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

                                                 FILED
                                                                            March 1, 2011

                                       No. 10-70012                         Lyle W. Cayce
                                                                                 Clerk

ROBERT LEE WOODARD

                                                   Petitioner - Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                                   Respondent - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CV-2036


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Petitioner Robert Lee Woodard was convicted of murdering Achamma and
Thankachen Mathai in Texas and sentenced to death. He now seeks a certificate
of appealability (“COA”) from the district court’s denial of habeas corpus relief.
Because Woodard has failed to make a substantial showing of a denial of a
constitutional right or to otherwise meet the qualifications for his application,
we deny his application for COA.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                       FACTS AND PROCEEDINGS
      After being convicted by jury of capital murder, Woodard was sentenced
to death. The Texas Court of Criminal Appeals provided the following detailed
description of the murders:
      The Mathais owned and operated a convenience store in Houston.
      On the night of February 12, 2000, Thankachen was working at the
      store, and Achamma had brought him dinner. Between 10 and 11
      p.m., Cory Calloway bought gasoline from the store’s pumps for his
      1989 Lincoln. Leaving the engine running at the gas pumps,
      Calloway went to a pay telephone at the side of the building.

      While Calloway talked on the phone, Garvina Sadiki came in the
      store to buy merchandise. As Sadiki paid for her items, a man
      dressed in a hooded jacket entered the store with a gun in his hand.
      The man fired a shot and said, “This is a robbery. Don’t anybody
      move.”

      The robber ran behind the counter where Thankachen and
      Achamma stood, and ordered Thankachen to open the register. He
      ordered Sadiki not to look at him, and she obeyed. When
      Thankachen could not get the register open, the robber shot him.
      The man then ordered Achamma to open the register and
      threatened to shoot Thankachen again if she did not. Achamma
      cried and screamed, begging the man not to hurt them. As she
      fumbled with the register, the man pointed the gun toward
      Thankachen and fired another shot.

      Hearing police sirens, the robber cursed and ran from behind the
      counter to the front door only to discover that it had been locked.
      The man screamed for Achamma to open the door. Sadiki heard the
      lock open, and she saw the man push open the door. Then the robber
      returned to the counter where Achamma and Sadiki were standing.
      He backed up to Sadiki, keeping his face hidden, and demanded her
      keys. Sadiki handed the man her keys. The man said to Achamma,
      “Bitch,” and he shot her in the head. He then ran out the front door.
      Outside the store, Calloway was still talking on the telephone. He
      heard the gunshots and then “a loud bust through the door.” He
      looked up and saw a person wearing a hooded sweater run toward

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                                  No. 10-70012

      his Lincoln. Calloway ran toward the man, who pointed a gun at
      him. Calloway retreated to safety, and the man drove away in
      Calloway’s Lincoln. Calloway went in the store and called for help.

      Police officers arrived quickly. Achamma was already dead.
      Thankachen died shortly after being taken to a hospital.

Woodard v. State, No. 74,080, 2005 WL 77143, at *1 (Tex. Crim. App. Oct. 20,
2004).
      The Court of Criminal Appeals affirmed both Woodard’s conviction and
sentence on direct appeal, id., and in state habeas corpus proceedings, Ex parte
Woodard, No. WR-46, 501–02 (Tex. Crim. App. June 27, 2007). Woodard then
timely filed an application for federal habeas corpus relief pursuant to 28 U.S.C.
§ 2254 and sought an evidentiary hearing. The district court granted
Respondent’s motion for summary judgment, denied Woodard’s motion for an
evidentiary hearing, and denied Woodard’s petition in its entirety. The district
court also declined to issue a COA. Woodard now seeks a COA from this court,
raising three issues.
                          STANDARD OF REVIEW
      Woodard’s petition was filed after the effective date of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) and his application is therefore
subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA
imposes a “highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be given the benefit of the doubt.” Renico v.
Lett, 130 S. Ct. 1855, 1862 (2010) (quotations omitted). Under the AEDPA, a
petitioner must obtain a COA as jurisdictional prerequisite before appealing a
district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). “The COA statute establishes procedural
rules and requires a threshold inquiry into whether the circuit court may
entertain an appeal.” Miller-El, 537 U.S. at 336 (quotations omitted). A COA will


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be granted only if the petitioner makes “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a
petitioner “must demonstrate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed further.” Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation omitted). “Any doubt regarding
whether to grant a COA is resolved in favor of the petitioner, and the severity
of the penalty may be considered in making this determination.” ShisInday v.
Quarterman, 511 F.3d 514, 521 (5th Cir. 2007). The analysis “requires an
overview of the claims in the habeas petition and a general assessment of their
merits.” Miller-El, 537 U.S. at 336. “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims.” Id.
Rather, “‘[t]he petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.’”
Id. at 338.
                                 DISCUSSION
      I.      Claim One: Pretrial Eyewitness Identification
      Woodard contends that the procedures related to eyewitness Cory
Calloway’s identification of him were impermissibly suggestive and unreliable.
The trial court received argument at a pretrial suppression hearing and
concluded that the procedures were not impermissibly suggestive nor a violation
of Woodard’s rights. Alternatively, the trial court found that “in the event a
higher court might find those procedures to be suggestive, that relying upon the
factors enunciated in [Neil v. Biggers, 409 U.S. 188 (1972)] . . . the Court finds
that there is no substantial likelihood of misidentification.”
      As described by the district court:
      Mr. Calloway identified Woodard three times, two of which resulted
      in strongly positive identifications and the other resulted in an


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      affirmative, but tentative, identification. At some point Mr.
      Calloway viewed a photo array containing Woodard’s picture, but he
      could not identify Woodard as the robber. On February 18, 2000, the
      police arranged a live lineup that included Woodard. Mr. Calloway
      “strongly agreed” that Woodard was the robber, but qualified that
      he wanted to see the suspects wearing a hood. The police could not
      at the time of the live lineup find similar clothing. On April 24,
      2000, however, the police arranged for a photo array in which they
      had superimposed a hood over each picture. Mr. Calloway identified
      Woodard in an array that apparently contained the same
      photographs as the initial photo array. Finally, at trial Woodard
      donned a hooded jacket in the courtroom and Mr. Calloway
      positively identified him.

Woodard v. Thaler, 702 F. Supp. 2d 738, 760 (S.D. Tex. 2010) (footnote omitted).
      “[A] conviction based on an eyewitness identification at trial following a
pretrial identification by photograph will be set aside only if the identification
procedure was so impermissibly suggestive as to give rise to a substantial
likelihood of misidentification.” Herrera v. Collins, 904 F.2d 944, 946 (5th Cir.
1990) (citing Simmons v. United States, 390 U.S. 377 (1968)). A two-step process
governs the admissibility of identification evidence: First, a court must
determine whether the pretrial identification was impermissibly suggestive. If
it was, then second, a court must determine whether, “under the totality of the
circumstances, the suggestiveness leads to a substantial likelihood of irreparable
misidentification.” Id. This analysis is a mixed question of law and fact.
Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997). “[Woodard] cannot
prevail in federal habeas unless he shows that the state court acted contrary to
or unreasonably applied Supreme Court precedent in finding that the line-up
was not impermissibly suggestive and that, even if it were, it did not taint
[Calloway’s] identification of [Woodard].” Coleman v. Quarterman, 456 F.3d 537,
544 (5th Cir. 2006).




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      As to the first prong, Woodard argues that the pretrial identification
procedures were impermissibly suggestive on three grounds: (1) Calloway was
shown a photo spread containing a picture of Woodard prior to the live lineup,
and Woodard was the only individual in both the photo spread and the lineup;
(2) there was disparity among the individuals in the lineup and the individuals
in the photo spread; and (3) the police had Calloway identify objects recovered
from his stolen vehicle prior to identifying Woodard, implying that the police had
apprehended the person who stole his vehicle. This district court found that the
Texas “Court of Criminal Appeals considered the totality of the circumstances
and found that the identification process was not unduly suggestive.” Woodard,
702 F. Supp. 2d at 761–62. After reviewing the relevant Supreme Court case
law, the district court concluded “[t]he differences in this case are minor when
compared to those in which the Supreme Court has questioned the integrity of
the lineup process.” Id. We need not consider the merits of Woodard’s
arguments, however, because assuming, without deciding, that the pretrial
identification procedures were impermissibly suggestive, Woodard has failed to
demonstrate that “under the totality of the circumstances, the suggestiveness
leads to a substantial likelihood of irreparable misidentification.” Id. (quotation
omitted).
      “The Supreme Court has identified several factors to help determine the
likelihood of misidentification: (1) the opportunity of the witness to view the
criminal at the crime scene; (2) the witness’s degree of attention; (3) the accuracy
of the witness’s prior description of the criminal; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the length of time
between the crime and the confrontation.” Id. at 544 (citing Neil v. Biggers, 409
U.S. 188, 199–200 (1972)).




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        Calloway, who was vigorously cross-examined 1 at both the motion to
suppress hearing and again at trial, testified that he had a clear view of the
robber’s face from fifteen to twenty feet away for approximately twenty to thirty
seconds. He saw Woodard twice: first when Woodard pointed a gun at him before
taking his car, and then again when Woodard drove his car away, stating “[w]e
both were looking at each other, eye contact, just, you know.” The parking lot
where Calloway first saw Woodard was well-lighted. As to the first time he saw
Woodard, Calloway testified that his attention was focused on his car, which was
left running at a gas pump, because of his concern that someone would steal it.
Calloway’s second observation came when he was chasing Woodard, “try[ing] to
promote some attention to get, you know, people to notice [what] was going on.”
Calloway made an accurate, albeit general, description of the robber to the police
at the scene. Although he only made a “strong tentative” identification of
Woodard at the lineup, Calloway expressed no uncertainty during either his
identification of Woodard in the modified photo array or at trial. The “strong
tentative” identification of Woodard at the live lineup was made six days after
the crime. See Coleman, 456 F.3d at 544 (allowing identification under this
prong nine days after initial viewing of defendant). All five Biggers factors
support a conclusion that there was no likelihood of misidentification in this
case.
        The district court concluded that “Woodard has not shown that the state
courts were unreasonable in denying his federal constitutional challenge to the
identification.” Woodard, 702 F. Supp. 2d at 763. We agree that “Woodard has
not shown that the circumstances [surrounding Calloway’s eyewitness
identification] irreparably led to a high probability of misidentification.” Id. at




        1
        Cross-examination “exposes to the jury the method’s potential for error” and
“substantially lessen[s]” the risk of misidentification. Simmons, 390 U.S. at 384.

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762 n.22. Reasonable jurists could not debate the district court’s determination.
Accordingly, Woodard is not entitled to a COA on this issue.
II.    Claim Two: Ineffective Assistance of Counsel for Failure to Use an
       Eyewitness Identification Expert

       Woodard next asserts that his trial counsel were ineffective for failing to
investigate the possibility of retaining and failing to employ an eyewitness
identification expert at trial. To prove ineffective assistance of counsel, Woodard
must show that both (1) his counsel’s performance was deficient and (2) that the
deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). Under Strickland’s first, or “performance,” prong, “a petitioner
must demonstrate that counsel’s representation fell below an objective standard
of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quotations
omitted). Counsel “is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Strickland’s second, or “prejudice,”
prong requires Woodard to show “a reasonable probability that, but for the
deficient performance of his trial counsel, the outcome of his capital murder trial
would have been different.” Gray v. Epps, 616 F.3d 436, 440 (5th Cir. 2010)
(citing Strickland, 466 U.S. at 694). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S at 669.
“To evaluate whether counsel’s alleged errors prejudiced the defense, [Woodard]
must demonstrate that counsel’s deficient performance renders the result of the
trial ‘unreliable or the proceeding fundamentally unfair.’” Yohey v. Collins, 985
F.2d 222, 228 (5th Cir. 1993) (citing Lockhart v. Fretwell, 506 U.S. 364, 372
(1993)). “[E]ither prong of the Strickland inquiry may be evaluated first as both
are necessary to make out a showing of ineffective assistance.” Conner v.
Quarterman, 477 F.3d 287, 294 (5th Cir. 2007). “If [Woodard] fails to show
prejudice, the alleged deficiencies in his counsel’s performance need not be

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considered.” Id. An error is prejudicial if it “‘had substantial and injurious effect
or influence in determining the jury’s verdict.’” Paredes v. Thaler, 617 F.3d 315,
319 (5th Cir. 2010) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
      Woodard claims that if his attorney had employed an expert to challenge
Calloway’s eyewitness identification, there is a reasonable probability that at
least one juror would have struck a different balance. The court has addressed
this argument before. In Cantu v. Collins, a habeas petitioner argued that his
“trial counsel erred during the guilt-innocence phase of the trial by failing to
secure the services of an expert witness to contest the testimony of [an]
eyewitness.” 967 F.2d 1006, 1016 (5th Cir. 1992). Although we recognized that
the “petitioner is correct that the admission of expert testimony regarding
eyewitness identifications is proper,” we rejected his argument as “specious.” Id.
Woodard acknowledges Cantu, but seizes upon Strickland’s instruction that
“[t]he proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.” 466 U.S. at 688. He argues that
“prevailing professional norms” have materially changed in the fifteen years
between the petitioner in Cantu’s trial and his own trial. In Woodard’s view,
these changes warrant a different result than in Cantu. We disagree.
      As in Cantu, Woodard “cites no authority to support the theory that his
trial counsel was required to call an expert witness to challenge [Calloway’s]
testimony.” 967 F.2d at 1016 (emphasis in original). Moreover, the state habeas
court found:
      based upon the credible affidavits of counsel Loper and Muldrow,
      that counsel discussed the possibility of employing an expert to
      testify about the reliability of eyewitness testimony; that counsel
      ultimately made the reasonable strategic decision not to use such an
      expert because it would not be the best use of defense resources
      because the combined effect of the testimony of Reginald Willis,
      Caspar Hines, and Kenneth Moore outweighed the benefit, if any,
      of using an eyewitness expert.


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Furthermore, the court also found:

      based upon the appellate record and the credible affidavits of trial
      counsel, that trial counsel made a plausible, reasonable trial
      decision to attack identification through a pre-trial motion to
      suppress, vigorous cross-examination at trial, and jury argument.

The state habeas court concluded that “[t]rial counsel are not ineffective for
making the reasonable, plausible trial decision to attempt to attack
identification through testimony from an ‘eyewitness expert.’” See also Cantu,
967 F.2d at 1016 (“Cantu’s trial counsel testified at the evidentiary hearing that
he considered seeking the services of an expert witness on the issue of
eye-witness identification but decided against it based on his belief that his
cross-examination of [the eyewitness] would be sufficient to refute the accuracy
of the identification.”). Woodard’s counsel’s “representation [did not fall] below
an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Woodard
has not made a showing that this issue “is debatable among jurists of reason;
that a court could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed further.” Barefoot,
463 U.S. at 893 n.4. Accordingly, he is not entitled to a COA on this issue.
      Woodard’s claim also fails the second prong of the Strickland test.
Woodard relies heavily upon Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007).
In that case, a Michigan jury convicted the petitioner of, inter alia, armed
robbery. Id. at 470. “The entirety of the evidence against Ferensic was based upon
eyewitness identifications made by the victimized couple.” Id. (emphasis added)
(“The district court emphasized that ‘no physical evidence linked Petitioner to
the crimes’ and that, instead, the entirety of the state’s case against him was
based on multiple eyewitness identifications.”). Defense counsel promised the
jury that an eyewitness identification expert would testify on his client’s behalf,
but the Michigan trial court excluded the testimony of the expert due to a


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violation of a discovery order.2 Id. at 471. The trial court refused to instruct the
jury that the expert was not permitted to testify. Id. at 478. The jurors “were
unable to agree on a verdict at one point during their deliberations, [and] sent
a note to the trial judge stating that ‘we would like to see the police report,’ and
asked ‘what are our options if we don’t totally agree on a verdict?’” Id. at 483.
The Sixth Circuit affirmed the district court’s grant of habeas relief to Ferensic,
holding that it was “in grave doubt as to whether the exclusion of [the robbery
eyewitness] and especially [the expert] had a substantial and injurious effect or
influence on the outcome of Ferensic’s trial.” Id. at 481. (quotations omitted).
       In the first instance, Ferensic recognized that the scenario presented in
this case, “the failure to retain an expert as an initial matter[,]presents a
somewhat different problem than the [scenario presented in Ferensic,] exclusion
of an already retained expert.” Ferensic, 501 F.3d at 484. The Sixth Circuit
acknowledged it had previously declined to find prejudice under Strickland in
situations such as the one presented here. See Dorch v. Smith, 105 F. App’x 650,
653 (6th Cir. 2004) (upholding as reasonable the Michigan Court of Appeals’s
conclusion that defense counsel’s failure to call an expert witness on eyewitness
identification did not satisfy Strickland because counsel “presented several
witnesses who testified as to [the habeas petitioner’s] whereabouts on the
weekend of the incident” and cross-examined the eyewitness regarding
inconsistencies in his identification of the petitioner); Tipton v. United States,
No. 96-5026, 1996 U.S. App. LEXIS 25466, at *1–2 (6th Cir. Sept. 26, 1996)
(holding that “any allegedly ineffective assistance” caused by counsel’s failure to




       2
        The Michigan trial court also excluded the testimony of a witness to the robbery who
would have provided testimony favorable to the defense. Ferensic, 501 F.3d at 471. At defense
counsel’s direction, the witness was due to arrive at the courthouse to testify at 11:00 am, but
the other (and lone) defense witness finished testifying at 10:25 am. Id. at 479. The trial court
denied Ferensic’s motion for a brief adjournment and excluded the testimony. Id. at 480.

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“hir[e] an expert in eyewitness identification” did not prejudice the petitioner
within the meaning of Strickland).
      Next, we have no such “grave doubt” as to whether the failure of
Woodard’s trial counsel to investigate and employ an eyewitness identification
expert had a substantial and injurious effect on the jury’s verdict. See Paredes,
617 F.3d at 319. Unlike in Ferensic, Calloway’s identification of Woodard was not
the “entirety of the evidence” against him. See Ferensic, 501 F.3d at 470. Indeed,
although the jury did request to see several items, including the notes of the
officer who took Calloway’s statement at the scene and the composite sketch and
photo exhibits of both Woodard and Reginald Willis, the evidence against
Woodard was overwhelming. As noted by the district court:
      Circumstantial evidence and incriminatory testimony otherwise
      confirmed Woodard’s guilt. A Crime Stoppers tip led to a police
      investigation which turned up evidence pointing to Woodard as the
      murderer. The police found Mr. Calloway’s Lincoln at the apartment
      complex where Woodard’s brother Reginald Willis lived. The police
      searched Mr. Willis’ apartment and found items stolen from Mr.
      Calloway. The police linked Woodard to the robbery/murder through
      interviews with Woodard’s friends and family members.

      For example, Mr. Willis’ girlfriend Caspar Hines told the police that
      around the time of the murders Woodard showed up at their
      apartment wearing black gloves and knocking on the door loudly.
      Woodard carried items taken from Mr. Calloway’s car into her
      apartment. Woodard tried to give her a gun that was “hot.”

      Woodard’s friend Dan Webster also saw him soon after the murders.
      Woodard had been driving a Lincoln like that stolen from Mr.
      Calloway and possessed items that had been in Mr. Calloway’s car.
      Woodard told Mr. Webster that he had robbed a store and fired
      shots because a woman would not open the cash register. Woodard
      said that he thought that he had killed the woman. Woodard said
      that he stole the car immediately afterwards. Woodard also
      confessed that “he had messed up, and he hope God forgive him.”




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      Mr. Webster explained that Woodard carried many lottery tickets
      which he stole during the robbery. Woodard, Mr. Webster, and Mr.
      Willis scratched off the tickets. Mr. Webster later took several
      tickets to stores for redemption. Store clerks later identified
      Woodard as also having turned in some of the stolen lottery tickets.

      Woodard told his brother that he robbed the store, fired his gun, and
      stole Mr. Calloway’s car. Mr. Willis saw Woodard with several
      stolen items. Mr. Willis told the police how Woodard had disposed
      of the murder weapon. A man performing cleanup for community
      service later found parts of a gun similar to that used in the murder
      in the same location where Woodard got rid of the weapon.


Woodard, 702 F. Supp. 2d at 744. Far from being the “entirety of the evidence
against” Woodard, Calloway’s identification was merely one piece of a
comprehensive suite of evidence pointing to his guilt. Furthermore, Calloway did
not identify Woodard as the shooter—he did not see the shooting. Calloway’s
testimony was offered as circumstantial evidence placing Woodard at the scene
of the murder with the murder weapon. In his own affidavit3 before the state
habeas court, Woodard admits that he “decided to steal [Calloway’s] vehicle” and
that “[w]hen I got into the vehicle I discovered a gun under the seat and some
lottery tickets.” He also admits that he “destroyed the gun, took it apart.”
      The state court’s decision was not unreasonable because Woodard cannot
show prejudice under Strickland. Woodard has done nothing to lessen the
impact of the other evidence against him. Despite any doubt about Calloway’s
eyewitness identification that the expert testimony might have potentially
created, the comprehensive additional evidence presented by the prosecution
prevents Woodard from being able to establish prejudice, even assuming
arguendo that his counsel’s performance was deficient. See Conner, 477 F.3d at




      3
          Woodard’s affidavit does not admit guilt to the murders.

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294. Reasonable jurists could not debate this issue. For this alternative reason,
Woodard is not entitled to a COA.
III.    Claim Three: Ineffective Assistance of Counsel for Failure to
        Adequately Prepare Mental Health Expert

        Woodard next asserts that his trial counsel were ineffective for failing to
prepare the psychologist retained by the defense to testify in the punishment
phase of Woodard’s trial. He alleges that, because of this failure, Dr. Shirley
Gruen, the aforementioned psychologist, testified in a manner that was
detrimental to him. Specifically, Woodard contends that Gruen’s testimony was
harmful to him because 1) although she did not make a clinical diagnosis of
Woodard, she volunteered on cross-examination that “[i]f you want the closest
to what [diagnosis] I would make I would say something like borderline
personality or systemic personality”; and 2) after being asked by the prosecutor
if Woodard fit the DSM-IV criteria for “anti-social behavior disorder,” she
responded “[y]es, I agree with you.” He asserts that his trial counsel failed to
adequately prepare Gruen for cross-examination, rendering their assistance
constitutionally defective. The question before us is whether the state habeas
court was unreasonable in concluding that Woodard did not suffer from
ineffective assistance of counsel.
        The essence of Woodard’s complaint is that his counsel did not give Dr.
Gruen adequate time to examine him and, as a result, she was unprepared for
the questions posed on cross-examination. Succinctly summarized by the district
court, “Woodard does not claim that trial counsel should have presented a
defense based on mental illness or defect. Woodard’s claim is that, when hiring
a mental-health expert to testify on future danger and recidivism, trial counsel
should have anticipated that the State would portray him as a sociopath.”
Woodard, 702 F. Supp. 2d at 775. In support, Woodard relies upon affidavits
submitted to the state habeas court by Dr. Gruen and Dr. Paula Lundberg-Love,


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                                  No. 10-70012
a psychologist who interviewed him in 2003. Both affidavits rely on the premise
that Dr. Gruen was inadequately prepared to testify due to counsel’s failure to
provide adequate time to examine Woodard. Dr. Gruen averred that “if I had
been notified in a timely manner regarding the need for my services in this
matter, I would have been better prepared to testify in this case . . . by
performing the necessary psychological tests. . . . These tests would have
provided me with objective data, resulting in my testimony being more detailed,
more specific, and may have possibly indicated different diagnostic conclusions.”
Dr. Lundberg-Love, who reviewed the same records as Dr. Gruen, opined that
“it was highly likely that such time constraints may have compromised Dr.
Gruen’s opportunity to evaluate [Woodard] thoroughly,” and stated that “had an
expert such as myself been given a greater time frame, in which to interview Mr.
Woodard and perform objective testing, . . . different diagnostic conclusions
would have been formulated.”
      In affidavits before the state habeas court, Woodard’s trial counsel
explained that “[i]t was [counsel’s] strategic decision to present the defendant as
a person who was not deserving of death, but rather someone who had made bad
decisions due to terrible circumstances earlier in life and someone who would do
well in the structured environment of prison (rather than death).” Trial counsel’s
“purpose in retaining Dr. Gruen was to present someone who would do well in
a structured environment, thereby reinforcing our argument for a life sentence
rather than death.” The state habeas court found that, in addition to Dr. Gruen’s
testimony, trial counsel “elicit[ed] testimony from eight additional punishment
witnesses concerning [Woodard’s] troubled childhood, his ability to do well in a
structured environment and his good behavior in jail.” Although the state habeas
court acknowledged that portions of Dr. Gruen’s testimony were detrimental, it
found that trial counsel effectively rehabilitated Dr. Gruen and noted that the
“bulk of Gruen’s testimony” was consistent with trial counsel’s strategy:


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                                   No. 10-70012
      [Woodard] fails to show that counsel are ineffective for retaining
      and presenting Shirley Gruen, psychologist, as a punishment
      witness, notwithstanding Gruen’s testimony that the applicant was
      likely to re-offend, in light of trial counsel’s rehabilitation of Gruen’s
      statement and in light of the bulk of Gruen’s testimony that the
      applicant did well in a structured environment; that the applicant
      would be incarcerated for at least forty years and be a viable part of
      incarcerated society; that the applicant would not affiliate himself
      with a prison gang; that [Woodard’s] personality was not the same
      as psychopathic personality; and, that there were seven areas of
      mitigation applicable to [Woodard]: physiological deficit, physical
      and sexual abuse, life events, relationships, injury, emotional abuse,
      deficient communication and psychological disorder.

The state habeas court also concluded that “[c]ounsel are not ineffective for
presenting the punishment testimony of Gruen in light of Gruen’s assurances to
counsel that she spent sufficient time with [Woodard] and was prepared to
testify and in light of Gruen not informing counsel prior to trial of any opinion
that [Woodard] was likely to reoffend.”
      The state habeas court found that:
      [C]ounsel did not limit the amount of time that Gruen spent with
      [Woodard] to form her opinion; that counsel inquired whether she
      had sufficient time and Gruen assured counsel that she did and was
      prepared for testimony; that counsel discussed Gruen’s testimony
      with her beforehand; that counsel believed that Gruen’s testimony
      would support [the] defense strategy; and, that Gruen never told
      counsel that she did not have sufficient time to test [Woodard] and
      form an opinion.

We find that Woodard has not carried his burden under § 2254 to show that the
state court reached an unreasonable conclusion as to trial counsel’s alleged
failure to adequately prepare Dr. Gruen. “To prove deficient performance under
Strickland, a petitioner must demonstrate that counsel’s representation fell
below an objective standard of reasonableness.” Virgil v. Dretke, 446 F.3d 598,
608 (5th Cir. 2006) (quotations omitted). “We give substantial deference to
counsel’s performance, applying the strong presumption that counsel performed

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                                   No. 10-70012
adequately and exercised reasonable professional judgment. Because we must
make every effort to eliminate the distorting effects of hindsight, a conscious and
informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness.” Id.
      Woodard “fails to show how his counsel [are] responsible for the alleged
inadequacies of and conflicts in his expert[’]s testimony.” See Crawford v. Epps,
353 F. App’x. 977, 990 (5th Cir. 2009). This is not a case where counsel did not
provide the expert with sufficient information as to Woodard’s background or
explain their theory of defense to the expert. Cf. Neal v. Puckett, 239 F.3d 683,
690–91 (5th Cir. 2001) (finding ineffective assistance of counsel where, inter alia,
the defense-retained psychologist’s testimony “was surely limited by the fact that
she had met with Neal just one time, three days before testifying, and that trial
counsel failed to tell her about what specific crime Neal had been charged with
or any facts about his personal history”). Nor is this a case where counsel failed
to introduce mitigating evidence following a failure to investigate that was not
based on reasonable professional judgment. Cf. Wiggins v. Smith, 539 U.S. 510,
523 (2003) (focusing “on whether the investigation supporting counsel’s decision
not to introduce mitigating evidence of Wiggins’ background was itself
reasonable.”) and Williams v. Taylor, 529 U.S. 362, 395–96 (2000) (finding
ineffective assistance of counsel where attorney “failed to conduct an
investigation that would have uncovered extensive records graphically
describing Williams’ nightmarish childhood, not because of any strategic
calculation but because they incorrectly thought that state law barred access to
such records”).
      Woodard’s counsel made a reasonable strategic decision to argue that the
defendant was “someone who had made bad decisions due to terrible
circumstances and someone who would do well in the structured environment


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                                 No. 10-70012
of prison (rather than death).” Counsel retained Dr. Gruen to “present [Woodard]
as someone who would do well in a structured environment.” They discussed
their strategy with Dr. Gruen who assured them that she had had sufficient time
to examine Woodard and that she was prepared to testify. See Blanton v.
Quarterman, 543 F.3d 230, 238 (5th Cir. 2008) (“As to deficient performance, we
note that [the defendant] presented no evidence to suggest [the expert] was
unqualified or that trial counsel had reason to question the results of the
psychological examination she performed.”). Cf. Bean v. Calderon, 163 F.3d 1073,
1079 (9th Cir. 1998) (“When experts request necessary information and are
denied it, when testing requested by expert witnesses is not performed, and
when experts are placed on the stand with virtually no preparation or
foundation, a capital defendant has not received effective penalty phase
assistance of counsel.”). To the extent Dr. Gruen’s testimony may have been
detrimental to Woodard, that detriment cannot be impugned to his trial counsel.
Woodard’s counsel’s “representation [did not fall] below an objective standard of
reasonableness,” and his claim therefore fails. See Strickland, 466 U.S. at 688.
Reasonable jurists could not debate this issue and therefore Woodard is not
entitled to a COA.
                                CONCLUSION
      For the foregoing reasons, Woodard’s motion for a COA is DENIED in all
respects.




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