                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                                                  FILED
                                                             February 17, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                        _____________________                      Clerk
                             No. 04-70008
                        _____________________

ROBERT ALAN SHIELDS,

                                                Petitioner - Appellant
                   v.
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
                                                Respondent - Appellee

                         ---------------------
         Appeal from the United States District Court for the
                 Southern District of Texas, Galveston
                             (3:99-CV-753)
                         ---------------------

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Robert Alan Shields seeks a certificate

of appealability (“COA”) on multiple issues that the district

court deemed unworthy of collateral review.      Shields also appeals

the district court’s order granting summary judgment in favor of

respondent-appellee Doug Dretke (“the State”). Shields further

appeals the district court’s order denying an evidentiary hearing

under 28 U.S.C. § 2254(e)(2).


     *
         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that this opinion should not be published and is not precedent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.
     Because Shields has failed to make a substantial showing of

the denial of a constitutional right, we deny his application for

a COA on all of his claims after a threshold inquiry on the

merits.    We further find that the district court did not abuse

its discretion when it denied Shields an evidentiary hearing.

                               I. PROCEEDINGS

     In 1994, a Texas grand jury indicted Shields for the murder

of Paula Stiner while in the course of committing and attempting

to commit burglary and robbery.            In 1995, a jury found Shields

guilty of capital murder.            After the penalty phase, the jury

recommended the death penalty, and, in October 1995, the trial

court sentenced Shields to death.

     Shields directly appealed his conviction and sentence to the

Texas Court of Criminal Appeals (“TCCA”).               In 1998, the TCCA

affirmed Shields’s conviction and sentence.1              Shields filed a

motion for rehearing, which that court denied.

     Shields timely filed an application for a writ of habeas

corpus    in   the   state   trial   court.     The   trial   court   entered

findings of fact and conclusions of law, recommending that relief

be denied.2     The TCCA adopted the trial court’s findings of fact

     1
       See Shields v. State, No. 72,278 (Tex. Crim App. Feb. 25,
1998) (unpublished).
     2
       See Ex parte Shields, No. 94CR1685-83 (112nd Judicial
District Court of Galveston County, Texas, Oct. 14, 1998).

                                       2
and conclusions of law and denied relief after its own review of

the record.3

     In 1999, Shields timely filed a petition for a writ of

habeas    corpus      in    the    United    States    District          Court      for   the

Southern District of Texas.                 Shields’s federal habeas petition

contained numerous unexhausted claims.                 After the state filed its

opposition to Shields’s petition, in which it argued that the

majority    of     Shields’s       claims    were    unexhausted          and    therefore

procedurally       barred,        Shields    moved    to     stay       the   proceedings

pending his return to state court to exhaust the unexhausted

claims.      The      district      court   granted        the       motion   and    allowed

Shields to return to state court to exhaust his claims.                                   The

order further permitted Shields to refile his federal petition

within 90 days if the TCCA denied relief.                               Pursuant to the

district    court’s         order,    Shields       filed        a    successive      habeas

application with the TCCA.

     In 2002, the TCCA denied Shields’s successive state habeas

application      as    an    abuse    of    the     writ    under        state      statute.4

Shields then refiled his federal petition in the district court.

In 2003, the district court denied Shields’s petition, denied his


     3
       See Ex parte Shields, No. 72,278-01 (Tex. Crim. App. Dec.
9, 1998).
     4
         See TEX. CODE CRIM. PROC. art. 11.071 § 5 (Vernon’s 1999).

                                             3
request for an evidentiary hearing, and rendered summary judgment

in favor of the State.          Shields filed a motion in the district

court to alter or to amend its judgment under Federal Rule of

Civil Procedure 59(e), and the district court denied the motion.

      In February 2003, Shields sought a COA in the district court

on   28    issues.      Based   on   the       TCCA’s   dismissal   of   Shields’s

successive     habeas    petition,    the       district   court    rejected   the

majority of Shields’s claims as procedurally barred.                      After a

threshold inquiry on the merits, the district court rejected

those claims on which Shields had not procedurally defaulted.

Shields now seeks a COA on these issues from this court.

                           II. FACTUAL BACKGROUND

      A.     Guilt-Innocence Phase

      The evidence adduced at trial showed that Tracy Stiner, the

victim’s husband, arrived home from work shortly before 6:00 p.m.

on September 21, 1994.           He discovered his wife’s body in the

laundry room.        Mrs. Stiner’s body lay on its right side on the

floor of the laundry room with her back to the washer and dryer.

The room and the victim were covered in blood.                      The breakfast

area of the house was in disarray, and the contents of Mrs.

Stiner’s purse were strewn about.               There was also a hammer on the

floor of the breakfast area.           As Mr. Stiner searched the house,

he noticed that several items —— including several pair of socks,

                                           4
shirts, a book bag, and a kitchen knife —— were missing.                             Mr.

Stiner testified that he later learned that, at 11:37 a.m. —— a

time when his wife would have been at work —— a telephone call

had been made from his home to the home of one of Shields’s

friends in Spring, Texas.

     Dr.    William     Korndoffer,    Galveston          County’s    Chief       Medical

Examiner, testified that Mrs. Stiner had suffered a blunt trauma

to the head and had been repeatedly stabbed in the throat, chest,

and torso.        Mrs. Stiner also suffered a number of defensive

wounds, which indicated that she had struggled with her assailant

before she died.

     Detective Michael Wayne Tollett of the Friendswood Police

Department testified that he was notified of Mrs. Stiner’s murder

around   6:16    p.m.   on   September       21   and     arrived    at     the   Stiner

residence     shortly    thereafter.         Tollett      testified        that   police

lifted Shields’s fingerprints from the laundry room and that

bloody shoe prints at the scene were consistent with Shields’s

shoes.     Tollett found blood on the purse, the carpet, and a large

amount   of     blood   in   the   laundry        room.      He     also    found    one

screwdriver on the carpet below a broken window and a wooden-

handled screwdriver outside.          A cigarette butt found at the scene

had saliva on it consistent with Shields’s saliva.                    Mrs. Stiner’s

car was also missing.

                                         5
       The     Shields    family      lived    next    door     to    the   Stiners.

Christine      Shields,    Shields’s     mother,      testified      that   a   police

officer informed her of Mrs. Stiner’s murder when she returned

home on September 21.            The next day, Mrs. Shields noticed that

some items were out of place in her garage —— cushions had been

arranged to form a makeshift bed, and some drinks were nearby.

Mrs. Shields also found Shields’s pager and one of his shirts

near    the    cushions,   although      Shields      had    not   lived    with   his

parents for several months and was not welcome in their home

without at least one parent present.                  When Mrs. Shields learned

from neighbors that a wooden-handled screwdriver like one that

she and her husband owned had been used to break into the Stiner

home, she began to suspect that her son was involved in the

crime.       She contacted the police and gave them Shields’s friends’

phone numbers where he might be reached.

       Shields was arrested on September 24, 1994.                    At the police

station, police noticed cuts on his hands.                   There was also a cut

on his right chin and what appeared to be blood on his shoes,

which    the    police    took   to    the    lab   for     analysis.       Shields’s

underwear was also saturated with blood.

       Shields’s     fingerprints        were       found     on     Mrs.    Stiner’s

checkbook, on the door leading from the laundry room to the

garage, and in Mrs. Stiner’s car.               Mr. Stiner identified several

                                          6
of the items in Mrs. Stiner’s car as having been in his home

before his wife’s murder.            The bloody shoe impression at the

crime scene matched the shoes that Shields wore at the time of

his arrest.       The blood obtained from Shields’s underwear and from

a paper towel at the Stiner home were consistent with Shields’s

blood.

      Further, evidence showed that Shields had used Mrs. Stiner’s

credit card after the murder to purchase a suit.             Mark Lang was

manager of Dejaiz’s Men’s Clothing in Willowbrook Mall and was

working on September 21.       He testified that Shields came into the

store around 6:15 p.m. and purchased a suit with a credit card in

the name of Paula Stiner.       Shields signed the credit card slip in

the   name   of    Tracy   Stiner,   Mrs.   Stiner’s   husband.    When   Lang

noticed a horizontal cut on Shields’s finger, Lang was told by

Shields that he had cut his finger while splicing wires at work.

Shields also had a bandage around his middle finger on his left

hand.

      Several      of   Shields’s    friends   also    testified    for   the

prosecution.      Troy Sterner testified that he knew Shields in 1994

and, at that time, Shields was staying in vacant houses in the

Woodlands area.         Shortly after the murder, Sterner saw Shields

with cuts on his hand.       Shields told Sterner that he had cut them

while working at a store.

                                       7
     Gina Cykala, a friend of Shields, testified that on the day

of the murder she saw Shields at McDonald’s at around 8:45 p.m.

Shields was driving a big white car that she had never seen

before.   Shields told Cykala that he had borrowed the car from a

friend.

     Colin Checketts also testified that on September 21, Shields

was driving a white car.        Shields told Checketts that he had

obtained the car from a friend, Ray Holt, and wanted to sell it

for $500.        He told Checketts that he had cut his hands while

working at a store.      He then gave Checketts the suit that he had

purchased at Dejaiz’s Men’s Clothing Store.      David Chastain and

Jarrod Moore, two of Shields’s friends, testified the same.

     The defense put no witnesses on the stand during the guilt-

innocence phase.       After hearing all of this evidence, the jury

returned a verdict of guilty.

     A.     Penalty Phase

            1.     Evidence by the State

     At the penalty phase, the State introduced evidence that

Shields had been assessed deferred adjudication probation for

theft/burglary of a motor vehicle in 1992, after which Shields

completely disregarded the terms of his probation.

     Authorities also arrested Shields in Florida in 1994 for

grand theft auto.        In January 1994, Shields and two friends,

                                    8
Chastain and Checketts, broke into a car in Friendswood, stole a

checkbook and a credit card and charged $150 in cigarettes before

the card was reported stolen.             Around the same time, the three

friends broke into a house next door to Shields’s and stole cash,

car keys, and, later, the car itself.               They then drove to Florida

in the car, shoplifting along the way.                  They were arrested in

Florida for grand theft auto.             They had also attempted to break

into a home in Florida, but they fled when a neighbor spotted

them.     The jury also heard testimony that in July 1994, Shields

had been involved in stealing credit cards and a cell phone from

another car.

     Based     on   the    testimony   of     Shields   and    his    mother,    the

Florida court liaison officer recommended, and the court ordered,

that the conditions of probation be amended to allow Shields to

enter St. Joseph’s Psychiatric Hospital for at least one month to

receive      psychiatric     evaluation       and   possible   drug    treatment.

After twelve days, the court allowed Shields to report on an

outpatient basis.         Shields later missed two appointments in July

1994.       On August 10, Mrs. Shields urged the court officer to

issue   a    warrant   for   Shields   so      that   she   could    retrieve    her

missing car, which Shields had stolen.

     John Matzelle, a friend of Shields, testified that in June

1994, Shields loaded a pistol and pointed it at him.                            When

                                          9
Matzelle    objected,    Shields      stood       up       and   shoved    the      gun    in

Matzelle’s face, stating that he “could point the fucking gun in

[his] face if he felt like it.”                       Shields later went in the

backyard and fired the gun twice over the fence, returning to

tell his friends that he “had just shot at his mail carrier.”

Detective    Tollet    testified      that       no    mail      carrier       recalled     a

shooting incident on his route that day.

      To refute the defense psychiatric testimony, the State also

called Dr. Edward Gripon as a rebuttal witness.                        Responding to a

hypothetical question that paralleled the facts of Paula Stiner’s

murder, Dr. Gripon testified that such an offender lacks concern

and   remorse    for   his   own    action.           He    further    testified      that

Shields’s psychiatric records demonstrate poor impulse control

and    aggressiveness.        Dr.     Gripon           diagnosed        Shields       with

“personality disorder with features of aggressivity, features of

antisocial      personality,       which    is    the        absence      of    a   social

conscience, not caring what one does, that sort of thing.”                                Dr.

Gripon testified that in his opinion, Shields is a future danger.

Dr. Gripon never personally interviewed Shields.

      2.    Evidence by the Defense

      Mrs. Shields testified that Shields had a close relationship

with his family until two years after they moved to Colorado from

Texas.     At that point, Shields became withdrawn and did not get

                                           10
along with his father. When the family moved back to Texas,

Shields’s grades were average, and he was a typical fifteen-year

old.    Shields’s relationship with his family deteriorated after

an arrest for theft.        He began to associate with “undesirable”

people and at times would disappear from home for a day or two.

To ensure his graduation, the Shields decided to drop him off and

to pick him up every day from high school.             A month or two before

graduation,    however,    Shields   moved     out    of   his   parents’   home

without notice.       Shields returned only to inform his parents that

he could not live by his father’s rules.                   When Shields left

again, it was to Florida in a neighbor’s stolen car.

       Mrs. Shields arranged professional counseling for Shields in

1993, but he quit after three or four visits.                     Shields then

refused to see another professional.            By June 1994, Shields was

no longer taking the anti-depressant medication that the St.

Joseph’s doctor had prescribed, and his behavior deteriorated.

Shields left his parents’ home for good in July 1994 to live in

an abandoned house in the Woodlands.           Mrs. Shields testified that

in   her   opinion,    Shields   could   not   have   murdered     Mrs.   Stiner

unless Mrs. Stiner confronted him first.             She also testified that

she did not believe that he had entered the home with the intent

to hurt Mrs. Stiner.      On cross-examination, Mrs. Shields admitted

that she and her husband had twice changed the locks on the house

                                     11
to prevent Shields from breaking in and stealing.

       Clinical       social     worker       Fran    St.     Peter    performed      a

biopsychosocial assessment on Shields.                      St. Peter performed a

three-hour assessment on Shields the night before her testimony

and interviewed Shields’s mother, father, sister, and brother-in-

law.    St. Peter testified that one of Shields’s close friends had

been       killed    when    Shields    was       eleven.      The    incident,     she

testified, traumatized him.             The family’s move to Colorado then

isolated him and caused him to withdraw.                      St. Peter testified

that Shields’s first introduction to narcotics occurred when he

was    a     thirteen-      to   fourteen-month       old    baby,    when     doctors

prescribed medication to him to ease the pain after he burned

himself.          Shields tried Valium when he was eleven.                   St. Peter

also testified that Shields had consumed alcohol continuously

since the age of fourteen.             By the age of seventeen, 70 to 75 per

cent of Shields’s time related to procuring, using, or recovering

from    drugs       and    alcohol.    St.    Peter    questioned      the    Shields’

attentiveness to their son and stated that the family essentially

led separate lives.

       Dr. Fred Fason testified as to Shields’s alleged future

dangerousness.            He testified that a psychiatrist would need to

perform       a     scientifically-based           medical    evaluation       on    an

individual before making a diagnosis of future dangerousness.                        He

                                             12
also stated that the American Psychiatric Society has recommended

that its members not testify as to future dangerousness because

no test has demonstrated that these opinions are scientifically

valid.     Responding to a hypothetical question that traced the

facts of    Paula   Stiner’s         murder,      Dr.   Fason   admitted   that   his

diagnostic impression was that “he’s a sociopath or antisocial

personality disorder.”

      Dr. James Marquart, a professor of criminal justice at Sam

Houston    University     and    a    sociologist,       testified   as    to   study

results that show that the majority of former death row inmates

in the general prison population do not commit acts of violence

in   the   prison   any   more       than   any    other   prison    inmate.      Dr.

Marquart testified that it is difficult to predict accurately

future dangerousness based solely on the offense committed.

      Perry Evans and Jose Lozano, employees of the Galveston

County Sheriff’s Department, testified that Shields was involved

in four instances of jail misbehavior in over a year.                      Although

officials had classified Shields as a minimum security inmate,

they based this classification on Shields’s representations that

he had no prior criminal record, no chemical dependency problem,

and lived at his family home.                    While in jail awaiting trial,

Shields was involved in a fight, was in an unauthorized area, and

destroyed, altered, or damaged county property or the property of

                                            13
another.

      After hearing both the State’s and the defense’s evidence,

the   jury        answered        the    special        issue   question     of    future

dangerousness in the affirmative and recommended death.

                                             III. LAW

      Section       2253     of    the       Antiterrorism      and    Effective       Death

Penalty     Act    (“AEDPA”)        forecloses        appeal    from   a   state   habeas

proceeding unless a circuit justice or judge issues a COA.5                              We

may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.”6                         To make this

showing, Shields must demonstrate that “jurists of reason could

disagree      with     the         district          court’s    resolution        of    his

constitutional claims or that jurists could conclude the issues

presented     are     adequate          to    deserve     encouragement     to     proceed

further.”7     If the district court denies relief on procedural, as

opposed to constitutional grounds, “a COA should issue when the

prisoner shows, at least, 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



      5
          28 U.S.C. § 2253(c)(1)(A).
      6
          Id. § 2253(c)(2).
      7
       Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing
Slack v. McDaniel, 529 U.S. 473, 483 (2000)).

                                                14
it   debatable      whether    the   district     court    was    correct   in   its

procedural ruling.”8

      To determine whether to grant a COA, we are limited “to a

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

claims.”9         This     threshold    inquiry    “does     not    require      full

consideration of the factual and legal bases adduced in support

of the claims.”10           Instead, we base our determination on “an

overview of the claims in the habeas petition and a general

assessment of their merits.”11           When the district or state court

has imposed the death penalty, “any doubts as to whether a COA

should issue must be resolved in [petitioner’s] favor.”12

      Shields seeks a COA from this court on multiple issues:

      (1)     The district court erred when it found that Shields
              procedurally   defaulted  on   the   majority of his
              ineffective assistance of counsel claims.

      (2)     Trial counsel was ineffective in that he failed to
              present a viable defense during the guilt-innocence
              phase.
              (a) The district court overlooked issues of disputed
                   fact that entitled Shields to proceed on appeal as
                   to all of his ineffective assistance of counsel


      8
       Slack, 529 U.S. at 484 (emphasis added); Matchett v.
Dretke, 380 F.3d 844, 847-48 (5th Cir. 2004).
      9
           Miller-El, 537 U.S. at 327.
      10
           Id. at 336.
      11
           Id.
      12
           Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

                                         15
             claims.
       (b)   Trial counsel failed to present evidence to
             contradict the state’s theory that Shields had
             been “lying in wait” for the victim.
       (c)   Trial counsel was ineffective in that he refused
             to permit Shields to testify to present an
             alternative version of events and because he
             switched defense theories midway through trial.

(3)    Trial counsel was ineffective during the guilt-
       innocence phase of the trial in that he:
       (a) failed to object to the introduction of the hammer
            and knives found at the scene of the crime.
       (b) failed to object to the testimony of Shields’s
            mother, Christine Shields.
       (c) failed to object to the admission of Shields’s
            out-of-court    statements   to     the   Woodland
            subdivision witnesses.
       (d) failed to consult with forensic evidence experts
            to rebut the state’s case.

(4)    Trial counsel’s performance during opening and closing
       arguments at the guilt-innocence phase constituted
       ineffective assistance of counsel.
       (a) Trial counsel failed to object to the state’s
            opening argument that allegedly consisted of
            victim impact information and characterized the
            evidence of guilt as conclusive.
       (b) Trial counsel failed to present an adequate
            closing argument.

(5)    Trial counsel was ineffective during the guilt-
       innocence and punishment phases in that he failed to
       obtain a confidential defense psychiatric expert under
       Ake v. Oklahoma13 to examine Shields.

(6)    Trial counsel’s performance during the state’s case-in-
       chief at the punishment phase constituted ineffective
       assistance of counsel because he:
       (a) failed to require       the   state  to prove the
            extraneous offenses admitted as evidence of future
            dangerousness.


13
     470 U.S. 68 (1985).

                            16
       (b)   allowed incompetent witnesses to testify and
             failed to investigate the witnesses to impeach
             them effectively.

(7)    Trial counsel’s performance during the defense’s case-
       in-chief   at   the    punishment   stage   constituted
       ineffective assistance of counsel because he:
       (a) failed to present the theory of self-defense and
            Shields’s alleged lack of intent to the jury as
            mitigating evidence.
       (b) failed to investigate and to prepare Shields’s
            background history and incompetently presented
            punishment phase evidence.
       (c) failed to prepare adequately the mitigation
            specialist witness, Fran St. Peter.
       (d) admitted damaging evidence through the mitigation
            specialist that would have otherwise been barred
            under Estelle v. Smith.14
       (e) failed to present effectively mitigating evidence.
       (f) failed to present a viable insanity defense or to
            present evidence on Shields’s alleged diminished
            capacity.
       (g) failed to use effectively defense experts Dr.
            Fason and Dr. Marquart.
       (h) elicited positive answers to the special issues ——
            that the jury was to consider to determine whether
            to impose a life sentence or death —— from two
            defense witnesses.

(8)    Trial counsel was ineffective in that he failed to
       present a coherent defense to the state’s case on
       future dangerousness.

(9)    Trial counsel’s performance at the punishment phase was
       ineffective in that he:
       (a) opened the door to the rebuttal testimony of Dr.
            Gripon by introducing psychiatric records produced
            by the state’s mental health expert.
       (b) introduced into evidence exhibits that suggested
            an affirmative answer to the special issues.
       (c) failed to object to the state’s hypothetical
            questions posed to Dr. Gripon.


14
     451 U.S. 454 (1981).

                            17
            (d)   failed to request a hearing under Texas Rule of
                  Evidence 705(b) and to object under Daubert v.
                  Merrell Dow Pharmaceuticals, Inc.15 to determine
                  the   scientific foundations  of   Dr.  Gripon’s
                  opinion.

     (10) Trial counsel was ineffective at the punishment phase
          in that he failed to object to the state’s comment that
          Shields lacked remorse.

     (11) The cumulative effect of trial counsel’s errors
          prejudiced him and deprived him of effective assistance
          of counsel.

     (12) Trial counsel conducted a deficient voir dire, thereby
          depriving Shields of his Sixth Amendment right to an
          impartial jury.

                     IV. COA: Procedural Default

            Whether the trial court erroneously concluded that
            Shields procedurally defaulted on the majority of his
            ineffective assistance of counsel claims.

     We have always required that a habeas petitioner exhaust his

claims in state court before proceeding to federal court on those

claims: “[A] state prisoner seeking to raise claims in a federal

petition for habeas corpus ordinarily must first present those

claims to the state court and must exhaust state remedies.”16

“Under the procedural default doctrine, a federal court may not

consider a state prisoner’s federal habeas claim when the state

based its rejection of that claim on an adequate and independent


     15
          509 U.S. 579 (1993).
     16
       Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001)
(citing 28 U.S.C. § 2254(b)).

                                 18
state ground.”17        If the petitioner fails to present his claims

to   the    appropriate   state      court,   his   claims   are   procedurally

defaulted.       Defaulted claims “will not be regarded as a basis for

granting federal habeas relief.”18              Nevertheless, a petitioner

may overcome any procedural default “if he can demonstrate cause

for the default and actual prejudice as a result of the alleged

violation of federal law.”19            “‘Cause . . . requires a showing of

some external impediment preventing counsel from constructing or

raising the       claim.’”20    To   demonstrate    prejudice,     a    petitioner

must show “‘not merely that the errors at . . . trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.’”21

      A    petitioner     may    also    overcome    procedural        default   by



      17
       Martin v. Maxley, 98 F.3d 844, 846 (5th Cir. 1996).
Shields also argues that Texas’s abuse-of-the-writ doctrine is
not an adequate and independent state ground. For the reasons
stated infra, see n. 70, we reject this argument.
      18
       Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002)
(citing Martinez, 255 F.3d at 239).
      19
           Id.
      20
       McCleskey v. Zant, 499 U.S. 467, 497 (1991) (quoting
Murray v. Carrier, 477 U.S. 478, 492 (1986)) (emphasis in
original).
      21
       Murray, 477 U.S. at 494 (quoting United States v. Frady,
456 U.S. 152, 170 (1982)) (emphasis in original).

                                         19
demonstrating that “failure to consider the claims will result in

a   fundamental         miscarriage       of    justice.”22            To    demonstrate      a

“fundamental          miscarriage       of      justice,”       the        petitioner      must

“establish that under the probative evidence he has a colorable

claim      of   factual    innocence”          ——   or,     “actual     innocence.”23        A

petitioner may demonstrate actual innocence during the guilt-

innocence       phase     by    showing      that,     in    view     of    the    identified

constitutional          error,    “it     is    more      likely    than     not    that   ‘no

reasonable       juror’        would    have    convicted          him.”24          When    the

petitioner challenges a sentence of death, he must establish

actual innocence by showing that “but for a constitutional error,

no reasonable juror would have found the petitioner eligible for

the death penalty under the applicable state law.”25

      Shields contends that the district court erred when it held

that he procedurally defaulted on the majority of his ineffective

assistance       of    counsel     claims.          The     district       court   held    that

Shields had procedurally defaulted on all of his claims except ——

as numbered in this opinion —— 3(a), (9)(c), and (9)(d).                              Shields



      22
           Coleman v. Thompson, 501 U.S. 722, 750 (1991).
      23
       Sawyer v. Whitley, 503 U.S. 333, 339 (1992) (quoting
Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)).
      24
           Schlup v. Delo, 513 U.S. 298, 329 (1995).
      25
           Sawyer, 503 U.S. at 336.

                                               20
argues that during his state habeas proceeding, he filed in the

TCCA an Emergency Motion to Abate Habeas Appeal and for Dismissal

with Prejudice in which he (1) informed the court that habeas

counsel was ineffective in failing to present numerous claims to

the court; (2) asked the court to dismiss his habeas counsel; and

(3) asserted his right to self-representation.             Without providing

reasons, the TCCA denied this motion outright.

     Shields     maintains    that   the   state   court’s   denial   of   his

emergency motion —— which, he urges, was a denial of his Sixth

Amendment right to self-representation —— constitutes cause and

prejudice to excuse the procedural default.             The State, on the

other hand, contends that Shields merely asserts a claim for

ineffective assistance of habeas counsel and that our precedent

controls here.26

     In Ogan v. Cockrell, the petitioner argued for the first

time on appeal that the state court had denied him meaningful

access to the courts, equal protection, and due process when it

refused     to   “remedy     its   earlier   error    of     appointing    him

ineffective [habeas] counsel.”27           While the application to the

Texas Court of Criminal Appeals was pending, Ogan wrote a letter

to the court, in which he asked the court to dismiss his habeas

     26
          Ogan v. Cockrell, 297 F.3d 349 (5th Cir. 2002)
     27
          Id. at 356.

                                      21
counsel and appoint another attorney.28             The letter also included

a pro se motion that requested the removal of Ogan’s appellate

counsel      and       provided     examples      of     counsel’s          alleged

incompetence.29

     The district court rejected Ogan’s argument and dismissed

several of Ogan’s claims as procedurally barred because Ogan’s

appointed habeas counsel had failed to raise them before the

state courts.30        We affirmed the district court and in so doing,

reaffirmed       our    long-standing     holding      that    an     ineffective

assistance of state habeas counsel claim does not constitute

sufficient cause to overcome the procedural bar because there is

no constitutional right to competent habeas counsel.31

     On its face, Ogan clearly forecloses Shields’s arguments.

Shields argues, however, that this matter is distinct from Ogan

because     he     asserted   his   Sixth      Amendment      right    to    self-

representation to the TCCA, which denied him that right.                    Noting

that “cause” requires a force external to the petitioner that

prevents him from developing the record and from asserting his

claims to the state courts, Shields argues that the “Texas Court


     28
          See id. at 365 n. 3.
     29
          See id.
     30
          See id. at 356.
     31
          See id. at 357.

                                        22
of   Criminal         Appeals’        denial        of     Shields       right     to     self-

representation was the ‘external force’ and interference that

made compliance not only impractical but impossible.”

     Shields’s argument, although novel, is meritless.                                   First,

neither     we      nor   the   Supreme    Court          has    established       a    federal

constitutional right to self-representation on collateral review.

Further,       in    Martinez    v.    Court        of    Appeal,      the    Supreme     Court

explicitly held that there is no federal constitutional right to

self-representation             on     direct            appeal        from    a       criminal

conviction.32         It is implausible, therefore, that there would

exist such a right on collateral review.                         Accordingly, the TCCA’s

denial of Shields’s right to self-representation on collateral

review does not demonstrate a substantial showing of the denial

of a constitutional right sufficient to support the granting of a

COA or to excuse his procedural default. Accordingly, we are

barred from considering those claims that Shields failed to raise

before the Texas courts and which the TCCA later dismissed as an

abuse     of   the    writ.      Notwithstanding                this   bar,    however,     our

independent review of the record demonstrates that the district

court held that Shields had procedurally defaulted on one claim

that we find he raised in his state petition.



     32
          528 U.S. 152, 163 (2000).

                                               23
     In his reply brief, Shields specifically argues that he did

not procedurally default on claims (6) through (11).33                    Claim

(11) charges that the cumulative effect of trial counsel’s errors

prejudiced   him   and   deprived     him   of   effective    assistance    of

counsel.     Shields specifically raised this issue in his state

habeas application and thus has not waived it.

     Less clear is whether Shields raised claims (6) through (10)

in his state habeas petition.          Shields argues that these five

claims specifically challenge trial counsel’s performance at the

punishment phase and are not procedurally barred because his

state habeas application specifically challenged trial counsel’s

performance during the punishment phase.              In effect, Shields

argues that because his state habeas application challenged trial

counsel’s    performance   at   his    punishment    phase,    he   did    not



     33
       Shields also asserts that he preserved the other claims
in his federal habeas petition before the district court that
challenge errors at the guilt/innocence phase of the trial.
Shields’s state habeas petition belies this assertion. The only
aspects of the trial challenged in Shields’s state habeas
application were the failure of trial counsel to object to (1)
the testimony of Lang as to the credit card purchase of the suit
two hours after the murder, and (2) the admission of the hammer
and the knives. Whether on purpose on through inadvertence of
counsel, Shields does not seek a COA on the failure to object to
Lang’s testimony at the guilt/innocence phase (although, as we
discuss below, he does challenge the inclusion of this extraneous
offense in the hypotheticals posed to Dr. Gripon at the
punishment phase). As noted below, Shields has properly
preserved his challenge to the hammer and the knives.

                                      24
procedurally default on any claims that he raises in his federal

petition that concern his punishment phase.                          We do not read

Shields’s state habeas petition so broadly.

      Claim (6) alleges that trial counsel was ineffective during

the punishment phase of the trial because he failed to require

the     state    to    prove   the     extraneous        offenses,      and    allowed

incompetent witnesses to testify.                    The substance of claim (6)

challenges       the    testimony    of       John    Hernandez,      the     probation

officer, who testified that: (1) Shields committed car theft (for

which he was never charged or prosecuted); (2) Shields had been

institutionalized        and   had     not    continued       his    counseling     when

released;       and    (3)   Shields’s       own     family   did    not    like    him.

Further, Claim (6) challenges the testimony of Chastain, Holt,

and Matzelle.

      Shields      mentioned    none     of    these    witnesses      in   his    state

habeas application.          Neither did Shields mention the extraneous

offenses.        Although Shields, in his state habeas application,

mentions trial counsel’s ineffectiveness in allowing testimony on

the extraneous offenses at the guilt-innocence phase, the only

witness     (and       extraneous      offense)        that    the     state       habeas

application challenged was Lang, who testified as to the purchase

that Shields made after the murder using Mrs. Stiner’s credit

card.     Lang did not testify during the punishment phase of the

                                          25
trial.     Accordingly, to the extent that Shields now challenges

any   “extraneous      offense”     evidence       at    his   punishment     phase,

Shields did not fairly present this claim to the state court and

has procedurally defaulted on it.

      Shields also asserts that he did not procedurally default on

claim (7), which contains eight sub-claims.                    With the exception

of sub-claim (7)(f), we find no mention of the other claims in

Shields’s state habeas petition.               Shields specifically argued in

his state habeas application that his trial counsel failed to

present evidence on Shields’s alleged brain defects during the

punishment    phase     of    his   trial.34       In    his   federal     petition,

however, Shields alleges in sub-claim (7)(f) that trial counsel

was ineffective in failing to present a viable insanity defense

and evidence on Shields’s alleged diminished capacity during the

guilt/innocence       phase   of    the   trial.        We   find    no   mention   in

Shields’s     state     habeas      petition       that      trial    counsel       was

ineffective    for     failing      to    produce       evidence     of   diminished

capacity or insanity at the guilt/innocence phase, which, Shields

argues, would have provided him with an affirmative defense to

murder.     Accordingly, Shields did not fairly present this claim



      34
       In his state habeas petition, Shields raised this claim
of error with respect to the testimony of Fran St. Peter, who
testified only during the punishment phase of the trial.

                                          26
to the state court and is procedurally barred from bringing it

now.

       Claim (8) of Shields’s federal petition alleges that trial

counsel was ineffective at the punishment phase because he failed

to present a coherent defense to the state’s case on future

dangerousness.        Specifically, Shields contends that trial counsel

failed      to   familiarize       themselves       “with    the    methods     of   risk

assessment of future dangerousness” and failed to cross-examine

Dr. Gripon “on the erroneous correlations in his analysis.”                            In

his    state     habeas     application,     Shields        challenged    the    State’s

hypothetical questions posed to Dr. Gripon and trial counsel’s

failure to object to Dr. Gripon as an expert.                       Neither of these

claims —— properly preserved in federal sub-claims (9)(c)-(d) ——

challenged        trial     counsel’s      failure     to     present    a     “coherent

defense.”         Accordingly, Shields has procedurally defaulted on

this claim.35

       Federal sub-claims (9)(a)-(b) contend that trial counsel was

ineffective       because     he   (a)     opened    the     door   to   the    rebuttal

testimony        of   Dr.   Gripon    by    introducing        psychiatric       records

produced by the State’s mental health expert, and (b) introduced

into evidence exhibits that suggested an affirmative answer to


       35
       In any event, the arguments in this claim are somewhat
preserved in federal sub-claims (9)(c)-(d).

                                            27
the special issues.           Shields has procedurally defaulted on these

two sub-claims.            Nowhere in his state habeas petition did he

challenge the introduction of exhibits at the punishment phase.

Accordingly, Shields procedurally defaulted on these claims.

      Federal     claim          (10)   alleges     that       trial   counsel       was

ineffective at the punishment phase in that he failed to object

to   the    state’s       comment   during     closing     argument    that    Shields

lacked remorse.            Specifically, Shields alleges that the State

violated Griffin v. California36 because the comment that Shields

lacked     remorse    indirectly        commented    on    Shields’s    refusal      to

testify, which is protected by the self-incrimination clause of

the Fifth Amendment.              After careful review of Shields’s state

habeas petition, we find no mention —— direct or indirect —— of

this claim.          It    is,    therefore,    procedurally      barred      from   our

review.

      Accordingly, we conclude that jurists of reason would not

disagree with the district court’s conclusion that Shields is

procedurally      barred         from    asserting       the    majority       of    his

ineffective assistance of counsel claims.                       We agree with the

district court that Shields properly preserved claims (3)(a),

(9)(c), and (9)(d).              We disagree with the district court that



      36
           380 U.S. 609 (1965).

                                          28
Shields    procedurally    defaulted    on    claim   (11),   his    cumulative

error claim.      We hold that jurists of reason could disagree

whether the district court was correct in its procedural ruling

on this claim.37          Because Shields must also demonstrate the

denial of a constitutional right on this claim,38 however, we

resolve below whether Shields is entitled to a COA on the four

claims that he has properly preserved.

   V.     COA: Preserved Claims (3)(a), (9)(c), (9)(d), and (11)

     A.     Legal Standard

     To    be   entitled    to   relief      under    the   AEDPA,   a   habeas

petitioner must show that the state court resolution of his case

was either “contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme

Court of the United States,” or “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.”39                    Our

review on a request for a COA is similarly circumscribed by the

AEDPA, and “our duty is to determine not whether [Shields] is

entitled to relief, but whether the district court’s conclusion



     37
          See Slack, 529 U.S. at 484.
     38
       See id. at 485 (“Section 2253 mandates that both showings
be made before the court of appeals may entertain the appeal.”).
     39
          28 U.S.C. § 2254(d).

                                       29
(that the state court adjudication was not contrary to or an

unreasonable       application    of     federal    law)    is   one      about    which

jurists of reason could disagree.”40

     As     all     of   Shields’s      preserved     claims        relate    to     the

ineffective assistance of his trial counsel, he must show both

(1) that      counsel’s representation was deficient, and (2) that

trial     counsel’s      deficient     performance       prejudiced       him.41      If

Shields fails to carry his burden on either element, we may

reject his claim.42

     To     establish      that   counsel’s      performance        was    deficient,

Shields must show that “counsel’s representation ‘fell below an

objective standard of reasonableness.’”43                  Although no specific

guidelines    exist      to   evaluate    attorney    conduct,       “[t]he       proper

measure of        attorney    performance      remains     simply    reasonableness

under prevailing professional norms.”44

     To show that a deficient performance by trial counsel was



     40
       Thacker v. Dretke, —— F.3d ——, 2005 WL 18542, at *2 (5th
Cir. Jan. 5, 2005); see Williams v. Puckett, 283 F.3d 272, 277
(5th Cir. 2002).
     41
          Strickland v. Washington, 466 U.S. 668, 687 (1984).
     42
          See id. at 697.
     43
       Soffar v. Dretke, 368 F.3d 441, 472 (quoting Strickland,
466 U.S. at 688).
     44
          Strickland, 466 U.S. at 688.

                                          30
prejudicial, Shields must demonstrate “a reasonable probability

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

proceeding would have been different.”45                “An error by counsel,

even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no

effect on the judgment.”46              Rather, we must determine whether

“there is a reasonable probability that counsel’s errors affected

the outcome of the trial.”47            “A reasonable probability need not

be proof by a preponderance that the result would have been

different,    but    it     must   be   a   showing   sufficient   to   undermine

confidence in the outcome.”48

     B.     Claim (3)(a)

     Shield’s       first    properly-preserved       claim   alleges   that   his

trial counsel was ineffective during the guilt-innocence phase of

the trial because he failed to object to the admission into

evidence of the hammer and knives found at the scene of the

crime.     With regard to both weapons, Shields specifically argues

that he merits a COA on this claim because no evidence connected



     45
          Id. at 694.
     46
          Id. at 691.
     47
          Soffar, 368 F.3d at 478.
     48
       Williams v. Cain, 125 F.3d 269, 279 (5th Cir. 1997)
(citing Strickland, 466 U.S. at 694).

                                            31
the weapons to the crime, or, stated differently, no witness

testified and no testing revealed that the weapons introduced by

the prosecution were the weapons used during the crime.

     Citing     Texas    Rule    of    Evidence        403,   the     district    court

rejected this claim on the grounds that the probative value of

the hammer and the knives outweighed their prejudicial effect,

and trial counsel need not raise a meritless objection.                        Agreeing

with the state court, the district court found that if trial

counsel had objected to the admission of this evidence, the state

trial court would not have been wrong to overrule the objection.

     We agree.      Under both the Federal Rules of Evidence and the

Texas Rules of Evidence, relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice.49       The advisory committee’s notes to Rule 403

define    “unfair   prejudice”        as   “an    undue       tendency   to    suggest

decision on an improper basis, commonly though not necessarily,

an emotional one,” and we have adopted this definition.50                        When a

defendant    challenges    evidence        on    the    basis    of    Rule    403,   we

require courts      to   “look    at   the      ‘incremental        probity’     of   the

evidence in question in analyzing the offering party’s need to

     49
          FED. R. EVID. 403; TEX. R. EVID. 403.
     50
       FED. R. EVID. 403 advisory committee’s note; see also
Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1334 (5th
Cir. 1985).

                                           32
make    this    form   of   proof   and   the   tendency    of   the   questioned

evidence to invite an irrational decision.”51

       Viewing the hammer and the knives within this rubric, we

find that their admission neither suggested a decision on an

improper basis nor invited an irrational decision.                     The hammer

and the knives were highly probative of the state’s case.                   Tracy

Stiner discovered the hammer on the floor of his home when he

discovered his wife’s body.           He testified that this hammer           was

his and that it was in the garage when he left for work that

morning.       Detectives called to the scene found the hammer in the

breakfast room together with an overturned chair, a purse, a

checkbook, and an X-Ray folder from the doctor’s office.52                     In

addition, the medical examiner, Dr. Korndorffer, testified that

Paula Stiner suffered a laceration on the top of her head and a

contusion on her forehead consistent with blunt force trauma.

Dr.    Korndorffer      testified     further     that     these   wounds    were

consistent with the hammer found at the scene.               He also testified

that Paula Stiner suffered blunt force trauma to her hands, which

bent and damaged her rings and knocked the stone out of one of


       51
       Jackson, 750 F.2d at 1334 (citing United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)).
       52
       Evidence presented at trial showed that Paula Stiner left
work early on the 21st to visit the doctor’s office and, when she
left, she was carrying a folder of X-Rays.

                                          33
them.

     Dr. Korndorffer testified additionally that the knife wounds

to Paula Stiner’s body were caused by a knife with a blade that

was five inches long and three-fourths of an inch wide.     Tracy

Stiner testified that a knife with a blade of five inches length

and a width of three-fourths of an inch was missing from the

knife set on the counter, and the prosecution introduced the set

of knives from the Stiner home to show that the missing one fit

the descriptions of Dr. Korndorffer and Tracy Stiner.

     We conclude that the probative value of the hammer and the

knives is not outweighed by unfair prejudice.   The record clearly

demonstrates that the hammer was the one found at the scene.

Record evidence regarding the knives belies Shields’s assertion

that they were irrelevant, given Mr. Stiner’s testimony that the

one knife missing from the set fit the description of the weapon

that caused the stab wounds to Paula Stiner’s body.

     More importantly, because Shields specifically argues that

no testimony or evidence proved that these were the weapons used

to perpetrate the crime, we view Shields’s claims of error to the

admissibility of the weapons as a challenge to their “chain of

custody.”   As we have explained, “[i]n cases where the defendant

questions whether the evidence offered is the same as the items

actually seized, the role of the district court is to determine

                               34
whether      the     government      has    made   a    prima      facie   showing       of

authenticity.”53        A “break in the chain of custody simply goes to

the weight of the evidence, not its admissibility.”54                        The above-

noted record evidence establishes that the State made out a prima

facie case of authenticity.                Consequently, any possible break in

the    chain    of    custody    would      only   go   to   the    weight    the      jury

accorded the hammer and the knives.

       We cannot say that trial counsel was ineffective for failing

to object to the admission of the hammer and the knives.                          Shields

has failed to make a substantial showing of the denial of a

constitutional right with regard to his evidentiary challenge.

Thus, we decline to issue a COA on this claims.

       C.      Claim (9)(c)

       Shields advances that trial counsel was ineffective because

he    failed    to    object    to   the    hypothetical     questions       on    future

dangerousness         that     the   State    posed     to   Dr.     Gripon       at    the

punishment phase of the trial.                The prosecutor posed three such

questions to elicit Dr. Gripon’s opinion on Shields’s future

dangerousness:

               I would like to go over a hypothetical question

       53
            United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993).
       54
       Id. (citing United States v. Shaw, 920 F.2d 1225, 1229-30
(5th Cir. 1991)); see also United States v. Dixon, 132 F.3d 192,
197 (5th Cir. 1997) (quoting Sparks).

                                             35
with you, Doctor: Assume with me that the murder was
committed, the murder of Paula Stiner was committed by
a 19-year-old male who burglarized her home and who
laid in wait for his victim, Paula Stiner, for 5 ½
hours.   And during that time he used the phone, he
gathered up items that he wanted to steal, he fixed
himself some food in a skillet, he selected his weapons
which were a hammer and a knife.
     Assume further with me the victim entered the
house who was immediately assaulted with the hammer,
then the knife, struck some 27 or more times; and
during her horrific struggle to survive, was overcome
and died 10 to 15 minutes after the initial assault
began.
     Assume with me further that immediately after the
assault on the victim that the Defendant went over to
the victim’s purse which was only a very short distance
away from her body, rummaged through the purse, taking
what he wanted, including credit cards, [and] the keys
to her car, which was parked in the garage.
     Assume that the person drove to a shopping mall in
Paula Stiner’s car. Within about an hour and a half of
having committed the murder, he was at the mall.     He
purchased items of clothing. He was described as cool,
polite, calm. He said that the card was his mother’s
credit card.
     Tell us, Doctor, what does that behavior tell you
as a psychiatrist?


     Assume further that the man, about two hours or so
later, met with some friends of his at a fast food
restaurant and again acted normal; was not intoxicated,
according to them; claimed that the car he was driving
was borrowed from a friend, that it was even for sale.
     Assume further that later that evening he went out
with one of his friends to a nightclub in the
Montgomery County area, acted normal, had some beers,
just had a good time.
     What does that behavior tell you, Doctor, about
that person?


     Assume that during the year prior to the murder
that the man stole from his parents, he burglarized his

                          36
       parents’ home.   What does that tell you?                    What does
       that behavior tell you, Doctor?

       In     response   to    these    hypothetical       examples,       Dr.   Gripon

testified that the described behavior demonstrates premeditation,

viciousness, and a lack of concern for the victim shown by “the

going about [of] the normal activities of life as if nothing had

actually happened.”           He stated that “[a] person who can do that

has little concern for their fellow man, if any.”                          Dr. Gripon

also        stated   that     such     behavior     demonstrates       a     lack     of

responsibility and a “rather callous, very hard nature.”55

       Shields asserts that the hypothetical scenarios exaggerated

and    mischaracterized        the   facts     of   the    crime.    Shields        also

contends that the extraneous offenses —— such as the credit card

purchase —— should not have been included in the hypothetical

questions.

       Shields’s arguments are meritless.                 He does not explain how

the hypothetical examples mischaracterize or exaggerate the facts

that the State presented at trial.                  Based on our review of the

record, the hypothetical presentations neither mischaracterized


       55
       Shields relies heavily on this argument because in the
affidavit of an investigator who interviewed the jurors after the
jury imposed the death penalty —— attached to his state habeas
application —— one of the jurors stated that Dr. Gripon made a
better presentation on future dangerousness than the defense
witnesses and that “[s]he believe[d] that all of the other jurors
felt the same way about Dr. Gripon.”

                                          37
nor exaggerated the facts of Paula Stiner’s murder.                Rather, they

paralleled the evidence that the state introduced at trial.                     If

trial     counsel    had    objected,   his   objection        would   have   been

meritless.      The failure to raise meritless, futile objections

does not constitute ineffective assistance of counsel.56

     As for Shields’s “extraneous offenses” argument, he fails to

point to an extraneous offense in the hypothetical examples.                  Our

review of Shields’s state habeas petition does reveal, however,

that he referred to Mark Lang’s testimony about the credit card

purchase of the suit that occurred two hours after the murder.

The record clearly reflects that Lang testified to the facts that

the prosecutors included in the hypothetical questions.

     Further, we reject any possible argument that Shields makes

with regard     to    the   admissibility     and   use   of    such   testimony.

Tracy Stiner testified that when he arrived home on the day of

the murder, he found his wife’s purse and its contents scattered

around on the floor of their breakfast area.                He also testified

that Mrs. Stiner carried several credit cards in her purse.                   Lang

testified that on that same day, Shields used a credit card to

purchase $271.71 in clothing from DeJaiz’s.               The name on the card



     56
       See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994);
Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (citing Murray
v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) (per curiam)).

                                        38
was Paula Stiner.       Shields, identified by Lang, signed the charge

using     the   name   Tracy    Stiner,      the    victim’s       husband.         Lang’s

testimony tied Shields to the scene of the crime —— where he

stole the credit card —— and to the attack itself.

     Such testimony is clearly admissible.                  Any objection to this

testimony under Texas Rule of Evidence 404(b), as Shields appears

to urge, would have been futile.                   Under Texas Rule of Evidence

404(b), “[e]vidence        of   other       crimes,      wrongs,    or   acts   is     not

admissible to prove the character of a person in order to show

that he acted in conformity therewith.”57                    The prosecution did

not use the testimony of Lang —— or any corroborating evidence ——

to prove the character of Shields.                  This evidence had relevance

apart from any possible tendency to prove Shields’s character.58

     Further, under our and Texas law, “[f]ruits of the same

crime     are   admissible      and    do     not    constitute       an     extraneous

offense.”59        Shields’s     use    of       Paula     Stiner’s        credit    card

     57
       TEX. R. EVID. 404(b).          This language tracks that of federal
Rule of Evidence 404(b).
     58
       See United States v. Posada-Rios, 158 F.3d 832, 871 (5th
Cir. 1998); Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App.
1995).
     59
       Skidmore v. State, 530 S.W.2d 316, 321 (Tex. Crim. App.
1975); see also United States v. Price, 877 F.2d 334, 337 (5th
Cir. 1989) (“Where evidence is inextricably intertwined with the
charged offense, it is relevant and not extraneous. If the
challenged extraneous evidence is inseparable from the evidence
of the charged offense, it is unnecessary to consider its

                                            39
constituted fruits of his crime.          We are satisfied that jurists

of reason would not debate the district court’s ruling in this

regard, and we deny a COA on this claim.

       D.   Claim 9(d)

       Shields insists that his trial counsel was ineffective for

failure to (1) object to Dr. Gripon’s testimony based on the

inadmissible reports on which Dr. Gripon based it,60 and (2)

challenge Dr. Gripon under Texas Rule of Criminal Evidence 702.

Specifically, Shields emphasizes that trial counsel failed to

voir dire Dr. Gripon under Texas Rule of Criminal Evidence 705(b)

to   determine   the   foundations   of   his   opinion.   Shields   also

contends that trial counsel failed to challenge Dr. Gripon’s

qualification as an expert under Texas Rule of Criminal Evidence

702.    We reject Shields’s arguments and decline to issue a COA on

this claim.

       Texas Rule of Criminal Evidence 705(b) “allows counsel to

voir dire expert witnesses outside the presence of the jury to




admissibility under Rule 404(b).”) (citations and quotations
omitted).
       60
       Contrary to the state’s argument and the district court’s
finding, Shields explicitly argued in his state habeas petition
that Dr. Gripon testified on the basis of reports that were never
admitted at trial.

                                     40
learn what facts the expert is basing his or her opinion on.”61

“[N]either the rule nor the case law creates a presumption of

error if counsel fails to request voir dire.”62                   Texas courts

have often held that the rule is not violated when nothing in the

record indicates that counsel did not know on what facts the

expert witness based his opinion.63           In other words, when defense

counsel knows the basis of the expert’s opinion, there is no need

to invoke this rule.64

      Here, the record confirms beyond cavil that defense counsel

was   cognizant    of   the   reports    on   which   Dr.    Gripon     based   his

opinion.      Although Shields points to no specific reports in his

federal petition, in his state habeas petition, he challenged Dr.

Gripon’s     reliance   on    the   reports   of   Drs.     Felthous,    Barrett,

Hungerford, Franke, and Freedman.             If Shields knew of the basis

of Dr. Gripon’s opinion, his counsel must have.                   Further, Dr.

Gripon explicitly testified at trial that he based his opinion on

these reports.       It is thus clear that because defense counsel

knew of the basis of Dr. Gripon’s opinion, it would have been



      61
       Saenz v. State, 103 S.W.3d 541, 546 (Tex. Ct. App. 2003);
see Brown v. State, 974 S.W.2d 289, 292 (Tex. Ct. App. 1998).
      62
           Saenz, 103 S.W.3d at 546; Brown, 974 S.W.2d at 292.
      63
           Saenz, 103 S.W.3d at 546; Brown, 974 S.W.2d at 292.
      64
           Saenz, 103 S.W.3d at 546; Brown, 974 S.W.2d at 292.

                                        41
futile to invoke Rule 705(b).

       In addition, we note that Shields provides no explanation as

to why any of the reports on which Dr. Gripon based his testimony

would have been inadmissible.                  In any event, under Texas Rule of

Criminal Evidence 703, an expert “can . . . base his opinion

partially       on    facts       or   data    which    is     inadmissible,        if    such

information          is   commonly         relied    upon     by    experts      within    his

field.”65        We perceive no ineffective assistance in counsel’s

failure to challenge Dr. Gripon’s reliance on, inter alia, the

autopsy      report       of   Dr.     Hungerford      and    psychiatric        reports    on

Shields      from     1993.          In    addition,    our        review   of    the    trial

transcript convinces us that defense counsel cross-examined Dr.

Gripon, including questioning him at the opening of his testimony

with regard to the validity of his expert opinion.                               There is no

merit to this claim.

       Shields       also      insists      that    trial    counsel    was      ineffective

because he failed to object to Dr. Gripon on the basis of Daubert

v.    Merrell    Dow      Pharmaceuticals,          Inc.66         Specifically,     Shields

argues that “the methodology used by Dr. Gripon was inadequate

and    unreliable         under      the    Daubert    test    because      he    based    his

       65
       Joiner v. State, 825 S.W.2d 701, 707-08 (Tex. Crim. App.
1992) (citing Nethery v. State, 692 S.W.2d 686, 702 (Tex. Crim.
App. 1985)).
       66
            509 U.S. 579 (1993).

                                               42
assessment of future dangerousness entirely on his judgment, not

on any empirical data concerning base rates of violence of life-

sentenced prisoners convicted of capital murder, nor on any other

data that the science of violence risk assessment recognizes.”

      As noted, though, Dr. Gripon based his psychiatric opinion

on future dangerousness on the records that related to Shields

and Paula Stiner’s murder.               Even though we are somewhat troubled

by   the   absence       of    a   personal      interview    of    Shields     by   Dr.

Gripon,67 we cannot say that counsel was ineffective in failing

to make a Daubert objection to Dr. Gripon’s testimony.                               Our

review of the record demonstrates that Dr. Gripon adequately

established        his    expert        credentials,    which        included    prior

testimony as to the future dangerousness of a perpetrator on

between twelve to eighteen occasions.                   We have also noted our

awareness     of    no        clearly    established    law        that   prevents    a

psychiatrist from basing his opinion on the records of the case

and the psychiatric records of the perpetrator.                           Shields has

established no prejudice here.

      Although trial counsel did not object to the testimony of

Dr. Gripon, the defense did put on its own expert witnesses

during the punishment phase to rebut Dr. Gripon’s testimony.                         Dr.


      67
       See Flores v. Johnson, 210 F.3d 456, 458 (5th Cir. 2000)
(Garza, J., specially concurring).

                                            43
Fason      testified     as     to   the   possible     unreliability            of    future

dangerousness testimony, and Dr. Marquart testified that studies

reveal that capital inmates are no more likely to commit future

violent acts than any other inmates.                      Trial counsel was not

ineffective when he elected to rely on rebuttal witnesses to

discredit Dr. Gripon’s testimony instead of futilely filing a

Daubert objection.            We reject Shields’s arguments and deny a COA

on this claim.

      E.      Claim (11)

      In    his    final      properly-preserved       claim      of   error,         Shields

argues that he deserves a COA on his claim that the cumulative

effect of trial counsel’s error denied him ineffective assistance

of   counsel.       As     we   conclude    that      there   was      no    such     error,

however, there can be no cumulative error.68

      F.      Conclusion

      For    the    foregoing        reasons,    we   deny    a   COA       on   Shields’s

properly-preserved claims.             We hold that jurists of reason would

not debate the district court’s rulings.                  The district court did

not err when it denied Shields a COA on these claims and granted

summary judgment in favor of the State.



      68
       See United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir.
1992) (“Because we find no merit to any of Moye’s arguments of
error, his claim of cumulative error must also fail.”).

                                            44
                     VI.   Evidentiary Hearing

     Shields also urges that the district court erred when it

failed to grant his request for an evidentiary hearing on his COA

claims.   Shields reiterates many of the arguments that he raised

in his challenge to the district court’s ruling on his procedural

default claims.   Shields contends that 28 U.S.C. § 2254(e)(2)

does not bar an evidentiary hearing here because he did not fail

to develop the factual bases of his claims in state court.69

Shields asserts that because the Texas courts impeded the factual

development of his claim —— thus involving no failure on his part

—— Section 2254(e)(2) does not apply.    Shields maintains that he

is entitled to an evidentiary hearing to resolve factual disputes

that concern


     69
       Section 2254 provides
     (2) If the applicant has failed to develop the factual
     basis of a claim in State court proceedings, the court
     shall not hold an evidentiary hearing on the claim
     unless the applicant shows that ——
     (A) the claim relies on ——
     (i) a new rule of constitutional law, made retroactive to
     cases on collateral review by the Supreme Court, that was
     previously unavailable; or
     (ii) a factual predicate that could not have been
     previously discovered through the exercise of due
     diligence; and
     (B) the facts underlying the claim would be sufficient
     to establish by clear and convincing evidence that but
     for constitutional error, no reasonable factfinder
     would have found the applicant guilty of the underlying
     offense.
28 U.S.C. § 2254(e)(2) (emphasis added).

                                 45
     procedural default, and those relating to “cause” and
     “prejudice” include the competence of counsel, whether
     state action impeded Petitioner’s ability to present
     his claims on direct appeal and on state habeas,
     whether the basis of trial counsel’s decisions were
     tactical or negligent and prejudicial, and the many
     other factual issues detailed herein.

Shields further contends that the district court erred when it

did not grant him an evidentiary hearing because the state court

never “adjudicated” his claims, but only issued a perfunctory

one-page denial to the 600-plus-page petition.70

     Accordingly, pursuant to Section 2254(e)(2), because Shields

does not contend that his claims of error rely on a new rule of

constitutional law or a factual predicate that he could not have

discovered   with    due   diligence,   he   is   not   entitled   to   an

evidentiary hearing if he failed to develop a factual basis for

his claim in the state court proceedings.71

     Shields was not diligent in pursuing the factual predicates

of his claims.      He contends that he exercised due diligence by

     70
       Shields also contends that he is entitled to an
evidentiary hearing on whether Texas’s abuse-of-the-writ doctrine
is an adequate and independent state ground. This argument is
foreclosed by our holding in Emery v. Johnson, 139 F.3d 191, 195-
96 (5th Cir. 1997), that Texas’s abuse-of-the-writ doctrine
constitutes an adequate state ground. In Barrientes v. Johnson,
221 F.3d 741, 759-60 (5th Cir. 2000), we held that the doctrine
has constituted an independent state ground since the TCCA’s
decision in Ex parte Berber, 879 S.W.2d 889 (Tex. Crim. App.
1994).
     71
       See Williams v. Taylor, 529 U.S. 420, 429-30 (2000);
McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998).

                                   46
requesting an evidentiary hearing in state habeas proceedings,

and that the state court impeded any factual discovery when it

perfunctorily      denied   his    request.         In   sum,    he   asserts    that

Section    2254(e)(2)     is    inapplicable        here.       Shields   concedes,

however, that he devoted only one line of his 600-plus-page state

habeas petition to his request for an evidentiary hearing, when

he asked that he “be accorded an evidentiary hearing on the

allegations in this petition.”               Although the Supreme Court has

said that “failure to develop the factual basis of a claim”

connotes fault on the part of the petitioner, we have held that

“[m]ere requests for evidentiary hearings will not suffice; the

petitioner must be diligent in pursuing the factual development

of his own claim.”72        Shields points to no factual dispute that

the state court, or, for that matter, the district court, could

have resolved by granting his request for an evidentiary hearing.

Neither does Shields proffer any specific evidence that would

change the state or district courts’ resolution of his claims.

     Even if we were to determine that Shields did not fail to

develop    the    factual       basis   of    his     claim     in    state   court,

“overcoming      the   narrow    restriction     of      §   2254(e)(2)   does   not

guarantee a petitioner an evidentiary hearing, it merely opens



     72
          Dowthitt v. Johnson, 270 F.3d 733, 758 (5th Cir. 2000).

                                        47
the door for one.”73        The district court still retains discretion

to grant or to deny an evidentiary hearing under Rule 8 of the

Rules       Governing   Section   2254   cases.74     To    obtain    a   hearing,

Shields would have “to show either a factual dispute which, if

resolved in his favor, would entitle him to relief or a factual

dispute that       would   require    development     in   order     to   assess a

claim.”75

       Shields     procedurally      defaulted   on   the    majority      of   his

claims.       As such, we are barred from considering those claims,

evidentiary hearing or not.            The alleged ineffective assistance

of Shields’s state habeas counsel does not constitute cause for

the procedural default, and an evidentiary hearing would have

shed no light on this issue.76

       As to those claims on which Shields did not procedurally

default, the district court did not abuse its discretion when it

denied his request for an evidentiary hearing.               We have held that



       73
            Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000).
       74
            RULES GOVERNING § 2254 CASES 8(a); see Murphy, 205 F.3d at
815.
       75
       Id. at 815; see Robison v. Johnson, 151 F.3d 256, 268
(5th Cir. 1998).
       76
       Ogan, 297 F.3d at 357; see also Holland v. Jackson, ——
U.S. ——, 124 S. Ct. 2736, 2738 (2004) (per curiam) (“Attorney
negligence, however, is chargeable to the client and precludes
relied unless the conditions of § 2254(e)(2) are satisfied.”).

                                         48
“where a district court has before it sufficient facts to make an

informed decision regarding the merits of a claim, a district

court does not abuse its discretion in refusing to grant an

evidentiary       hearing     (even     where    no   factual   findings      are

explicitly    made    by     any   state    court).”77    Our   review   of   the

instant record demonstrates that the district court reviewed the

pleadings, the record, and all of the evidence in support of

Shields’s claims.          Indeed, even though the district court held

that Shields had procedurally defaulted on the majority of his

claims, it went on to address the merits of those claims, further

supporting our conclusion that it thoroughly reviewed the record.

     Moreover, we have held that conclusional and unsupported

allegations do not entitle a habeas petitioner to an evidentiary

hearing.78    Our review of this record demonstrates that Shields

offers us no specific evidence that the jury did not consider at

trial.    Neither does he point to any specific evidence that would

create a factual dispute as to the four claims on which he did

not procedurally default.             The district court had before it the

affidavit of Shields’s state habeas counsel and still determined,

as   we    have      done,     that     state    habeas   counsel’s      alleged

     77
       Murphy, 205 F.3d at 816 (citing McDonald v. Johnson, 139
F.3d 1056, 1060 (5th Cir. 1998)).
     78
       See id. (citing Ward v. Whitley, 21 F.3d 1355, 1367 (5th
Cir. 1994)).

                                           49
ineffectiveness does not constitute a sufficient factual dispute

to require an evidentiary hearing.      The Rules Governing Section

2254 cases “‘do[] not authorize fishing expeditions.’”79

                           VII. CONCLUSION

     For the foregoing reasons, we hold that the district court

did not err when it denied a COA to Shields and denied Shields an

evidentiary hearing.    We therefore deny Shields’s application for

a COA.

COA DENIED.




     79
          Id. at 816-17 (quoting Ward, 21 F.3d at 1367).

                                  50
