the proceeding would have been
different and Mays would have been found incompetent to stand trial. 10 He
cannot establish that reasonable jurists could debate this conclusion by the
state court.      Because Mays has not shown prejudice, there is no need to
consider whether counsel was constitutionally deficient, and the COA is denied
as to this ground.


      10   Washington, 466 U.S. at 694; Felde v. Butler, 817 F.2d 281, 282–83 (5th Cir. 1987).
                                               9
    Case: 13-70037       Document: 00512679381          Page: 10     Date Filed: 06/27/2014



                                       No. 13-70037
                                             IV.
       Mays initially sought habeas relief contending that his execution, “as an
individual with an intellectual disability, would violate the Eighth Amend-
ment’s prohibition against cruel and unusual punishment.” Because this claim
was unexhausted, however, Mays reframed it in supplemental pleadings to
include a claim of IAC by habeas counsel and claimed cause and prejudice for
his procedural default under Trevino v. Thaler, 133 S. Ct. 1911 (2013). None-
theless, the district court found that he did not satisfy the cause-and-prejudice
standard and that this ground was procedurally defaulted.
       Because the court denied relief on procedural grounds, we issue a COA
only if the petitioner shows
    that jurists of reason would find it debatable whether the petition states
    a valid claim of the denial of a constitutional right and that jurists of
    reason would find it debatable whether the district court was correct in
    its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Section 2253 mandates that both
showings be made before the court of appeals may entertain the appeal . . . ,
and a court may find that it can dispose of the application in a fair and prompt
manner if it proceeds first to resolve the issue whose answer is more apparent
from the record and arguments.” Id. at 485. Because a reasonable jurist could
not find the merits of Mays’s constitutional claim debatable, 11 we deny a COA
on this ground.
       Mays contends that the test established for mental retardation 12 in


       11Because the state court did not address these issues on the merits, we review Mays’s
constitutional claims de novo and not through the prism of AEDPA deference. See Cone v.
Bell, 556 U.S. 449, 472 (2009) (holding that if the state court does not reach the merits of a
claim, the claim is reviewed de novo).
       12We use the terms “mental retardation” and “intellectual disability” interchangeably
as “identical phenomen[a].” Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). The seminal case
prohibiting execution of the mentally retarded uses that term exclusively. See Atkins v.
                                             10
     Case: 13-70037             Document: 00512679381          Page: 11     Date Filed: 06/27/2014



                                              No. 13-70037
Ex parte Briseno, 135 S.W.3d 1, 5−9 (Tex. Crim. App. 2004), is unconstitutional
and that under the proper, constitutional definition he is mentally retarded.
In Briseno, Texas adopted the three-pronged definition of the American Asso-
ciation on Mental Retardation (“AAMR”): (1) significantly subaverage general
intellectual functioning; (2) accompanied by related limitations in adaptive
functioning; (3) the onset of which occurs before age eighteen. Id. at 7. But,
recognizing that the adaptive-behavior element is highly subjective, the court
introduced seven “evidentiary factors”—commonly referred to as Briseno
factors—for factfinders to consider in their determination of mental retarda-
tion. Id. at 8–9.
           Mays posits that the application of these non-AAMR characteristics is
an unconstitutional application of Atkins. Although we have upheld the use
of the Briseno factors as a reasonable application of Atkins, 13 Mays maintains
that Hall casts doubt on the constitutionality of their continued use. We
roundly disagree.
           Contrary to Mays’s assertions, Hall does not address the constitution-
ality of considering additional “non-diagnostic” factors in deciding mental
retardation, nor does it require a wholesale adoption, without deviation, of
AAMR or other professional standards and definitions. Instead, it exclusively
addresses the constitutionality of mandatory, strict IQ test cutoffs. 14
           In finding such mandatory cutoffs unconstitutional, the Court focused
largely on the prohibition of sentencing courts’ considering even substantial,
additional evidence of retardation—including poor adaptive functioning—for




Virginia, 536 U.S. 304 (2002).
           13   See Chester v. Thaler, 666 F.3d 340, 345–48 (5th Cir. 2011).
           14   Hall, 134 S. Ct. at 1994 (“That strict IQ test score cutoff of 70 is the issue in this
case.”).
                                                    11
    Case: 13-70037          Document: 00512679381       Page: 12     Date Filed: 06/27/2014



                                       No. 13-70037
defendants who do not have an IQ score below 70. 15 Because this cutoff did not
take into account the well-known imprecision of IQ testing, the Court was wary
of any blanket restriction on a defendant’s ability to present further evidence
of his disability. 16 The Court therefore held that sentencing courts must take
into account IQ tests’ standard error of measurement (“SEM”) when assessing
mental retardation. 17
       Hall therefore in no way affects this court’s reading and application of
Briseno, and we so hold. First, Hall does not implicate Texas. Although the
Court listed the states that could be affected by its ruling, 18 the word “Texas”
nowhere appears in the opinion, and the reason is obvious: Texas has never
adopted the bright-line cutoff at issue in Hall. See, e.g., Hearn v. Thaler, 669
F.3d 265, 268–70 (5th Cir. 2012).
       Second, no reasonable jurist could theorize that the reasoning animating
Hall could possibly be extended to Briseno. The cutoff at issue in Hall was
problematic largely because it restricted the evidence—especially regarding



       15   See id. at 1994, 2001.
       16 See id. at 2000–01 (“By failing to take into account the standard error of measure-
ment, Florida’s law not only contradicts the test’s own design but also bars an essential part
of a sentencing court’s inquiry into adaptive functioning. Freddie Lee Hall may or may not
be intellectually disabled, but the law requires that he have the opportunity to present evi-
dence of his intellectual disability, including deficits in adaptive functioning over his
lifetime.”).
       17 See id. at 2001. The consideration of SEM as discussed by the Supreme Court,
however, is not a one-way ratchet. The imprecision of IQ testing not only provides that IQ
scores above 70 but within the SEM do not conclusively establish a lack of significantly sub-
average general intellectual functioning, but also that IQ scores below 70 but within the SEM
do not conclusively establish the opposite. In other words, a sentencing court may find a
defendant to have failed to meet the first prong of the AAMR’s definition of intellectual dis-
ability even if his IQ score is below 70 so long as 70 is within the margin of error and other
evidence presented provides sufficient evidence of his intellectual functioning.
       18 See id. at 1996–97 (listing only Florida, Kentucky, Virginia, Alabama, Arizona, Del-
aware, Kansas, North Carolina, and Washington). “Thus, at most nine States mandate a
strict IQ score cutoff at 70.” Id. at 1997.
                                             12
    Case: 13-70037            Document: 00512679381       Page: 13     Date Filed: 06/27/2014



                                         No. 13-70037
adaptive functioning—that could be presented to establish intellectual disabil-
ity. There is no similar restriction of evidence under Briseno. To the contrary,
the Briseno factors merely provide further guidance to sentencing courts as to
what kinds of evidence the court might consider when determining adaptive
functioning.
       In other words, Hall did nothing to overturn or question Atkins: Even
after Hall, states retain “the task of developing appropriate ways to enforce
the constitutional restriction upon their execution of sentences” 19 and also
retain “a critical role in advancing protections and providing the Court with
information that contributes to an understanding of how intellectual disability
should be measured and assessed.” 20 Hall merely states that that discretion
is not “unfettered”: States cannot contravene the Court’s discussion of mental
retardation in Atkins. 21
       Unlike the cutoff at issue in Hall, the Briseno factors do not conflict with
Atkins. Although the Atkins Court cited definitions of mental retardation that
expressly rejected the cutoff at issue in Hall, 22 Atkins says nothing about what
kind of evidence should be considered when determining whether a defendant’s
significantly subaverage general intellectual functioning meaningfully limits
his adaptive functioning. 23 That question has been left explicitly to the states,
and the definition adopted by Texas in Briseno, including the Briseno factors,
in no way departs from any of the Court’s pronouncements.
       Therefore, because Mays has made no attempt to present any evidence


       19   Id. at 1998 (citing Atkins, 536 U.S. at 317) (internal quotation marks and alteration
omitted).
       20   Id.
       21   Id. at 1998–99.
       22   See id.
       23   See Atkins, 536 U.S. at 308 n.3, 318.
                                                13
    Case: 13-70037          Document: 00512679381         Page: 14     Date Filed: 06/27/2014



                                         No. 13-70037
of limited adaptive functioning under Briseno, he has failed to provide evidence
of mental retardation under Texas law and, as a result, has failed to show pre-
judice in urging his IAC claim. The motion for a COA is denied as to that
ground.


                                                V.
       Mays seeks a COA on the ground that the Eighth Amendment prohibits
his execution because he is mentally ill. 24 Fifth Circuit precedent, however,
forecloses that. In Neville, 440 F.3d at 221, we denied habeas relief, holding
that neither Atkins nor Roper v. Simmons, 543 U.S. 551 (2005), created a rule
of constitutional law making the execution of mentally ill persons unconstitu-
tional. 25 Mays points to no subsequent Supreme Court decision announcing
such a rule. Therefore, Mays has failed to show the state court’s decision to be
“contrary to, or involv[ing] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 26 As
a result, the request for a COA is denied as to this ground.
       The application for a COA is in all respects DENIED.




       24 Although the Supreme Court held that the Eighth Amendment prohibits the execu-
tion of the insane, Mays does not assert that he is insane but only mentally ill. See Ford v.
Wainwright, 477 U.S. 399, 410 (1986); see also ShisInday v. Quarterman, 511 F.3d 514, 521
(5th Cir. 2007) (per curiam); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (per curiam).
       25   See also ShisInday, 511 F.3d at 521.
       26   28 U.S.C. § 2254(d)(1); see also Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003).
                                               14
