                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               November 15, 2006
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                         _____________________                      Clerk

                             No. 05-70033

                         _____________________

LIONELL RODRIGUEZ,

                        Petitioner - Appellant,

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                         Respondent - Appellee.

               ________________________________________

           Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 4:03-CV-317
             ________________________________________


Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is DENIED

in part and GRANTED in part as reflected in the substitute

opinion filed today.    No member of the panel nor judge in regular

active service of the court having requested that the court be


     *
        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that this opinion should not be published and is not precedent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.

                                   1
polled on Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35),

the Petition for Rehearing En Banc is DENIED.    We withdraw our

previous opinion and substitute the following.

     Lionel Gonzales Rodriguez was convicted in Texas state court

for the murder of Tracy Gee.    He now seeks habeas corpus relief

from his sentence of death.    After denying habeas relief on all

claims, the district court granted Rodriguez a certificate of

appealability (“COA”) on one issue: whether Rodriguez’s death

sentence violated his constitutional rights because he received

ineffective assistance of counsel (“IAC”) in the punishment phase

of his trial.   We find that Rodriguez’s claim is meritless and

AFFIRM the denial of habeas relief.    We DENY Rodriguez’s request

for a COA on all other issues.

                                 I.

     These are the facts as recounted by the district court:

     Rodriguez confessed to the murder for which he was

convicted.   According to Rodriguez’s confession, he became

physically abusive in an altercation with his mother and sister

on the night of the murder.    He then stole a shotgun and an

automatic rifle from his stepfather and drove around with his

cousin, Jaime Gonzalez, looking for a place to rob.    Rodriguez

unsuccessfully attempted to rob a gas station.    While driving

around, Rodriguez became angry at another driver and repeatedly

fired shots at him.   This occurred in a residential neighborhood.



                                  2
The other driver drove safely away and, at a distance, turned his

car around to write down Rodriguez’s license plate number.

Rodriguez jumped out of his car and fired another shot at the

other driver.

     Rodriguez and Gonzalez continued driving.      While stopped at

a stop light, Rodriguez noticed a young woman, Tracy Gee, sitting

alone in her car.   He decided to rob her and steal the car.      He

confessed to shooting at her one time with the rifle.       The shot

pierced the passenger side window and Gee’s head fell forward.

Her car started rolling, and Rodriguez jumped out of his car and

ran over to the other car.   He managed to get into the car and

pushed Gee out the driver side door onto the street.       He then

drove off in the stolen car.

     Gonzalez drove away from the scene, and a police officer,

Theron Runnels, pulled him over.       Gonzalez exited the car and,

after initially approaching the officer, began to run.       After a

chase, a second officer, Randy West, arrested Gonzalez for

evading arrest.   In the meantime, Runnels found a rifle and

shotgun in the car.   When West brought Gonzalez to Runnels so

that the latter could identify him, Gonzalez shouted that he did

not kill Gee but that his cousin did.

     Rodriguez was arrested in the victim’s car while fleeing the

scene of the crime.   His pants were stained with blood, and there

was blood, bone, and brain matter inside the car.       Rodriguez had



                                   3
brown matter in his hair.    Police also recovered a fired bullet

from the victim’s car and found gunpowder residue in Gonzalez’s

car.    The gunpowder residue showed that a gun was fired from

inside that car.

       An autopsy revealed a massive entrance gunshot wound to

Gee’s right temple that had very large lacerations radiating

around it, and an exit wound with extensive lacerations on the

left forehead.    Gee’s skull had massive fractures.   Some of her

brain extruded through the wounds.     Gee lost some bone fragments

from her skull when she was shot.     The cause of death was the

gunshot wound.

       During Rodriguez’s sentencing, the State presented evidence

that Rodriguez shot at the other driver.     Officers Runnels and

West testified that, when West brought Gonzalez to the scene of

the crime where Runnels was performing inventory on Gonzalez’s

car, Gonzalez stated that his cousin, Rodriguez, killed Gee.

       The State produced evidence that Rodriguez burglarized an

elementary school in January 1990.     Rodriguez received probation

for the burglary, but his probation was later revoked.     His

probation officer testified that Rodriguez was physically abused

by an alcoholic father during childhood.     The probation officer

characterized Rodriguez as having average to somewhat above

average intelligence and having the potential to do something

with his life.



                                  4
     The State introduced records from the Harris County Jail

naming Rodriguez as an “escape threat” and as “aggressive towards

staff,” instructing jail staff to use handcuffs and leg irons

when moving Rodriguez from his cell.   A Harris County Sheriff’s

Deputy testified that, during Rodriguez’s incarceration at the

Harris County Jail on the capital murder charge, there was a

standing order that Rodriguez was to wear leg irons and handcuffs

when he was out of his cell.   Rodriguez became belligerent to a

jail deputy while being brought to a visit with his mother.       Upon

returning to his cell, Rodriguez broke a window.    There was also

evidence that while at Harris County Jail, Rodriguez was

frequently disruptive, and jail staff tried to perform a daily

search of his cell for shanks or weapons.    During one of these

searches, deputies found a homemade shank.

     Veronica Vinton and her father testified that, after

Veronica refused Rodriguez’s request for a date, Rodriguez

stalked her.   Another witness testified that Rodriguez assaulted

him and damaged his car with a baseball bat.    Other witnesses

testified that Rodriguez had a bad reputation for not abiding by

the law.

     Gee’s sister Susan offered victim impact testimony.    She

testified that her mother’s health was affected by Tracy Gee’s

death.   She also described Tracy as a person of integrity, and

one who loved children.



                                 5
     Rodriguez’s sister, Veronica Lopez, testified on Rodriguez’s

behalf.   She testified that he became very angry and rude when he

was on crack.   She never saw Rodriguez get violent with anyone.

She testified that Rodriguez changed dramatically in the time

between the murder and his trial.     He had adapted to being in

prison and started a program creating pamphlets that he and other

inmates would send to juvenile homes and churches so that young

people could read about how the inmates wound up on death row and

could avoid the same fate.

     Rodriguez’s uncle testified that he is a recovering

alcoholic who became sober at age 23, the same age as Rodriguez

at the time of his trial.    He testified that he saw changes in

Rodriguez, specifically in Rodriguez’s desire to help others.

Rodriguez’s aunt testified that Rodriguez’s father, Henry, abused

drugs and alcohol and was extremely violent toward his wife and

children.   She also testified that Rodriguez changed and that he

had a religious conversion while incarcerated.     Rodriguez’s great

aunt corroborated that he experienced a religious conversion and

that he was working to discourage kids from pursuing a path of

crime.

     Janie Warstler, Rodriguez’s mother, testified that Henry was

very abusive and an alcoholic.    She also suspected that he was

using drugs.    Henry started taking Rodriguez to bars and giving

him beer to drink when Rodriguez was six or seven years old.



                                  6
Rodriguez started using drugs in his early teens.

     Henry threatened to kill Ms. Warstler on more than one

occasion.   He choked her and pushed her against a wall,

threatened her with a knife, and tried to run her over.      On one

occasion, he used a shotgun to shoot down the door of Ms.

Warstler’s mother’s house.    He was also physically abusive to

Rodriguez and his siblings, and once threatened Rodriguez’s

sister with a gun.   He also abused the family pets and other

animals.

     When Rodriguez was fourteen, Janie left Henry, but Rodriguez

insisted on staying with his father.    Some time later, Rodriguez

called his mother and told her that Henry was drunk all the time,

was not buying groceries, and was not giving Rodriguez any lunch

money.   When Janie said she would come and get him, Rodriguez

told her not to because he was afraid Henry would be there and

would be violent.    Janie sent her brothers to pick up Rodriguez.

     Henry also testified and agreed with Janie’s testimony.      He

also observed that Rodriguez has changed for the better during

the time he has been in prison.    Several other witnesses

testified that Rodriguez has changed while in prison, experienced

religious conversion, had no significant disciplinary problems,

and was a positive influence on others.

     The jury found that: (1) Rodriguez deliberately caused Tracy

Gee’s death and with the reasonable expectation that her death



                                  7
would occur; (2) there is a reasonable probability that Rodriguez

would commit criminal acts of violence that would constitute a

continuing threat to society; and (3) there were not sufficient

mitigating circumstances to warrant imposition of a sentence of

life imprisonment rather than death.       Accordingly, the Harris

County jury convicted Rodriguez of capital murder and sentenced

him to death on September 20, 1994.

                                    II.

     On direct appeal, the Court of Criminal Appeals affirmed

Rodriguez’s conviction and sentence.       Rodriguez v. State, No.

71,974 (Tex. Crim. App. Feb. 5, 1997).       Rodriguez did not seek

certiorari review in the Supreme Court of the United States.

Instead, he timely filed a state habeas application on March 27,

1998.       Rodriguez’s application was denied by the Texas Court of

Criminal Appeals based on the trial court’s findings of fact and

conclusions of law.       Ex parte Rodriguez, No. 50,773-01 (Tex.

Crim. App. Oct. 23, 2002).

     On July 3, 2003, Rodriguez timely filed an amended federal

writ of habeas corpus.1      Rodriguez v. Dretke, No. H-03-317 (S.D.

Tex. 2005).       On March 29, 2005, the district court ordered that

all habeas relief be denied, and granted a COA on one claim.

Rodriguez filed notice of appeal on May 19, 2005.       Rodriguez



        1
       Rodriguez filed a skeletal petition at first, and then,
with leave of court, filed an amended application.

                                     8
appeals the denial of a COA on six claims and presents one claim

on the merits.

                                 III.

     Because Rodriguez’s habeas petition was filed in the

district court after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,

AEDPA governs his petition.     See Lindh v. Murphy, 521 U.S. 320,

336 (1997).   We will consider Rodriguez’s COA request first,

followed by the issue for which the district court granted COA.

                                  A.

     Under AEDPA, Rodriguez must obtain a COA from either the

district court or appellate court before he can appeal the denial

of habeas relief.   See 28 U.S.C. § 2253(c)(1); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003).     To obtain a COA, Rodriguez

must make “a substantial showing of the denial of a

constitutional right.”   28 U.S.C. § 2253(c)(2).    That is, if

Rodriguez can show that the district court’s application of AEDPA

to his constitutional claims was debatable among reasonable

jurists, we will issue a COA.     Miller-El, 537 U.S. at 336.

     In deciding whether to grant a COA, we are limited “to a

threshold inquiry into the underlying merit of [the petitioner’s]

claims.”   Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel,

529 U.S. 473, 481 (2000)).    Our analysis “requires an overview of

the claims in the habeas petition and a general assessment of



                                   9
[their] merits” rather than a “full consideration of the factual

or legal bases adduced in support of the claims.”    Id. at 336.

“Because the present case involves the death penalty, any doubts

as to whether a COA should issue must be resolved in [the

petitioner’s] favor.”    Hernandez v. Johnson, 213 F.3d 243, 248

(5th Cir. 2000).

     In deciding whether to grant a COA, we recognize that AEDPA

imposes a deferential standard of review on a federal habeas

court with respect to claims adjudicated on the merits in state

court.    A federal court cannot grant habeas relief unless the

state court adjudication of that claim either:

     (1) resulted in a decision that was contrary to, or involved

     an unreasonable application of, clearly established federal

     law, as determined by the Supreme Court of the United States;

     or



     (2) resulted in a decision that was based on an unreasonable

     determination of the facts in light of the evidence presented

     in the state court proceeding.



28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S. 510, 520

(2003).    A decision is contrary to clearly established federal

law if it “reaches a legal conclusion in direct conflict with a

prior decision of the Supreme Court or if it reaches a different



                                  10
conclusion than the Supreme Court based on materially

indistinguishable facts.”    Miniel v. Cockrell, 339 F.3d 331, 337

(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004).      We presume

the facts to be correct unless Rodriguez meets his burden of

rebutting that presumption by clear and convincing evidence.      28

U.S.C. § 2254(e)(1).

     Rodriguez argues that reasonable jurists would find it

debatable that: (1) the admission of Gonzalez’s statement and

Rodriguez’s jail disciplinary records did not violate Rodriguez’s

Sixth Amendment right, (2) the challenge for cause of potential

juror Anita Rodriguez did not violate Rodriguez’s right to due

process, and (3) the ineffective assistance of counsel he

received with respect to each of the aforementioned alleged

errors did not violate his Sixth Amendment right.    Each claim

will be addressed in turn.

1.   Admission of Accomplice Statements and Jail Disciplinary

     Records



     Rodriguez claims a COA should issue because reasonable

jurists could debate whether his Sixth Amendment right was

violated by the district court’s admission of Gonzalez’s

statement implicating Rodriguez as Gee’s murderer as an “excited

utterance.”    He also argues the admission of his jail

disciplinary records and Gonzalez’s statement violated the Sixth



                                  11
Amendment under Crawford v. Washington, 541 U.S. 36 (2004).

                                a.

     Rule 803(2) of the Texas Rules of Criminal Evidence2 states

that an “excited utterance” is a “statement relating to a

startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition.”     Tex.

R. Evid. 803(2).   The “critical factor” for determining whether a

statement is an excited utterance is “‘whether the declarant was

still dominated by the emotions, excitement, fear, or pain of the

event.’”   Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App.

2005) (citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim.

App. 2003)).

     Reasonable jurists would not debate the district court’s

determination that Gonzalez’s statement was an excited utterance,

and that its admission did not violate the Sixth Amendment.     In

the district court, Rodriguez argued the facts are insufficient

to show that Gonzalez’s statement was spontaneous and

unreflective, because of the period of time that had elapsed

between Gonzalez’s flight and his return to his vehicle.    The

district court concluded that Rodriguez’s argument fails because

an “excited utterance” is not defined by the period of time

elapsed between the startling event and the statement made about



     2
       After Rodriguez’s trial, the Texas Rules of Criminal
Evidence changed its title to the Texas Rules of Evidence.

                                 12
it.   See Zuliani, 97 S.W.3d at 596 (“[I]t is not dispositive that

the statement is an answer to a question or that it was separated

by a period of time from the startling event; these are simply

factors to consider in determining whether the statement is

admissible under the excited hearsay exception.”).    The district

court noted that: (1) Gonzalez blurted out his remarks concerning

Tracy Gee’s murder after fleeing a routine traffic stop, being

chased by police officers, and being apprehended while weapons

from within his vehicle were being inventoried by police, and (2)

Gonzalez actually observed the events he described and his

intervening actions, including hiding in a swimming pool and in

someone’s vehicle, and demeanor were known to the two officers.

Rodriguez fails to make a substantial showing that he was denied

his constitutional right.

                                b.

      Rodriguez also argues that reasonable jurists could debate

the district court’s determination that the introduction of both

Gonzalez’s statement and the jail disciplinary records do not

violate Crawford,3 541 U.S. 36 (2004).   See also U.S. CONST.

amends. VI, XIV.   Rodriguez’s arguments are barred by the non-

retroactivity doctrine of Teague v. Lane.   Lave v. Dretke, 444



      3
       Crawford v. Washington held that out-of-court testimonial
statements are per se inadmissible against a criminal defendant
unless the defendant has had a prior opportunity to cross examine
the declarant. 541 U.S. 36, 68 (2004).

                                 13
F.3d 333, 337 (5th Cir. 2006) (holding that the rule in Crawford

is not to be applied retroactively); see also Teague v. Lane, 489

U.S. 288, 301 (1989) (holding that, except in very limited

circumstances, a federal habeas court cannot retroactively apply

a new rule of criminal procedure).

     Reasonable jurists would not debate the district court’s

determination that the state court admitted both Gonzalez’s

statement and the jail disciplinary records under prevailing law

at the time that Rodriguez’s conviction became final.     The

district court found that the officers’ testimonies recounting

Gonzalez’s statement satisfied the Confrontation Clause because

they qualified under a firmly-rooted hearsay exception.     See

White v. Illinois, 502 U.S. 346, 355 n.8, 356 (1992).     Rodriguez

has not shown that a COA should be granted on this issue.        See

Teague, 489 U.S. at 301.    As to the jail disciplinary records,

the district court determined that the trial court admitted the

jail disciplinary records, over objection, under the business

records exception to the general rule barring hearsay.     The

business records exception was applicable at the time of

Rodriguez’s trial and direct appeal.    TEX. R. CRIM. EVID. 803(6).

Rodriguez fails to make a substantial showing that his

constitutional right was denied by the admission of either of

these pieces of evidence.

2.   Challenge to Prospective Juror Anita Rodriguez



                                  14
     Rodriguez claims a COA should issue because reasonable

jurists could debate whether the State did not violate his right

to due process by misinforming the trial court regarding the

eligibility of a challenged juror, Anita Rodriguez.

     Prior to voir dire, the prosecution advised the trial court

that it believed Ms. Rodriguez was subject to a challenge for

cause under Texas Code of Criminal Procedure article 35.16(a)(2),

which provides that a juror is disqualified from serving if she

has been convicted of any grade of theft or of a felony. TEX.

CODE. CRIM. PROC. art. 35.16(a)(2).    Defense counsel objected to the

challenge on the grounds that a successfully completed probation

was not a conviction for purposes of disqualifying a prospective

juror.4   Ms. Rodriguez admitted to the trial court that she had

been convicted of misdemeanor theft in 1984 and placed on

probation, and she said that her probation was terminated.      The

trial court granted the challenge for cause.      Neither the trial

court nor defense counsel requested copies of Ms. Rodriguez’s

probation records.

     Records from the Harris County Clerk’s Office reflect that

Ms. Rodriguez was successfully discharged from her probation, and

the charge against her was dismissed.      In the district court,


      4
       Trial counsel was unsure and inquired upon objecting
whether a successfully completed probationary period was a
conviction for the purpose of determining eligibility for jury
service. The trial court obtained advice from the court clerk
that it was a conviction.

                                  15
Rodriguez argued that Ms. Rodriguez was not subject to challenge

for cause because she received and successfully completed

probation; he believes the prosecution lied to the trial court

about Ms. Rodriguez’s eligibility to serve.    Rodriguez further

argued that the prosecution deliberately confused the trial court

by employing the term “terminating” rather than “revoking” in

describing the manner in which Ms. Rodriguez’s probation ended.

The district court found the fact that Ms. Rodriguez’s probation

had “terminated” was an accurate reflection, and the trial court

deemed it enough to rule on the challenge.    Reasonable jurists

would not debate the district court’s determination that

Rodriguez failed to make a substantial showing that prosecutorial

misconduct violated his right to due process.

3.   Ineffective Assistance of Counsel

     We turn to Rodriguez’s IAC claims regarding the admission of

Gonzalez’s statement and the jail disciplinary records and the

challenge to potential juror, Ms. Rodriguez.    Rodriguez alleges

that reasonable jurists could debate the district court’s

decision in denying his IAC claims based on (1) his appellate

counsel’s failure to appeal the admission of Gonzalez’s statement

through the testimonies of Officers Runnels and West, (2) his

appellate counsel’s failure to appeal the introduction of the

jail disciplinary records in the Texas Court of Criminal Appeals,

and (3) his trial counsel’s failure to timely supplement the



                                16
record with evidence demonstrating the trial court’s erroneous

conclusion in dismissing Ms. Rodriguez as a juror, and to advise

appellate counsel of this possible ground for error.5

       Strickland v. Washington governs IAC claims.    466 U.S. 668

(1984).     In order to prevail, Rodriguez must meet both the

deficiency and prejudice prongs of the Strickland test.      Id. at

687.    Rodriguez must tie the deficiency and prejudice prongs to

specific acts or omissions of his counsel that are not the result

of professional judgment.     Id. at 690.   If Rodriguez fails to

prove either prong, his claim fails.

       First, to prove deficiency, Rodriguez must prove that in

light of all the circumstances as they appeared at the time of

the conduct, his counsel’s representation fell below an objective

standard of reasonableness.     Id. at 687.   Rodriguez’s burden is

heavy.     Id. at 689 (stating that the court presumes the alleged

deficiencies “fall[] within the wide range of reasonable

professional assistance”).     See also Jones v. Barnes, 463 U.S.

745, 749 (1983) (“It is not required that an attorney argue every

conceivable issue on appeal, especially when some may be without


       5
       Rodriguez alternatively argued in the district court that
he obtained IAC from his appellate counsel too, “if” appellate
counsel had knowledge of the county clerk’s office records. The
record shows that Rodriguez’s appellate counsel attempted to
supplement the appellate record before the Texas Court of
Criminal Appeals with Ms. Rodriguez’s misdemeanor probation
records, which was denied. The district court concluded that
Rodriguez failed to identify how his appellate counsel performed
deficiently.

                                   17
merit.    Indeed, it is his professional duty to choose among

potential issues, according to his judgment as to their merit and

his tactical approach.”(internal citations omitted)).    Second, to

prove prejudice, Rodriguez “must show that there is a reasonable

probability that, but for [his] counsel’s unprofessional errors,

the result of [his] proceeding would have been different.”      Id.

at 694.

     A COA will not issue on any of Rodriguez’s IAC claims

because reasonable jurists would not debate the district court’s

determination on each issue.    Rodriguez’s counsel objected to the

admission of Gonzalez’s statement, and he was overruled.

Rodriguez contended in the district court that his appellate

counsel was ineffective by failing to raise this ground on direct

appeal.    Rodriguez’s state appellate counsel filed a brief

containing thirty points of error, but did not raise as a claim

for relief the trial court’s admission of Gonzalez’s accusations

against Rodriguez.    The district court found that there was no

error in admitting Gonzalez’s statement, and, therefore,

Rodriguez’s appellate counsel was not deficient for failing to

raise the issue.    Further, the district court concluded Rodriguez

cannot show prejudice because it is not reasonably likely that he

would have received any relief had the claim been presented.

     Rodriguez argued in the district court that the reliability

of the jail disciplinary records was subject to challenge at the



                                  18
time of appeal.   The district court found that Rodriguez cannot

show that his appellate counsel was deficient in failing to

object to the admission of these records because the trial court

properly admitted the records according to the law existing at

the time of Rodriguez’s trial and direct appeal.

     Finally, reasonable jurists would agree that Rodriguez

cannot show deficiency or prejudice on the issue of whether his

trial counsel was ineffective for failing to obtain Ms.

Rodriguez’s records in time to present them to the trial court

and for failing to advise appellate counsel of this possible

ground for error.   See Jones, 463 U.S. at 751-52.

                                B.

     For the issue certified by the district court, we engage in

a determination of its merits under AEDPA.   Rodriguez claims that

his death sentence violates the Sixth and Fourteenth Amendments

because he received IAC during his sentencing proceedings.    As

discussed, a petition for a writ of habeas corpus shall not be

granted with respect to any claim that was adjudicated on the

merits in state court proceedings unless the prior adjudication

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States.”     28 U.S.C.

§ 2254(d)(1).   Again, a decision is contrary to clearly

established federal law if it “reaches a legal conclusion in



                                 19
direct conflict with a prior decision of the Supreme Court or if

it reaches a different conclusion than the Supreme Court based on

materially indistinguishable facts.”      Miniel v. Cockrell, 339

F.3d 331, 337 (5th Cir. 2003), cert. denied, 540 U.S. 1179

(2004).   As also discussed, in ruling on the merits, we defer to

the state court’s factual findings unless they “resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court

proceeding.”    28 U.S.C. § 2254(d)(2).   Our inquiry into

reasonableness is objective, not subjective, and we will not

issue the writ as a result of our independent judgment that the

state habeas court “applied clearly established federal law

erroneously or incorrectly.”    Williams v. Taylor, 529 U.S. 362,

409-11 (2000).   We presume correct the factual findings of the

state unless the petitioner “rebut[s] the presumption of

correctness by clear and convincing evidence.”     28 U.S.C.

§ 2254(e)(1).

     Rodriguez contends that trial counsel neither investigated

nor presented evidence in relation to the etiological origins of

his brain damage and the link between the damage to his brain’s

frontal lobes and his impulsive nature.     Rodriguez’s evidence

consists of written statements found in the institutional records

of the Orchard Creek Hospital, a psychiatric facility where

Rodriguez was treated prior to his trial for Gee’s murder, that



                                  20
were known to his counsel but were not presented at his trial.

In addition, Rodriguez complains that his jury did not hear a

neuro-psychologist’s opinion that his abusive upbringing, lengthy

drug addiction, and use of cocaine damaged his brain’s frontal

lobes.   He argues that this unproferred evidence could have

persuaded one juror to vote against the death penalty.

     Rodriguez admitted that his counsel at his state habeas

proceeding did not provide this claim to the state court.

Pursuant to 28 U.S.C. § 2254(b)(1), Rodriguez should have fully

exhausted remedies available to him in state court before

proceeding to federal court; he should have presented the

substance of his claim in the state court.    Nobles v. Johnson,

127 F.3d 409, 420 (5th Cir. 1997).    “A habeas petitioner fails to

exhaust state remedies ‘when he presents material additional

evidentiary support to the federal court that was not presented

to the state court.’”   Kunkle v. Dretke, 352 F.3d 980, 988 (5th

Cir. 2003), cert. denied, 543 U.S. 835 (2004) (quoting Graham v.

Johnson, 94 F.3d 958, 968 (5th Cir. 1996)).    See also Moore v.

Quarterman, 454 F.3d 484, 491 (5th Cir. 2006) (“Evidence is not

material for exhaustion purposes if it supplements, but does not

fundamentally alter, the claim presented to the state courts.”)

(internal quotations and citation omitted) (emphasis in

original).

     In assessing the exhaustion of Rodriguez’s IAC claim as it



                                 21
pertains to his counsel’s failure to investigate Rodriguez’s

brain damage, we look to Rodriguez’s diligence at the state

habeas level: “[A] failure to develop the factual basis of a

claim is not established unless there is a lack of diligence

. . . . Diligence . . . depends upon whether [petitioner] made a

reasonable attempt, in light of the information available at the

time, to investigate and pursue claims in state court . . . .”

Williams, 529 U.S. at 430-32, 435.

     Rodriguez claims that he could not present these pieces of

evidence in the state habeas proceedings because he was not

provided enough resources to conduct his investigation.   However,

the record shows that the Texas Court of Criminal Appeals granted

Rodriguez $4000 for investigative services in connection with his

state habeas proceeding.6   As noted by the district court,

Rodriguez does not explain why he did not obtain at least some

neurological or psychological tests with the funds granted him.

It is unclear whether Rodriguez exercised sufficient diligence at

the state habeas level.

     However, even if Rodriguez had exhausted his state remedies,

his claim for IAC fails.    See 28 U.S.C. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust


     6
       In total, Rodriguez requested more than $11,000 for
investigative services, almost half of which was requested just
days before his petition for writ of habeas corpus was due.

                                  22
the remedies available in the courts of the State.”)            Again,

Strickland governs Rodriguez’s IAC claim.          466 U.S. 668 (1984).

In order to prevail, Rodriguez must meet both the deficiency and

prejudice prongs of the Strickland test.          Id. at 687.   As

discussed, to prevail on the deficiency prong, Rodriguez must

demonstrate that counsel’s representation fell below an objective

standard of reasonableness.    Id.        In order to prove prejudice,

Rodriguez must show a reasonable probability that but for his

counsel’s deficient performance, the “additional mitigating

evidence [was] so compelling that there is a reasonable

probability that at least one juror could reasonably have

determined that, because of [the defendant’s] reduced moral

culpability, death was not an appropriate sentence.”            Neal v.

Puckett, 286 F.3d 230, 241 (5th Cir. 2002) (en banc), cert.

denied, 537 U.S. 1104 (2003); see also Strickland, 466 U.S. at

695 (“[T]he question is whether there is a reasonable probability

that, absent the errors, the sentencer–-including an appellate

court, to the extent it independently reweighs the evidence--

would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.”).

     “[C]ounsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary.”    Strickland, 466 U.S. at 691

(emphasis added).   “[A] particular decision not to investigate



                                     23
must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

judgments.”   Id.   “In assessing counsel’s investigation, we must

conduct an objective review of their performance, measured for

reasonableness under prevailing professional norms, which

includes a context-dependent consideration of the challenged

conduct as seen from counsel’s perspective at the time.”     Wiggins

v. Smith, 539 U.S. 510, 523 (2003) (internal quotation marks and

citations omitted); see Rompilla v. Beard, 545 U.S. 374, 381

(2005) (noting that “hindsight is discounted by pegging adequacy

to ‘counsel’s perspective at the time’ investigative decisions

are made”) (quoting Strickland, 466 U.S. at 689).

     The evidence does not support Rodriguez’s contention that

his trial counsel performed deficiently by not presenting

evidence of his brain damage.   Trial counsel pursued a mitigation

case that described Rodriguez as a changed person.   The jury

heard abundant evidence lessening Rodriguez’s moral culpability

and humanizing him.   They heard from witnesses who described

Rodriguez as having reformed his conduct through religious

studies following his incarceration in 1991 and that he had a

good disciplinary record while incarcerated.   It is a reasonable

conclusion, and within trial counsel’s purview of professional

judgment, that evidence of brain damage to explain Rodriguez’s

violent behavior would counteract counsel’s mitigation strategy.



                                  24
Evidence of Rodriguez’s permanent brain damage presents the

proverbial double-edged sword: it could bolster the State’s case

on future dangerousness without significantly reducing, if at

all, Rodriguez’s moral blameworthiness.   See Martinez v. Dretke,

404 F.3d 878, 889 (5th Cir.), cert. denied, 126 S. Ct. 550 (2005)

(“As we have held, evidence of organic brain injury presents a

‘double-edged’ sword, and deference is accorded to counsel’s

informed decision to avert harm that may befall the defendant by

not submitting evidence of this nature.”).   Thus, trial counsel’s

decision not to introduce evidence of brain damage, given the

availability of other, less damaging, mitigating evidence, falls

within the bounds of sound trial strategy.   See id. at 890.

     Rodriguez insists that trial counsel’s strategic decision

not to introduce evidence of brain damage was unreasonable

because trial counsel failed to investigate brain damage.    In

support of this failure to investigate claim, Rodriguez points to

the institutional records of the Orchard Creek Hospital and a

neuro-psychologist’s opinion that his abusive upbringing, lengthy

drug abuse, and use of cocaine damaged his frontal lobes.7     The

state habeas court found: that trial counsel was aware of the


     7
       Even though it is questionable whether Rodriguez
exercised sufficient diligence at the state habeas level to
exhaust his failure to investigate claim, we may still deny his
writ of habeas corpus on the merits. See 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”).

                                25
institutional records at Orchard Creek Hospital but decided not

to introduce them; that trial counsel objected to the State’s

attempt to admit the Orchard Creek Hospital records, “in part,

because trial counsel did not want the jury informed of a

diagnosis of sociopathy for [Rodriguez], and that trial counsel

instead offered extensive evidence of [Rodriguez’s] character

change and his good deeds in prison to persuade the jury that

[Rodriguez] would not be a future danger”; and that the

institutional records were used by the State for the limited

purpose of cross-examining Rodriguez’s mother and that the

records did not present the jury with a diagnosis of sociopathic

behavior.   The state habeas court further found that “trial

counsel presented extensive testimony . . . of [Rodriguez’s] home

life, his father’s abuse, and its affect on [Rodriguez],” and

that trial counsel presented evidence of Rodriguez’s drug

problem, including Rodriguez’s anger when he used crack cocaine.

Rodriguez has not rebutted the presumption of correctness of the

state court’s factual findings, and we defer to these findings in

ruling on the merits.   See 28 U.S.C. § 2254(e)(1).

     Most of the evidence that Rodriguez claims resulted in an

unreasonable investigation by trial counsel was actually

presented by trial counsel and heard by the jury.     As found by

the state court, the jury heard evidence of Rodriguez’s home

life, his father’s abuse, his drug abuse, and the fact that he



                                 26
got angry when he used crack cocaine.        The jury did not hear

evidence of Rodriguez’s institutional records at Orchard Creek

Hospital.    The decision not to introduce those records and to

forego further investigation into those records probably was not

unreasonable in light of other potentially conflicting mitigating

evidence, what trial counsel knew at the time of Rodriguez’s 1994

trial, what the State introduced into evidence, and the “heavy

measure of deference” owed to counsel’s investigative judgments.

See Strickland, 466 U.S. at 691; see also Wiggins, 539 U.S. at

523.   The only remaining evidence that Rodriguez proffers–-the

opinion of the neuro-psychologist in post-conviction proceedings

--is irrelevant to determining the reasonableness of trial

counsel’s perspective (and thus investigation) in Rodriguez’s

1994 trial.    See Martinez, 404 F.3d at 886 (stating that

testimony of experts and family members not involved in the

defendant’s 1989 trial proceedings is “irrelevant to counsel’s

perspective in 1989"); see also Rompilla, 545 U.S. at 381.

       Even if counsel’s strategies in failing to further

investigate or present evidence of brain damage could be

described as deficient, they cannot form the basis of a

constitutional ineffectiveness assistance of counsel claim

because Rodriguez cannot affirmatively demonstrate prejudice.

See Strickland, 466 U.S. at 695.        In other words, there is no

evidence that trial counsel’s strategies, even if they fell below



                                   27
professional norms, prejudiced Rodriguez or “‘permeated [his]

entire trial with obvious unfairness.’”    Martinez, 404 F.3d at

890 (quoting United States v. Jones, 287 F.3d 325, 331 (5th

Cir.), cert. denied, 537 U.S. 1018 (2002)).    “In assessing

prejudice, we ‘must consider the totality of the evidence before

the judge or jury.’” Id. (quoting Strickland, 466 U.S. at 695).

     In addition to the mitigation evidence presented by the

defense, the jury had before it evidence of Rodriguez’s execution

of the crime of conviction.   The jury heard evidence that on the

night of the murder, Rodriguez stole a shotgun and an automatic

rifle from his stepfather and was driving around looking for a

place to rob.   The jury heard that Rodriguez unsuccessfully

attempted to rob a gas station, and that he repeatedly fired

shots at another driver in a residential neighborhood before

shooting Gee and stealing her car.    The State produced evidence

that Rodriguez burglarized an elementary school in 1990.    The

State also produced evidence of Rodriguez’s Harris County Jail

records depicting Rodriguez as an “escape threat” and “aggressive

towards staff.”   The jury found there was not sufficient

mitigating evidence to warrant imposition of a life sentence in

lieu of the death sentence.   It is not reasonably probable that

this outcome would change if, assuming arguendo, his counsel had

not erred in investigating or presenting this additional

evidence.   See Strickland, 466 U.S. at 695 (“[T]he question is



                                 28
whether there is a reasonable probability that, absent the

errors, the sentencer–-including an appellate court, to the

extent it independently reweighs the evidence--would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.”).   The nature of the

evidence against Rodriguez advises against a prejudice finding.

Cf. Martinez, 404 F.3d at 890.

                                 IV.

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

COA on all issues, and we AFFIRM the denial of habeas relief on

Rodriguez’s ineffective assistance of counsel claim for failure

to investigate and present evidence of brain damage pertaining to

the penalty phase of Rodriguez’s trial.

     COA DENIED; Habeas Relief DENIED; Judgement of the district

court is AFFIRMED.




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